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Cases of Note

Courts presume that the General Assembly is aware of court decisions that construe state statutes or the constitution. The OLLS will update this web page quarterly to notify the General Assembly of such court decisions. Cases that may be of particular interest because they meet certain criteria have been summarized and are listed below in chronological order. Summaries for cases older than a year are available in an archive.



People v. Taylor, Colorado Court of Appeals No. 18CA1410 (November 4, 2021)

Holding: Section 18-1-406 (7), C.R.S., permitting a court to allow the remaining 11 jurors to return the jury's verdict in a felony case if the court excuses a juror for just cause after the jury has retired to consider its verdict, is unconstitutional.

Case Summary: The defendant was charged with felony possession of a controlled substance. During its deliberations following the trial, the jury informed the court that it had an 11-1 vote to convict the defendant, but would not be able to reach a unanimous guilty verdict because one juror who believed that the defendant was guilty would not vote to convict due to that juror's disagreement with Colorado's drug laws. Subsection 18-1-406 (7) permits a court to allow the remaining 11 jurors to return the jury's verdict in a felony case if the court excuses a juror for just cause after the jury starts deliberations. Relying on that section, the trial court dismissed the dissenting juror for "just cause" because (1) the juror had a pre-existing belief with respect to his disagreement with Colorado's drug laws and did not express that disagreement during the jury selection process and (2) after taking an oath indicating that he would follow the law and the court's instructions, the juror chose not to do so. After the juror was dismissed, the remaining 11 jurors returned a verdict finding the defendant guilty.

In 2005,  the Colorado Supreme Court, in People v. Rodriguez, 112 P.3d 693 (Colo. 2005), interpreted Article II, Sec. 23 of the Colorado Constitution as guaranteeing a right to a 12 person jury in felony cases. In the present case, the Court of Appeals court found that the right to a 12 person jury is effectuated only when 12 jurors complete the trial and deliberate to a conclusion in the case. Thus, the court held that section 18-1-406 (7), C.R.S., is unconstitutional because it conflicts with a defendant's state constitutional right to have a felony case decided by a jury of 12. (For more information, contact Conrad Imel.)



In re Estate of Gallegos, Colorado Court of Appeals No. 20CA0721 (August 26, 2021)

Holding: For the purpose of intestate succession involving an adopted child and the child's genetic parent, section 15-11-119 (3) prevails over the conflicting provisions in section 19-3-608 (1) because section 15-11-119 (3) is more specific and more recent.

Case Summary: Decedent father had two biological daughters, one of whom was adopted by her maternal grandparents in 1991 (younger daughter) and another who had no relationship with her father (older daughter). Decedent died in 2016 without a spouse or a will, so under Colorado law his children are entitled to inherent his estate in equal shares. Older daughter and a family partnership organization challenged younger daughter's heirship because younger daughter had been adopted.

Section 19-3-608 (1), enacted in 1987, states that a "child's status as an heir at law [. . .] shall cease only upon a final decree of adoption." Under section 15-11-119 (3), which became effective in 2010, for the purpose of inheritance from a genetic parent, "[a] parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, [. . .]".

The court recognized that the right of adopted children to inherit is determined by the inheritance laws in effect when the decedent died. Because both sections 19-3-608 (1) and 15-11-119 (3) were in effect in 2016 when her father died, both applied to younger daughter. The court found that the two sections are in conflict because section 19-3-608 (1) states that younger daughter's heirship was terminated upon the final adoption decree in 1991, but section 15-11-119 (3) says that, as a child who was adopted by a relative of a genetic parent, younger daughter has a parent-child relationship with her father for the purpose of inheritance.

The court held that section 15-11-119 (3) prevails over the conflicting provisions in section 19-3-608 (1) because a specific statute controls over a general statute and a more recent enactment prevails over an older one. First, if a conflict between a special provision and a general provision is irreconcilable, the special provision prevails as an exception to the general provision. The court interpreted section 15-11-119 (3)'s provisions involving only adoptions by certain relatives as carving out a limited exception to the general rule outlined in section 19-3-608 (1). Second, a more recent statute prevails over an older one because the courts presume the legislature is familiar with previous enactments and intends to alter them when passing more recent legislation. Here, because it was enacted later, the court found that the legislature intended the exception in section 15-11-119 (3) to alter the more general rule in section 19-3-608 (1). (For more information, contact Conrad Imel.)



