Articles Posted in Government & Administrative Law

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This case arose from respondent Public Service Company of Colorado’s (“Xcel’s”) challenge to the City of Boulder’s attempt to create a light and power utility. Xcel argued that the ordinance establishing the utility, Ordinance No. 7969 (the “Utility Ordinance”), violated article XIII, section 178 of Boulder’s City Charter. Xcel thus sought a declaratory judgment deeming the Utility Ordinance “ultra vires, null, void, and of no effect.” Petitioners, the City of Boulder, its mayor, mayor pro tem, and city council members (collectively, “Boulder”), argued Xcel’s complaint was, in reality, a C.R.C.P. 106 challenge to a prior ordinance, Ordinance No. 7917 (the “Metrics Ordinance”), by which Boulder had concluded that it could meet certain metrics regarding the costs, efficiency, and reliability of such a utility. Boulder contended this challenge was untimely and thereby deprived the district court of jurisdiction to hear Xcel’s complaint. The district court agreed with Boulder and dismissed Xcel’s complaint. Xcel appealed, and in a unanimous, published decision, a division of the court of appeals vacated the district court’s judgment. As relevant here, the division, like the district court, presumed that Xcel was principally proceeding under C.R.C.P. 106. The division concluded, however, that neither the Metrics Ordinance nor the Utility Ordinance was final, and therefore, Xcel’s complaint was premature. The division thus vacated the district court’s judgment. Although the Colorado Supreme Court agreed with Boulder that the division erred, contrary to Boulder’s position and the premises on which the courts below proceeded, the Supreme Court agreed with Xcel that its complaint asserted a viable and timely claim seeking a declaration that the Utility Ordinance violated Boulder’s City Charter. Accordingly, the Supreme Court concluded the district court had jurisdiction to hear Xcel’s declaratory judgment claim challenging the Utility Ordinance, and remanded this case to allow that claim to proceed. View "City of Boulder v. Public Service Company of Colorado" on Justia Law

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The Jim Hutton Foundation (“Foundation”) owned surface-water rights in the Republican River Basin. The Foundation believed that permitted groundwater wells that people had begun to install in the underlying groundwater basin - the Northern High Plains Basin (“NHP Basin”) - were not in fact pumping designated groundwater, and were injuring its senior surface-water rights. The Foundation sued, hoping to alter the groundwater basin's boundaries to exclude any improperly permitted designated-groundwater wells. The Foundation filed this action in water court, arguing that a legislative amendment to the statutory process to challenge the designation of a groundwater basis, prohibited any challenge to alter a designated groundwater basin's boundaries to exclude a well that already received a permit. The Foundation claimed the amendment deprived surface-water users of the ability to petition the Commission to redraw the NHP Basin’s boundaries to exclude permitted well users upon a showing that groundwater was improperly designated when the NHP Basin’s designation became final. The water court dismissed this claim for lack of subject matter jurisdiction, concluding the Commission must first determine whether the water at issue is designated groundwater before subject matter jurisdiction will vest in the water court, meaning the Foundation’s constitutional claim could not become ripe until it satisfied the Commission that the water was not designated groundwater. The Foundation appealed. The Colorado Supreme Court affirmed the water court and concluded that, because jurisdiction did not vest in the water court until the Commission first determined the water at issue was not designated groundwater, the water court properly dismissed the claim. View "Jim Hutton Educ. Found. v. Rein" on Justia Law

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The issue this case presented for the Colorado Supreme Court's consideration centered on whether Colorado’s Independent Ethics Commission (“the IEC”) had jurisdiction pursuant to article XXIX of the state constitution to hear a complaint based on allegations that then-Secretary of State Scott Gessler (“the Secretary”) breached the public trust by using money from his statutorily-provided discretionary fund for partisan and personal purposes. The IEC investigated the complaint, held a hearing, and determined that the Secretary’s conduct breached the public trust. The Secretary sought judicial review of the IEC’s ruling, arguing that the IEC lacked jurisdiction over the case. Both the district court and the court of appeals affirmed the IEC’s ruling. The Colorado Supreme Court held that relevant jurisdictional language in article XXIX, section 5 of the state constitution authorized the IEC to hear complaints involving ethical standards of conduct relating to activities that could allow covered individuals, including elected officials, to improperly benefit financially from their public employment. Furthermore, the Court held that section 24-18-103, C.R.S. (2017), was one such ethical standard of conduct which established the holding of public office or employment was a public trust, and that a public official “shall carry out his duties for the benefit of the people of the state.” Because the allegations against the Secretary clearly implicated this standard, the Court concluded the complaint fell within the IEC’s jurisdiction and rejected the Secretary’s jurisdictional and vagueness challenges. Additionally, the Court rejected the Secretary’s procedural due process claim because he failed to demonstrate that he suffered any prejudice as a result of the alleged violation. View "Gessler v. Smith" on Justia Law

