Court Opinions: Colorado Supreme Court Opinions for May 15

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

In the Matter of Former Judge Mark Thompson

The Colorado Supreme Court adopted recommendations for a public censure of former Summit County District Court Judge Mark Thompson.

On Aug. 29, 2022 the Colorado Supreme Court accepted Thompson’s stipulation to a public censure and a 30-day unpaid suspension from his judicial duties. Those sanctions stemmed from Thompson’s guilty plea to disorderly conduct stemming from Thompson’s admission to having “recklessly” displayed an AR-15 style assault rifle during a dispute with his adult stepson, according to court records. Thompson’s plea sentence required him to take anger management treatment.

Thompson was suspended from his judicial duties from Oct. 15-Nov. 13, 2022. In conjunction with the disciplinary action, Thompson entered a separate stipulation with the Supreme Court’s Office of Attorney Regulation Counsel where he received a six-month stayed suspension of his law license and one-year of probation, where he was expected to provide updates regarding his anger management treatment. Thompson’s one-year probation term began July 26, 2022.

In an April 24 Stipulation for Public Censure, Thompson and the Colorado Commission on Judicial Discipline agreed to the following facts:

  • In the fall of 2022, Thompson presided over a personal injury case set to go to trial in November. On Nov. 15, 2022, two days after Thompson returned from his unpaid suspension, he presided over a pre-trial readiness conference in the case and when he learned of multiple issues going on in the case, including that neither counsel complied with a pre-trial order to submit witness lists, exhibit lists, proposed jury instructions and a joint case management certificate, Thompson lost his temper on the the record, berating counsel. 
  • In lieu of the commission seeking a temporary suspension, Thompson resigned from office Jan. 13. 

Thompson responded by taking full responsibility for his conduct and agreeing to this Stipulation for Public Censure. The commission recommended the Colorado Supreme Court issue a public censure and that court adopted the recommendation.

Chief Justice Brian Boatright and Justice Carlos Samour didn’t participate in consideration of the censure. 

Liggett v. People

The Colorado Supreme Court en banc affirmed a judgment in a murder case.

Ari Liggett was charged with first-degree murder after being accused of killing his mother. Liggett pleaded not guilty by reason of insanity, but he was ultimately found guilty by a jury.

Liggett raised two issues for review with the Colorado Supreme Court. Liggett argued the trial court violated his Fifth Amendment rights by ruling the prosecution could use psychiatric evidence coming from Liggett’s voluntary custodial statements to “rebut any evidence presented that [he] was insane at the time of the alleged offense,” even though authorities got those statements in violation of his Miranda rights. Liggett also argued the trial court erred by allowing the prosecution to subpoena and present privileged information from his non-physician medical providers. 

The high court wrote it’s undisputed that by pleading NGRI, Liggett waived any claim of privilege concerning communications made by Liggett to a physician or psychologist regarding his mental condition, according to Colorado Revised Statute 16-8-103.6(2)(a). Liggett argued the trial court improperly expanded the waiver to other medical providers like nurses and therapists.

The Colorado Court of Appeals upheld Liggett’s conviction in 2018. The Colorado Supreme Court affirmed the appeals court’s judgment. The high court held that when a defendant presents psychiatric evidence supporting their insanity defense, they open the door to the admission of psychiatric evidence rebutting that defense, even if it includes the defendant’s voluntary but non-Miranda compliant statements.

The Colorado Supreme Court also held 16-8-103.6’s waiver of privilege to communications made by a defendant to a physician or psychologist includes communications made to a physician’s or psychologist’s agents. The high court found that because the non-physician medical providers who testified at Liggett’s trial made their observations as agents of Liggett’s physicians, Liggett waived statutory privileges he shared with those providers. 

The judgment was affirmed. 

Justice Monica Márquez, joined by Justice Melissa Hart, dissented. According to the dissent, under the exclusionary rule, the government cannot use illegally obtained evidence in its case-in-chief and that illegally obtained evidence includes a defendant’s statements to police taken in violation of Miranda. The dissent added this case concerns the narrow impeachment exception to this rule, which allows the prosecutors in a criminal proceeding to introduce illegally obtained evidence to impeach the defendant’s own testimony. 

