Court Opinions- May 28, 2018

Colorado Union of Taxpayers Found. v. City of Aspen

In Aspen, plastic bags are no longer available for use at grocery stores and paper bags come with a $0.20 charge. The petitioners of this case argued that the charge was a tax that goes against the Taxpayer’s Bill of Rights.

The court said that a charge is a tax when its primary purpose is to generate funds for the government. The bag fee is a regulation to work with waste management and to deter use of disposable bags. The court said that since the primary purpose is regulatory and not fundraising, the charge is not a tax. This is in line with what the trial court and the court of appeals ruled.

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TABOR limits state and local governments’ legislative powers so that voters must approve any new tax before it is enacted. The court asserted that the bag fee falls under the government’s jurisdiction of environmental health and safety regulation and as such does not require voter approval. The fee is considered to be an example of how a regulation is enforced.

The City and County of Denver v. Dennis ex. rel. Heyboer

Doreen Heyboer was a passenger on a motorcycle when it got in an accident with another car that gave her extensive injuries. A conservator sued the City and County of Denver on the grounds that the condition of the street contributed to the accident. Heyboer argues that Denver waived its immunity under the Colorado Governmental Immunity Act because the roads were in such disrepair that it physically interfered with the movement of traffic. The CGIA gives the government immunity from liability in all claims of injuries.

The court held that the evidence provided by Heyboer on the condition of the roads is insufficient to say Denver waived its immunity. Her evidence did not show the road had unreasonable risk of harm, or that it interfered with the movement of traffic. Instead it is determined that the driver who cut off the motorcycle Heyboer was on was why the motorcycle lost control and not the condition of the road it was on. The court reversed the judgment of the Court of Appeals that Heyboer established a waiver of immunity. The court remanded the case to the court of appeals for further proceedings.

Jim Hutton Educ. Found. v. Rein

The Jim Hutton Foundation has surface-water rights to the Republican River Basin. It feels that its senior surface-water rights were infringed by wells being constructed to reach the groundwater basin beneath Republican River Basin. The goals of the foundation are to change the groundwater basin’s boundaries to exclude the wells the foundation believes have not been permitted correctly.

However, there has been a recent legislative amendment to challenge a groundwater basin’s designation. Properly permitted wells cannot be excluded from a change in a basin’s boundaries. The foundation argued that this legislation is unconstitutional as it prevents surface-water users to petition the Colorado Groundwater Commission to redraw the groundwater basin’s boundaries. 

The water court that the case was initially introduced to dismissed the claim because the commission had yet to determine whether the water accessed by the wells was groundwater or surface-water. The water court can only hear the case once the commission determines that the wells are using water not designated groundwater. The court affirmed that the water court dismissed the case correctly and that the commission needs to do its job before the case can move forward.

State Farm v. Fisher

Dale Fisher was involved in a car accident that wasn’t his fault with an underinsured motorist that ended up with Fisher needing $60,000 in medical care. However he was covered by many State Farm underinsured motorist insurance policies. Yet State Farm disputed amounts to be paid under other policies like lost wages and refused to pay the medical costs until the disputed amounts were resolved. 

Fisher sued on the grounds that State Farm was unreasonably delaying to pay his medical costs. State Farm argued that it did not have the responsibility to make piecemeal payments. The trial court found and the court of appeals affirmed that State Farm violated a Colorado statute that an insurer cannot unreasonably delay or deny payment of a claim.

The court used the same statute to show that insurers do in fact have a responsibility to pay undisputed portions of a claim (in this case an underinsured motorist claim) even when portions are disputed. The court stated that insurers have a duty not to unreasonably delay or deny payments despite a part or parts of a claim still being disputed. 

The People v. Ehrnstein

The district attorney for the 17th Judicial District tried David Ehrnstein for incest and a jury convicted him. Ehrnstein filed for a new trial as he believed the DA and the victim advocate in his case had instructed the minor involved, who was a minor, to avoid a defense subpoena. 

This case is an interlocutory appeal from a trial court asking for a special prosecutor during a post-trial motion for a new trial. The trial court found that the prosecution would be in a position where the DA would be both prosecutor and witness in the post-trial motion regarding if he had told the victim to avoid a subpoena. 

That situation is covered in the Colorado Rules of Professional Conduct, which compels the appointment of a special prosecutor, and is specific to the confusion of a jury to an attorney being on both sides of the stand. In post-trial motions there is no jury and thus no reason to appoint a special council. 

The court stated that the trial court abused its discretion to appoint a special prosecutor and that it was not needed at the current point in the trial. The court reversed the trial court’s order and remands the case for further proceedings.

Parocha v. Parocha

Megan Parocha fled New Jersey, and her abusive spouse, to Colorado and her family. He persistently contacted her by phone, email and text message. When she said she did not want to go back to New Jersey with him, his communications became more frequent and intense. Megan Parocha pursued a civil protection order. Richard Parocha, her husband, claimed Colorado courts had no jurisdiction, as she was a non-resident.

The court states that this case is the first where precedent can be set for when a victim of domestic abuse can seek refuge in Colorado while fleeing a non-resident. The court uses the “long-arm statute” to help determine their ruling. 

It is held that since the harassments, threats or attempts to coerce are tortious acts that allow personal jurisdiction to be enacted under the long-arm statute. 

The court affirms the ruling of the county court, saying it had statutory and constitutional authority to establish jurisdiction. It was done under the specific purpose of establishing a permanent civil protection order. The district court’s order is reversed, having vacated the permanent civil protection order. 

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