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In 2011, the City of Aspen adopted an ordinance which imposed a regulatory scheme designed to meet the city council’s “duty to protect the natural environment and the health of its citizens and visitors.” Under the ordinance, grocery stores within Aspen’s city limits were prohibited from providing disposable plastic bags to customers, though they could still provide paper bags to customers, but each bag is subject to a $0.20 “waste reduction fee,” unless the customer was a participant in a “Colorado Food Assistance Program.” This case presented the question of whether Aspen’s $0.20 paper bag charge was a tax subject to voter approval under the Taxpayer’s Bill of Rights (“TABOR”). The trial court held that this charge was not subject to TABOR because it was not a tax, but a fee. The court of appeals concurred with this holding. The Colorado Supreme Court also agreed, finding the bag charge was not a tax subject to TABOR. View "Colorado Union of Taxpayers Found. v City of Aspen" on Justia Law

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Doreen Heyboer was a passenger on a motorcycle involved in an accident with an automobile in Denver and suffered catastrophic injuries. As a result of her injuries, her conservator sued the City and County of Denver, alleging that the street’s deteriorated condition contributed to the accident. Denver responded by asserting its immunity under the Colorado Governmental Immunity Act (“CGIA”). Heyboer argued Denver waived its immunity because the road was a dangerous condition that physically interfered with the movement of traffic, and thus, her suit fits an express exception found in the CGIA. After review, the Colorado Supreme Court determined her evidence did not establish that the road constituted an unreasonable risk of harm to the health and safety of the public, nor did her evidence establish that the road physically interfered with the movement of traffic. Accordingly, Denver retained its immunity under the CGIA; the Supreme Court reversed the court of appeals which held to the contrary. View "City & Cty. of Denver v. Dennis ex. rel. Heyboer" on Justia Law

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The Alamosa County Department of Human Services interviewed Mother, who admitted that she was addicted to prescription medications, although she denied selling drugs from her home. Mother had a history of prior referrals to the Department, and her older children had previously been temporarily removed from her home due to her drug use. Meanwhile, the father of the children had been incarcerated following a criminal conviction and remained in custody at the time the Department conducted its investigation. Father had a history of methamphetamine use. In light of the foregoing, the Department filed a dependency and neglect petition with regard to E.M., L.M., and E.J.M. (the “Children”). Although both Mother and Father initially denied the allegations contained in the petition, they subsequently entered admissions, and the court adjudicated the Children dependent and neglected. This case called on the Colorado Supreme Court to decide whether the State could seek to terminate a parent’s parental rights under the relinquishment provision of the Colorado Children’s Code (the “Code”), section 19-5-105, C.R.S. (2017), when the child is already subject to a dependency and neglect proceeding under Article 3 of the Code, sections 19-3-100.5 to -805, C.R.S. (2017). The Court concluded that when a dependency and neglect proceeding is pending, the State can terminate parental rights only through the procedures set forth in Article 3 of the Code and cannot use the more limited processes provided in Article 5. View "Colorado in Interest of L.M." on Justia Law

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The Arapahoe County Department of Human Services filed a petition in dependency or neglect concerning minor child R.S., and naming both parents as respondents. The mother requested a bench trial to adjudicate the dependent or neglected status of the child; the father requested a jury trial. The court held a single adjudicatory trial, with the judge serving as fact-finder with respect to the Department’s allegations against the mother, and a jury sitting as fact-finder with respect to the allegations against the father. The judge ultimately concluded that the child was dependent or neglected “in regard to” the mother. In contrast, the jury, as the father’s fact-finder, concluded there was insufficient factual basis to support a finding that the child was dependent or neglected. In light of these divergent findings, the trial court adjudicated the child dependent or neglected and continued to exercise jurisdiction over the child and the mother, but entered an order dismissing the father from the petition. The mother appealed the adjudication of the child as dependent or neglected; the Department appealed the jury’s verdict regarding the father, as well as the trial court’s denial of the Department’s motion for adjudication notwithstanding the verdict. In a unanimous, published opinion, the court of appeals dismissed the Department’s appeal for lack of jurisdiction, reasoning that the dismissal of a single parent from a petition in dependency or neglect based on a jury verdict was not a final appealable order because neither the appellate rule nor the statutory provision governing appeals from proceedings in dependency or neglect expressly permitted an appeal of a “no adjudication finding.” The Colorado Supreme Court concluded that, with limited exceptions, the Colorado Children’s Code authorized appealed in dependency and neglect cases of “any order” that qualified as a “final judgment.” Here, the trial court’s order dismissing the father from the petition was not a “final judgment,” so the court of appeal lacked jurisdiction and properly dismissed the Department’s appeal. The Court therefore affirmed the court of appeals but under different reasoning. View "Colorado in Interest of R.S." on Justia Law