“The majority greatly expands this impeachment exception to hold that the prosecution may use a defendant’s unconstitutionally obtained statements to police as substantive evidence to rebut a defendant’s insanity defense—regardless of whether the defendant testifies,” Márquez wrote. “Today’s decision disregards the narrow purpose and scope of the impeachment exception established by the Supreme Court. It all but eviscerates the protections of the Fifth Amendment and the exclusionary rule for defendants who rely on mental capacity defenses.”

State of Colorado et al. v Center for Excellence in Higher Education, Inc. et al.

The Colorado Supreme Court en banc affirmed and reversed in part a judgment in a case connected to the Colorado Consumer Protection Act and the Colorado Uniform Consumer Credit Code.

In 2014, after a two-year investigation, Colorado’s Attorney General and the administrator of UCCC, filed suit against CollegeAmerica, alleging it deceptively marketed its degree programs and misled students about the chances graduates would earn more money and get better jobs with a CollegeAmerica degree. 

The state also alleged CollegeAmerica deceptively advertised and offered its EduPlan loan program as a way to make college affordable and help students reestablish their credit, despite CollegeAmerica’s knowledge a large percentage of students defaulted on EduPlan loans.

The state relied on the allegations as the basis for six claims for relief under CCPA and one claim for relief under UCCC. The state sought a permanent injunction; restitution in the form of disgorgement of the tuition and fees paid by most of the students who registered at a CollegeAmerica campus in Colorado since 2006 or other equitable relief; civil penalties of $3 million; and attorney fees and costs, among other things.

In 2015, CollegeAmerica requested a jury trial on each of the state’s claims. The state moved to strike and a trial court granted the state’s motion. The trial court found CollegeAmerica wasn’t entitled to a jury trial on either the state’s CCPA claims or its UCCC claim because the state’s claims were equitable in nature. 

On the eve of the bench trial, the trial court denied CollegeAmerica’s pretrial dispositive motions, finding the significant public impact element outlined by the state high court in the 1998 case Hall v. Walter didn’t apply to a civil enforcement action brought by the attorney general because Hall had been applied exclusively in cases involving private litigants.

Two weeks after the trial ended, the parties each submitted proposed findings of fact and conclusions of law for the court’s review. In CollegeAmerica’s proposed order, it re-raised the significant public impact issue, drawing the court’s attention to the fact a state trial court ruled the significant public requirement applied to cases brought by the attorney general. CollegeAmerica proposed the trial court hold that the state needed to show significant public impact to prevail on its CCPA claims.

CollegeAmerica also requested the trial court conclude, in respect to specific claims, the evidence the state presented at trial wasn’t sufficient to satisfy the significant public impact requirement. 

The trial court didn’t issue its finding of fact, conclusion of law and judgment until almost three years later. In the meantime, an appeals court affirmed a pertinent portion of the state trial court decision CollegeAmerica referenced in its proposed findings of fact and conclusions of law, State ex rel. Weiser v. Castle L. Grp., LLC — concluding the state was required to prove significant public impact in CCPA enforcement actions, superseded by statute.

With that appellate decision, the state filed a motion for leave to submit supplemental proposed findings of fact and conclusions of law on the question of significant public impact. The state noted it wasn’t asking the trial court to reopen the evidentiary phase.

CollegeAmerica agreed that the trial court could decide the issue based on evidence that was presented at trial. But CollegeAmerica argued the trial court should deny the request.

The trial court granted the state’s request to submit supplemental proposed findings of fact and conclusions of law. When the parties submitted their materials on the significant public impact element, they relied on evidence presented at trial.

After the parties provided the additional proposed findings, the Colorado General Assembly amended section 6-1-103 of CCPA stating an action brought by the attorney general doesn’t require proof a deceptive trade practice had a significant public impact.

Due to this, the state filed a motion seeking a determination whether the amendment should apply retroactively to the case. CollegeAmerica opposed the motion and the trial court didn’t immediately rule on it.

About a year later the trial court issued its judgment. It found CollegeAmerica violated CCPA and UCCC; entered detailed injunctive relief on the CCPA and UCCC claims; and ordered CollegeAmerica to pay $3 million in civil penalties. The court denied the state’s request for broad restitution and disgorgement of tuition and fees paid by almost every student who registered at a CollegeAmerica campus since 2006, which would have resulted in liability of more than $232 million.