People in Interest of T.B., Colorado Supreme Court No. 19SC690 (June 28, 2021)

Holding: The mandatory lifetime sex offender registration requirement for twice-adjudicated juveniles, pursuant to Colorado Sex Offender Registration Act, sections 16-22-101 to 16-22-115, constitutes cruel and unusual punishment in violation of the eighth amendment if there is no opportunity for individual assessment or the ability to deregister upon demonstrating rehabilitation.

Case Summary: T.B. committed two sexual offenses as a minor, first in 2001 at the age of eleven and second in 2005 at the age of fifteen. Because he was a twice-adjudicated delinquent, he was required to register as a sex offender for the remainder of his life pursuant to the Colorado Sex Offender Registration Act (CSORA). Upon completion of his probation, which included treatment focused on family interactions and interventions, he petitioned to the juvenile court to discontinue sex offender registration in both cases pursuant to section 16-22-113. Due to T.B.'s multiple sex offender adjudications, the court denied T.B.'s petition to discontinue registration. In 2015, T.B. filed a second petition with the juvenile court to discontinue registration arguing that mandatory lifetime sex offender registration for offenses committed as a juvenile violated due process and cruel and unusual punishment. The juvenile court denied T.B.'s petition. The court of appeals, in a split decision, reversed and held that a juvenile mandatory lifetime registration requirement constitutes punishment, and remanded the case to the juvenile court for further proceedings. The People and T.B. each petitioned the Colorado Supreme Court for certiorari review, and the Court granted certiorari to both parties.

There were two issues before the Colorado Supreme Court. The first issue was whether lifetime sex offense registration for twice-adjudicated juveniles constitutes punishment under the eighth amendment. The second issue was whether mandatory lifetime punishment for twice-adjudicated juveniles is facially cruel and unusual punishment under the eighth amendment. 

To determine whether CSORA is punitive, the Court applied the two-part inquiry articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963): First, did the legislature intend for the statute to be punitive? And second, if the court intended the statute to be nonpunitive, is the statute punitive in effect as to override the legislature's intent? Although the intent of CSORA was to ensure community protection and aid law enforcement, and not intended to be punitive, the Court noted that the General Assembly was aware that the mandatory registration, as applied to certain juvenile offenders, may be punitive in effect. Because the Court could not conclude that the General Assembly intended CSORA to be punitive, it turned to the second prong of the Mendoza-Martinez inquiry. The Court considered a variety of factors to determine whether the CSORA is punitive in effect. The Court held that the mandatory lifetime sex offender registration for juveniles is excessive and the punitive effects outweigh the General Assembly's nonpunitive intent. 

The Court then determined whether such punishment was cruel and unusual and disproportionately punished certain juveniles. The Court analyzed the "objective indicia of society's standards" as provided in legislation and state practice to determine if there is a national consensus against the sentencing practice, as well as applying the Court's own independent judgment. The Court held that CSORA violates the eighth amendment's prohibition on cruel and unusual punishment by requiring mandatory lifetime sex offender registration for twice-adjudicated juveniles without the ability for individual assessment or to deregister upon demonstration of rehabilitation.

The General Assembly passed and Governor signed House Bill 21-1064 which eliminated mandatory lifetime sex offender registration for twice-adjudicated juveniles. The Colorado Supreme Court elected to release the opinion to ensure T.B. receives a new hearing on his petition. (For more information, contact Alana Rosen.)



Ragan v. Ragan, Colorado Court of Appeals No. 20CA0038 (May 27, 2021)

Holding: The Employee Retirement Income Security Act of 1974 (ERISA) precludes post-distribution claims brought pursuant to section 15-11-804 (8)(b), C.R.S., to recover insurance proceeds that were distributed to a former spouse who was the named beneficiary in the insurance policy.

Case Summary: At the time of the decedent's death, his ex-wife remained the named beneficiary of his employer-sponsored life and accidental death insurance policies. The policies are governed by ERISA. After the insurance proceeds were distributed to the ex-wife, the decedent's estate (estate) sued her under state law to recover those proceeds.

