Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
In re: Parental Responsibilities concerning K.M.S., M.D.S., and R.E.S.
This appeal considers grandparent visitation rights for three young children whose biological parents, Brandon Sullivan and Amanda Sullivan, are deceased. After the children’s biological mother and father died, Suzanne Nicolas and August Nicolas — Amanda Sullivan’s parents — adopted them. After the adoption was finalized, Jayne Mecque and Daniel Francis Sullivan — Brandon’s parents — moved for, and were granted, grandparent visitation.
The Nicolases later moved to vacate the visitation order, arguing that the Sullivans lacked standing to seek visitation. The domestic relations court found that the Sullivans did have standing and denied the motion to vacate the visitation order. A division of the Colorado Court of Appeals affirmed.
The Colorado Supreme Court granted certiorari to review whether the division erred in affirming the domestic relations court’s order upholding the Sullivans’ standing to seek grandparent visitation
The state Supreme Court determined that grandparent standing is limited by Section 19-1-103(70)(a) of the Colorado Revised Statutes to one who is presently the parent of a child’s father or mother. Following an adoption, the parents of a child’s former mother or father are no longer “grandparents” under the statute.
It held that after children are adopted, the parents of a deceased father or mother lack standing to seek grandparent visitation. Because the Nicolases were the children’s parents when the Sullivans filed their petition for visitation, the Sullivans were no longer legal grandparents; hence, the Sullivans lacked standing to seek grandparent visitation.
The court reversed the judgment of the Court of Appeals and remanded the case.
Jefferson County, Colorado v. Krista Dozier
After slipping and falling on an unmarked puddle of water in the Jefferson County courthouse, Krista Dozier brought a tort action against Jefferson County. The county moved to dismiss the case, claiming immunity under the Colorado Governmental Immunity Act.
Dozier countered that the spill was a dangerous condition of a public building, an exception to CGIA immunity. The district court found that the county’s response to the spill was reasonable, and so the dangerous-condition exception didn’t apply. The court then granted the county’s Rule 12(b)(1) motion to dismiss Dozier’s claims for lack of subject matter jurisdiction.
A division of the Colorado Court of Appeals reversed, holding that the reasonableness of the county’s response wasn’t relevant to the court’s jurisdiction, and the county had waived CGIA immunity under the dangerous-condition exception.
The Colorado Court of Appeals reversed the judgment of the appeals court.
It held that when disputed jurisdictional facts are inextricably intertwined with the merits, a plaintiff must demonstrate a likelihood of the existence of the facts necessary to establish a waiver of CGIA immunity. The state Supreme Court also held that a plaintiff must show that a public entity’s negligent act or omission proximately caused the condition in question for the dangerous-condition exception to apply.
Because the district court found that the county’s response to the spill was reasonable, it correctly concluded that Dozier had failed to establish that the spill was a “dangerous condition” and that it lacked jurisdiction over her claims.
Ashley Hushen et al. v. Benjamin Gonzales
Ashley Hushen and Alexandra Weary were among a number of students who came forward to their high school administrators with allegations that one of their classmates, Benjamin Gonzales, had sexually harassed them. During the school’s investigation of those allegations pursuant to Title IX of the Education Amendments of 1972, Hushen, Weary and their mothers provided statements.
The first phase of the Title IX investigation ended with Gonzales being suspended from school for three days. It also led the Jefferson County District Attorney to charge him as a juvenile for unlawful sexual contact with Hushen, Weary and two others. Gonzales was acquitted of all criminal conduct. Then, the school reopened the Title IX investigation. At the end of that phase of the investigation, the school concluded that Gonzales hadn’t engaged in any conduct that violated its school policies. The record shows that all three of the students involved in this case, as well as many others at the school, felt traumatized by both the school’s process and the criminal proceeding. By the time all of the proceedings had closed, the students involved had graduated from high school.