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Front Range Resources, LLC, a private company that owned or managed various water rights, applied for a replacement plan in the Lost Creek Designated Ground Water Basin. Under the plan, Front Range sought to divert water from its existing water rights to recharge the Lost Creek Basin’s alluvial aquifer. It then planned to withdraw the recharged water by increasing the use of its existing wells and by constructing new wells. Defendants (parties that believed their water rights would be impaired by the plan) objected to Front Range’s replacement plan, and the Ground Water Commission ultimately dismissed Front Range’s application with prejudice, allowing Front Range to appeal to the district court. Meanwhile, Front Range and the City of Aurora entered into an option contract for Aurora to purchase some or all of the replacement-plan water upon the replacement plan’s approval. On appeal, the district court rejected Front Range’s use of water rights in the South Platte River in the replacement plan. It further found the replacement plan involved new appropriations and changes of water rights, triggering the anti-speculation doctrine. In granting summary judgment against Front Range, the district court concluded Front Range’s planned use of the replacement-plan water (including its option contract with Aurora) violated the anti-speculation doctrine. Some of the Defendants then pursued attorney fees, arguing Front Range’s claims lacked substantial justification. But the district court denied their motion. After review, the Colorado Supreme Court held the anti-speculation doctrine applied to replacement plans involving new appropriations or changes to designated ground water rights. Because Front Range could not demonstrate that it or Aurora would put the replacement-plan water to beneficial use, the district court did not err in granting Defendants’ motion for summary judgment. Furthermore, the Court concluded the district court did not abuse its discretion in denying Defendants’ motion for attorney fees. View "Front Range Resources, LLC v. Colorado Ground Water Commission" on Justia Law

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Teachers who worked for Denver Public Schools (“DPS”), and Denver Classroom Teachers Association (collectively, “the teachers”), filed this suit, alleging that DPS invoked Senate Bill 10-191, which under certain circumstances allowed a school district to place a nonprobationary teacher on unpaid leave, to remove hundreds of teachers from their positions in violation of both due process of law and the contracts clause of the Colorado Constitution. School District No. 1 and members of the Colorado Board of Education (collectively, “the District”) moved to dismiss the suit, and the trial court granted that motion. A division of the court of appeals reversed, relying on the Colorado Supreme Court’s decisions interpreting predecessor statutes to the relevant (codified as the Teacher Employment, Compensation, and Dismissal Act of 1990 (“TECDA”)) and concluded due process violations occurred under those predecessor statutes. The Supreme Court reversed, holding the TECDA did not create a contractual relationship or vest nonprobationary teachers who were placed on unpaid leave with a property interest in salary and benefits. View "Sch. Dist. No. 1 v. Masters" on Justia Law

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The Tenth Circuit Court of Appeals certified two questions of Colorado law to the Colorado Supreme Court. The questions stemmed from an action brought by teacher Linda Johnson against Denver School District No. 1 (“the District”) and the District’s Board of Education, in which Johnson argued that by placing her on unpaid leave, the District breached her contract and violated her due process rights. The federal district court concluded that because Johnson was placed on unpaid leave, rather than terminated, she was not deprived of a property interest. Johnson appealed that decision to the Tenth Circuit. After analyzing the statutory history and the current statutory language, the Colorado Supreme Court held that the provisions of section 22-63-202(2)(c.5) (CRS 2015) applied to all displaced nonprobationary teachers, not just nonprobationary teachers who were displaced because of a reduction in enrollment or an administrative decision to eliminate certain programs (the reasons stated in subparagraph (VII)). Furthermore, the Court held that nonprobationary teachers who placed on unpaid leave had no vested property interest in salary and benefits, meaning a nonprobationary teacher who is placed on unpaid leave under subparagraph (IV) is not deprived of a state property interest. View "Johnson v. Sch. Dist. No. 1" on Justia Law