“Reading the two sets of briefs, it’s like two ships passing in the night” – Coats, J. (oral argument). This case raised one of two questions about Amendment 23’s (Am 23) school funding mandate: what does “base” mean or, was it rendered meaningless? A “negative factor” was created by the legislature for the purpose of reducing the State’s school funding obligations. Am 23 mandates annual increases to “statewide base per pupil funding.” The Negative Factor reduces nearly all other parts of the funding formula without reducing “base” funding. The majority held that so long as there is no reduction in “base funding,” the “algebraic significance [of the Negative Factor] within the funding formula is immaterial [to Am 23’s mandate].” The dissent noted that the Negative Factor eliminates the school funding increases intended by Am 23, creating fact questions that preclude dismissal.
Category Archives: Government
Lindi Dwyer and Paul Dwyer, as individuals and parents of Jayda Dwyer, Joslyn Dwyer, Janesha Dwyer, and Jentri Dwyer, et. al. v. The State of Colorado; Robert Hammond as Commissioner of Education; and John Hickenlooper as Governor of the State of Colorado, 2015CO58 (Sept. 21, 2015)
“Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions.” Ulysses Grant. Petitioners challenged a scholarship program that required enrollment in a “charter school” and admission to a qualified private school. Taxpayer money funded the scholarship, which was paid to the parents who then paid the private school. Nearly 93% of recipients enrolled in religious schools. The Court held the program unconstitutional under Colorado’s expansive prohibition on public funding of “sectarian” schools because the program “supports and sustains” such schools. The element of private choice was insufficient absent safeguards against funding religious schools. As such, invalidating the program does not violate the 1st Amendment. Petitioners lacked taxpayer standing to challenge the program under a statute.
Sara L. Burnett v. Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation, 2015CO19 (March 23, 2015)
“A fool sees not the same tree that a wise man sees.” – William Blake. A plurality of the Court held that a tree located in the Cherry Creek State Park that existed before the State built camping facilities, but which is located next to, and whose branches hang over a campsite, is a “natural condition of unimproved property.” Relying extensively on a legislative report written about the CGIA, it held that if a tree is native pre-improvement, as in this case, the State has no duty to make it safe and prevent a branch from falling. Thus, the State is immune, without regard to the location of the tree. That approach, the Court held, balances the cost of maintenance and access to public land. Rosales v. Denver, which analyzed whether trees were public facilities, was overruled. The concurrence would focus on the text: the State is immune if a branch originating from “unimproved property” falls.
Gary Justice, Kathleen Hopkins, Eugene Halaas, Jr., and Robert Laird, Jr. v. The State of Colorado, Governor Hickenlooper, Colorado PERA, Carole Wright, and Maryann Motza, 2014CO75 (Oct. 20, 2014)
A contract is a promise the law will enforce. The Contract Clauses of Colorado’s and the US’s Constitutions protect existing contracts from laws that would later impair their performance. Public employees have received retirement benefits from PERA since 1931. Cost of living adjustments (COLA) began in 1969 and have evolved ever since. In 2000, the statutory COLA rate was 3.5%. In 2010, the legislature changed it to 2%. Employees who retired between 2001 and 2010 sued the State for violating the Contracts Clause, claiming a violation of their contractual right to the 3.5% COLA at the time of their retirement. The Court ruled there was no contract right guaranteeing a particular COLA formula because 1) it has changed repeatedly over time and 2) there is no express intent that the 2000 legislature intended to bind the 2010 legislature regarding the COLA formula for pre-2010 retirees.
In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)
Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.
Town of Dillon v. Yacht Club Condominiums Home Owners Association, Steve Delaney, and Robert R. Duncan, 2014CO37 (May 27, 2014)
“[A] municipality certainly need not wait for more accidents to happen before addressing a perceived danger.” Opinion. Condominium owners in Dillon were parking on a road that is a public right-of-way. Dillon passed ordinances to improve a bike lane, drainage and traffic safety and gave the police chief the power to designate no-parking zones on any of Dillon’s right-of-way streets. Citing safety concerns, Chief did so on the road where the owners were parking . The owners successfully sued, claiming the ordinances were an unconstitutional abuse of Dillon’s police power by reducing property values despite less burdensome alternatives. The Court reversed, holding that the proper test for constitutional due process challenges to ordinances is whether an ordinance has a reasonable relation to public health, safety, morals, or welfare. The burden of compliance is not a factor.
Erin A. Young, individually and on behalf of and as next friend of C.Y.; and C.Y., a minor, through his parent Erin A. Young, v. Brighton School District 27J, 2014CO 32 (May 19, 2014)
“When sidewalks are not available, pedestrians are forced to share the street with motorists, access to public transportation is restricted, and children might not have safe play areas.” – US DOT. Here, a child slipped on a puddle in a walkway running between a public school and its playground. Examining the CGIA, the Court rejected the argument that the “icy walkway waiver” was mutually exclusive of the “recreation waiver.” Rather, each waiver provides a potential avenue for waiver of tort liability, any one of which might suffice. Next it held that, unlike a playground or a parking lot, the walkway is not a “public facility” because: 1) it lacked an intrinsic recreational connection with the playground; 2) it did not broadly promote the purpose of the playground; and 3) excluding walkways like this one was consistent with the legislature’s intent. The school was immune from suit.
“My dream is to have the park system privatized, and run entirely for profit by corporations. Like Chuck E. Cheese.” – Ron Swanson, Parks and Recreation. People can sue governments for injuries occurring at a 1) “public” 2) “facility” 3) “located in” a 4) “recreation area.” The Court defined those 4 terms as follows: 1) accessible and benefiting the public; 2) includes parking lots; 3) promotes recreation; and 4) an area whose primary purpose is recreation. Here, a parking lot next to a public golf course met the criteria. The parking lot was accessible to the public, allowed golfers to conveniently access the course, and golfing was the primary recreational purpose promoted by the lot. The city was not immune from plaintiff’s suit arising from her injury in the parking lot. Two justices would arrive at the same conclusion, but by allowing the city’s designation to drive the analysis.
St. Vrain Valley School District RE-1J and Cathy O’Donnell v. A.R.L. a minor; Randy Loveland; and Mary Nicole Loveland, 2014CO33 (May 19, 2014)
A playground through a lawyers eye: “Although the individual pieces of equipment each promote specific play activities (e.g., swinging or playing in the sand), they nevertheless collectively promote the common purpose of play and together make a playground a ‘facility’ by virtue of the strong relationship between the individual components.” – Opinion. In this case, applying and expanding on the analysis set forth in Daniel v. Colorado Springs, the Court concluded that a public school playground and its collection of equipment is a “public facility” “located in” a “recreation area.” The case focused on what a “public facility” is: 1) relatively permanent or affixed to land; 2) man-made; 3) accessible to the public; and 4) maintained by a public entity for a common public purpose. The zip line that injured the plaintiff was merely a “dangerous condition,” not itself a “facility.”