Section 15-11-804, C.R.S., is Colorado's divorce revocation statute. Section 15-11-804 (2)(a)(i) provides that any beneficiary designation of a then-spouse is automatically revoked upon divorce. Section 15-11-804 (8)(b) states that if any part of section 15-11-804 is preempted by federal law, a former spouse who received a payment that he or she is not entitled to under the statute is obligated to return that payment or he or she is personally liable for the amount of the payment to the person who would have been entitled to it were the statute or part of the statute not preempted.

Both the Colorado Court of Appeals, in an earlier case, and the United States Supreme court have held that an ERISA plan administrator must distribute benefits to the beneficiary named in the plan. ERISA prohibits benefits provided under a plan from being assigned or alienated. ERISA further contains an express preemption provision, which states that ERISA supersedes "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA.

The estate acknowledged that ERISA preempts the state law providing for automatic revocation of an ex-spouse as a beneficiary, so the plan benefits must be distributed to the decedent's ex-wife as the named beneficiary. But the estate claimed that, under section 15-11-804 (8)(b), C.R.S., it could recover money after it was distributed. The court disagreed, finding that ERISA preempts a claim to recover proceeds after distribution under section 15-11-804 (8)(b).

First, there is no case law supporting the notion that ERISA allows a state law-based post-distribution claim to recover ERISA benefits. Second, in a similar case, the Washington Court of Appeals held that ERISA preempts Washington’s divorce revocation statute allowing for recovery of ERISA funds that had been distributed to the designated beneficiary. The court of appeals agreed with the reasoning of the Washington court that section 15-11-804 (8)(b), C.R.S., cannot revive the preempted automatic revocation requirement simply by doing an end-run around ERISA. Finally, the court of appeals found a U.S. Supreme Court case persuasive in which the Supreme Court concluded that the Federal Employees’ Group Life Insurance Act of 1954 preempted a provision of Virginia’s divorce revocation statute similar to Colorado’s. For these reasons, the court held that ERISA precludes post-distribution claims to recover the insurance proceeds from a former spouse pursuant to section 15-11-804 (8)(b). (For more information, contact Conrad Imel.)



In re Interrogatory on House Bill 21-1164, Colorado Supreme Court No. 21SA97 (May 24, 2021)

Holding: The general assembly may require school districts to gradually eliminate temporary tax credits, as provided in House Bill 21-1164, to reset the school districts' total program mill levies to the levels that would have been in effect but for the unauthorized reductions to total program mill levies in school districts that had obtained voter approval to retain all excess property under the Taxpayer's Bill of Rights ("TABOR"), article X, §20 of the Colorado Constitution.

Case Summary: Colorado funds public school districts using a combination of state and local revenue. In 1992, Colorado voters adopted the Taxpayers' Bill of Rights ("TABOR"), Colo. Const. art. X, §20. TABOR limits the ability of school districts to impose new taxes or increase tax rates absent voter approval. Further, under TABOR, the annual increase in property tax revenue is limited to inflation in the prior calendar year plus enrollment growth ("TABOR revenue limit"). TABOR requires school districts to refund any excess revenue to voters unless the district's voters waive the TABOR revenue limit. Beginning in 1995, voters in many school districts voted to waive the TABOR revenue limit. By 2006, 174 of Colorado's 178 school districts had waived the TABOR revenue limit, allowing districts to retain and spend excess revenue.

Despite the district votes to waive the TABOR revenue limit, the Colorado department of education (CDE) continued to advise districts to lower their mill levies to stay within the TABOR revenue limit. Therefore, in school districts in which property tax revenue grew faster than the TABOR revenue limit, contrary to the voter-approved waivers, the districts were required to reduce their property tax mill levies to avoid a reduction in the state's share of total program funding. In 2007, the general assembly passed Senate Bill 07-199, which clarified that school districts were required to reduce the mill levy to the number of mills allowed under the TABOR revenue limit only if the district's voters had not waived the TABOR revenue limit. The bill also set a cap of 27 mills on the total program mill levy. Despite Senate Bill 07-199, the impact of the incorrect mill levy reductions persisted because each reduction had created a new, lower limit on the district's mill levy, and the statute did not allow school districts to increase their mill levies.