The court determined the general assembly’s 2019 amendment to 6-1-103 of CCPA was a clarification of law rather than a change and the amended statute applied to the case. The court found the state wasn’t required to prove the significant public element.

The court didn’t find evidence  when analyzing the state’s claim CollegeAmerica fraudulently or unconscionably induced consumers to enter into EduPlan loan agreements under 5-6-112(3)(a) of UCCC, that CollegeAmerica should have believed at the time EduPlan loans were made that there was no reasonable probability of payment in full of the obligation by students.

The court found the state relied heavily on statistical and macroeconomic evidence, such as the fact CollegeAmerica annually wrote off upwards of 40% of debt owed by students as uncollectible, but the state failed to demonstrate this was directly a result of credit terms and the schedule of payments under the loans themselves as required by 5-6-112(3)(a). 

The court found CollegeAmerica seemed to have regarded EduPlan loans as a loss leader, and this wasn’t evidence of unconscionability. The court went on to consider the remaining factors of section 5-6-112(3), finding EduPlan loans weren’t unconscionable for all borrowers in general, but were for certain specific borrowers.

Each party appealed. The appeals court reversed the trial court’s judgment in part and remanded the case for a new bench trial on each of the state’s CCPA claims. CollegeAmerica and the state petitioned the Colorado Supreme Court for review which it granted. 

The state high court concluded, as the appeals court did, that the state’s CCPA civil penalty claims are equitable in nature and CollegeAmerica isn’t entitled to a jury trial on those claims. The Colorado Supreme Court found the appeals court erred in remanding the case for a new trial without first assessing whether CollegeAmerica had a fair opportunity to litigate the issue of significant public impact and, if so, whether the evidence established such an impact.

The Colorado Supreme Court further concluded the appeals court correctly determined CollegeAmerica’s EduPlan loans as a whole weren’t unconscionable, although the state high court disagreed with the appeals court’s conclusion that individualized evidence regarding the probability of repayment was necessary to establish unconscionability. The Colorado Supreme Court affirmed in part and reversed in part the judgment of the appeals court and remanded the case for further proceedings consistent with the opinion. 

Justice Maria Berkenkotter didn’t participate in the appeal.

In re. Arvada Village Gardens LP v. Garate

The Colorado Supreme Court en banc made a rule absolute involving COVID-19, landlords and tenants.

Before landlords can evict tenants, they need to provide notice. Under Colorado law, the required notice period is 10 days. During the pandemic, Congress passed a law requiring a 30-day notice period for eviction from certain rental properties. 

Ana Garate is the tenant of a property located at Arvada Village Apartments where Arvada Village Gardens LP is the landlord. Garate receives a federal Section 8 housing choice voucher, which the landlord takes as payment for rent.

The property is covered by the Coronavirus Aid, Relief and Economic Security Act. On Dec. 6, 2022, the landlord served an eviction notice on Garate that she needed to within 10 days pay overdue rent and fees or surrender the premises. Twenty-three days later, the landlord filed a forcible entry and detainer proceeding in Jefferson County Court.

Garate filed an answer and motion to dismiss, arguing the landlord failed to satisfy the CARES Act’s 30-day notice period and the case needed to be dismissed for a lack of jurisdiction. The county court denied the motion to dismiss, concluding the CARES Act’s notice provision expired and Colorado’s 10-day notice controlled.

Garate filed a Colorado Appellate Rule 21 petition. The Colorado Supreme Court exercised its jurisdiction under the petition

After looking at the plain language of the CARES Act, the Colorado Supreme Court concluded the federal 30-day notice provision is still in effect for covered properties. The high court made the rule to show cause absolute. 

The Colorado Supreme Court noted that a landlord of a property covered by the CARES Act must give 30 days notice before filing for a forcible entry and detainer in Colorado. Since the landlord didn’t do so, the action was dismissed. The court found Congress didn’t include an expiration date on the notice provision of the law and declined to create one. Courts in Washington, Oklahoma and Connecticut have found the same thing, the court added. 

Chief Justice Boatright didn’t participate in the proceeding.

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