The Colorado Supreme Court will hear arguments this week in more than a half-dozen cases, including Fourth Amendment challenges to the use of extended video surveillance by police, a pair of hospital lien cases and a solid waste disposal dispute that has attracted the attention of several environmental groups.
The court will also hold public hearings this week on rules regarding continuing legal education and rules on the admission to the practice of law in Colorado.
A PAIR OF POLE CAMERA CASES
The court will hear arguments on Tuesday about whether surveillance through a pole-mounted video camera constitutes a warrantless search in violation of the Fourth Amendment.
The cases before the court stem from a 2015 drug investigation in Colorado Springs. A tip from an informant led police to believe Rafael Tafoya’s home was a possible drug “stash house.” Without applying for or obtaining a warrant, police installed a camera on a utility pole across the street from Tafoya’s house. The camera, which had zoom and panning capabilities, recorded video continuously for more than three months, and detectives watched live and recorded footage from Tafoya’s property.
On a few occasions, the video showed another man, Gabriel Sanchez, arriving at the home and the two men carrying white plastic bags into the garage. Police later obtained a search warrant for Tafoya’s property and found two garbage bags containing methamphetamine and cocaine.
In separate jury trials, Tafoya and Sanchez moved to suppress the video evidence but were denied and found guilty of drug-related crimes. The Colorado Court of Appeals reversed their convictions, finding the months-long video surveillance violated their Fourth Amendment rights.
The Colorado Supreme Court will hear arguments in the Tafoya and Sanchez cases simultaneously. The state argues that Tafoya and Sanchez didn’t have a reasonable expectation of privacy while in Tafoya’s fenced-in backyard, which was exposed to public view through a hole in the fence and from the staircases of neighboring apartments. The state also argues the “majority of federal and state courts to consider pole cameras have concluded their use did not violate a defendant’s constitutional rights.”
Tafoya and Sanchez argue the duration of the surveillance made the search unreasonable. While a neighbor or passerby might get a brief glimpse of Tafoya’s property, they say, it is unlikely a neighbor would stand on a staircase or peer through a fence for more than three months.
Tafoya also argues developments in technology such as drones, thermal imaging and satellite photography have made it difficult to know what steps a person must take to demonstrate a reasonable expectation of privacy.
“Does an individual’s expectation of privacy which society is prepared to recognize as reasonable require the individual to create an enclosure consisting of an impermeable barrier in three dimensions?” states Tafoya’s answer brief. “If so, then the Fourth Amendment right to privacy from Government intrusion is chimerical at best. The resources available to the State will almost always overcome any efforts by the individual to protect the individual’s privacy.”
HOSPITAL LIEN CASES
Also on Tuesday, the Colorado Supreme Court will hear arguments in a pair of cases involving hospital liens against car crash victims. The question before the court is whether the state’s hospital lien statute requires a hospital to bill Medicaid or Medicare for services before creating a lien against a patient who has other coverage but has Medicaid or Medicare as their predominant source of health coverage.
The cases involve two women, Peggy Harvey and Eileen Manzanares, who were injured in car accidents and sought treatment in hospitals operated by Centura Health. The hospitals first billed the car insurance policies of the women and at-fault drivers and then filed liens against Harvey and Manzanares without submitting charges to Medicaid and Medicare.
In 2015, the state legislature amended Colorado’s hospital lien statute to require a hospital to first bill an accident victim’s “primary medical payer of benefits” and the liability insurer “to the extent permitted by state and federal law” before filing a lien.
Harvey and Manzanares argue the hospitals violated the hospital lien statute when they failed to submit charges to Medicare, which they say is their “primary medical payer of benefits.”
Centura argues it wasn’t required to bill Medicare first because Medicare is not a “primary payer” under federal law, which preempts the state statute. According to the Medicare Secondary Payer provisions, Medicare is a “secondary payer” when another insurer, such as automobile or liability insurance, is responsible for primary coverage. Centura also argues that it was not required to bill Medicaid, which is the “payer of last resort” under state law.
In January 2020, a division of the Court of Appeals ruled in favor of Centura in the Harvey case. But a different panel of the Court of Appeals reached the opposite conclusion two months later in another case, Garcia v. Centura, in which Centura made similar arguments about Medicare. The Manzanares case was transferred to the Supreme Court before the Court of Appeals ruled on it. The district court ruled in favor of Centura in that case.
LANDFILL DISPUTE
On Wednesday, the Supreme Court will hear arguments in a solid waste disposal dispute that raises the question of whether, under the Solid Wastes Disposal Site and Facilities Act, an enforcement action brought against a public entity is a tort and thus barred by the Colorado Governmental Immunity Act. The justices will also consider whether a county falls within the definition of “person” under the SWA.
La Plata County owns Bayfield Landfill, where groundwater contamination was discovered in 2004. The county worked with the Colorado Department of Public Health and Environment on monitoring and remediation until 2016, when the CDPHE issued a compliance order pursuant to the SWA.
The county filed a motion with the Office of Administrative Courts to dismiss the compliance order because the CGIA grants La Plata immunity from the order and because the county is not a “person” subject to the SWA. The OAC denied the motion.
On appeal, the La Plata County District Court reversed, finding the CGIA bars the compliance order. The district court did not reach the merits of the person issue. The Court of Appeals in turn reversed the district court’s ruling on immunity and ruled on the merits of the person issue, finding a county is within the SWA’s definition of “person.”
The SWA regulates solid waste facilities and the “persons” who own and operate them. La Plata argues that only a “person” can be subject to an SWA order, and the General Assembly omitted both state and county from the definition of “person.” La Plata argues the omission reflects the legislature’s policy choice that one regulator — the state — should not be allowed to issue an order against another regulator — the county.
CDPHE argues a county is a “person” under the SWA because it is an “association of persons,” a phrase the legislature included to “maintain jurisdiction over any organization of individuals, regardless of whether they act in a private or public capacity.” According to the CDHPE, La Plata’s “loophole” for counties would create absurd results because counties operate most landfills in Colorado and the legislature intended the SWA to provide a comprehensive statewide solid waste management program.
The CGIA states that a public entity is immune from liability in all claims for injury that lie in tort or could lie in tort. Under the SWA, La Plata argues, a landfill whose operations violate the SWA “shall be deemed a public nuisance,” and “nuisance conditions” under the SWA’s regulations include “water pollution.” Public nuisance is a tort, La Plata argues, and public nuisance claims against the county are barred by the CGIA.
However, the CDPHE argues an SWA enforcement action against a public entity is not barred by the CGIA as the compliance order does not allege injury to the CDPHE, nor does it bring a claim that lies or could lie in tort. Rather, SWA enforcement is an exercise of the CDPHE’s police powers.
“By analogy, the [SWA] Protection Standards are like a speed limit and the Department is like a police officer,” the CDPHE states in its answer brief. “Neither enforcing entity needs to allege personal injury to enforce the numeric limitation. Because there is no tort-like (or other) injury suffered by the Department which it would or could claim was caused by La Plata, the CGIA is inapplicable.”