About a year later, Gonzales brought a lawsuit in the district court against Hushen, Weary and their mothers, alleging defamation and intentional infliction of emotional distress based on some of the statements they had made during the Title IX investigations. Hushen, Weary and their mothers responded by filing a “special motion to dismiss” under Colorado’s anti-SLAPP statute, arguing that the statements they made in the school’s investigations were absolutely privileged from use in a tort action because they were made during a quasi-judicial proceeding.
Both the trial court and a division of the Colorado Court of Appeals concluded that the Title IX proceedings were not quasi-judicial. Both courts acknowledged that the proceedings addressed the interests of specific individuals by applying previously established law or policy to present or past facts. But they determined that the proceedings were nonetheless not quasi-judicial because they suffered from significant procedural shortcomings.
One consequence of these rulings is that the accused can move forward with a civil tort suit against his accusers because they complained about perceived sexual harassment as part of a Title IX investigation designed and conducted by their high school. Another related consequence may be that other students will be deterred from coming forward in the face of sexual harassment at school.
Recognizing the significance of these consequences, the Colorado Supreme Court clarified that whether a proceeding is quasi-judicial is a separate inquiry from whether that proceeding offers sufficient due process. The first question is important for determining whether participants in the proceeding are entitled to assert privilege, protecting them from tort liability for the statements they make during that proceeding.
The second question — the adequacy of the process provided — is an essential one. The court noted it’s also a constitutional question. The right to due process is fundamental, and participants in a public proceeding that determines their rights or obligations are entitled to challenge that proceeding for its lack of due process. But the court explained that is a separate question from whether the proceeding itself is, under Colorado law, a quasi-judicial proceeding.
Determining whether a proceeding is quasi-judicial is a relatively easy threshold issue. However, the issue of whether that proceeding met the requirements of due process — either as it was designed to be run or as it actually was run — is a difficult question that often forms the entire basis of a lawsuit.
Combining those two questions unnecessarily complicates a court’s quasi-judicial analysis and could result in disparate outcomes in similar proceedings — e.g., a Title IX investigation, an attorney discipline matter or an employee disciplinary process — from one case to another.
The state Supreme Court took the opportunity to clarify that a proceeding is quasi-judicial if it involves a determination of the interests, rights or duties of specific individuals and the application of current law or policy to past or present facts.
The court said it explained in Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village that the existence of a statute mandating some basic due process is a clear signal that the governmental decision is to be regarded as quasi-judicial. But the court noted it has never said that due process protections are required to identify a proceeding as quasi-judicial.
Instead, whether a proceeding meets the requirements of due process is a question to be answered on its own. With these principles in mind, the court reversed the decision of the appeals court and remanded the case.
The court concluded by writing that absolute privilege allows individuals to participate in fact-finding processes — like Title IX investigations, attorney regulation proceedings or employee discipline proceedings — without fear that their participation will serve as the basis for lawsuits against them.
In re: People v. Adetayo Sotade
In this original proceeding, the Colorado Supreme Court considered whether a show-cause hearing under Section 24-72-305(7) of the Colorado Criminal Justice Records Act can be held in a district court outside of the district where the requested records are located. The question presents itself here because the Colorado Bureau of Investigations is located in Jefferson County, where it maintains its records, and some of those records are being sought in a criminal case in Douglas County District Court.
Subsection 305(7) provides that a party who is denied access to inspect a record covered by the CCJRA may submit an application to the district court of the district where the record is found for an order directing the custodian of such record to show cause why the custodian shouldn’t permit the inspection of the record.
The parties’ dispute here turns on two questions: whether the word “may,” as used in the subsection, is mandatory or permissive; and whether the Douglas County District Court has ancillary jurisdiction over a CCJRA application, independent of the statutory provision.
The state Supreme Court concluded that the plain language of the statute requires that a CCJRA show-cause hearing take place in the district court of the district where the records are found, and that ancillary jurisdiction is unavailable because the statutory provision squarely applies.
The court made the order to show cause absolute.