In 2020, the general assembly adopted House Bill 20-1418 to correct the unauthorized mill levy reductions that occurred between 1998 and 2007, resetting affected districts' mill levies to the lesser of 27 mills, the number of mills the district would have been authorized to levy without the incorrect reductions, or the number of mills required to fully fund the district's total program. The bill also required districts to grant a temporary property tax credit for the number of mills by which the mill levy increased above the number of mills levied by the district in the 2019 property tax year. In 2021, the general assembly passed House Bill 21-1164, which directs the CDE to adopt a schedule to implement the total program mill levy corrections by requiring school districts to reduce the temporary tax credits by no more than one mill per year beginning in the 2021 property tax year.

The Supreme Court accepted jurisdiction to consider whether, having already mandated that school districts reset their total program mill levies, the general assembly can gradually eliminate the temporary property tax credits per House Bill 21-1164 without requiring districts to obtain voter approval.

The Supreme Court confirmed that reducing the tax credit – and increasing the mill levy – does not require additional voter approval under TABOR. The Court held that, "in voting to waive TABOR's revenue limits, school district voters understood that their votes were predicated on the continuation of the mill levy rates then in effect." Accordingly, the Court reasoned, "the voters who authorized those waivers necessarily approved the mill levies in effect at the time they voted, which mill levies resulted in the very excess revenues for which the waivers were required."  The Court concluded, "House Bill 21-1164 simply effectuates what voters have already approved and does not permit mill levies above that level." Therefore, no second vote is required. Further, phasing out the "temporary" tax credits granted in House Bill 20-1418 is not a "tax policy change" requiring a TABOR vote because the tax credits were never intended to be permanent, so phasing them out is not a change in tax policy. (For more information, contact Brita Darling.)



People v. Cox, Colorado Court of Appeals No. 19CA2085 (May 13, 2021)

Holding: The general assembly has no authority to modify the affirmative defense in Article XVIII, Sec. 14 (2)(a) of the Colorado constitution.

Case Summary: A jury acquitted the defendant of marijuana cultivation, section 18-18-406 (3)(a)(I), C.R.S., and the district attorney appealed arguing that trial court erred in not supplementing the elements of the constitutional affirmative defense for medical marijuana with additional elements added by statute. The district attorney argued that the jury instructions for the affirmative defense should include the provisions in section 18-18-406 (3)(b) and (3.5), C.R.S., that require medical marijuana cultivation to occur in an enclosed and locked space and requires a primary care-giver cultivating medical marijuana to comply with section 25-1.5-106, C.R.S. The trial court rejected the district attorney's request to add those elements to the affirmative defense instructions.

The court of appeals affirmed the trial court's decision. The court of appeals found that the general assembly cannot modify the affirmative defense found in  Article XVIII, Sec. 14 (2)(a) of the Colorado constitution.  The statutory provisions make the affirmative defense harder to prove. Therefore, inclusion of those provisions would dilute the affirmative defense, and the general assembly has no authority to dilute constitutional rights. A statute that purports to add substantive elements to a defense defined in the constitution cannot trump the constitution. (For more information, contact Michael Dohr.)



People v. Garcia, Colorado Court of Appeals No. 17CA1911 (May 13, 2021)

Holding: Section 18-1-303, C.R.S., does not prevent a Colorado prosecution regardless of prior prosecution by a foreign country.

Case Summary: Defendant was convicted of first degree murder. The defendant and his wife separated, and his wife started a relationship with another man. The defendant threatened to kill the other man. He came to his wife's house with a shotgun when the man was present, and a fight started. The defendant stabbed the man in the back, and the man ran into the bedroom and locked the door. The defendant fired his shotgun through the locked door killing the man. The defendant then fled to Mexico. The district attorney's office attempted to have the defendant extradited to Colorado from Mexico without success. Then, the district attorney compiled a casebook and sent it to Mexico so the defendant could be prosecuted under Mexico's foreign prosecution law. The defendant was acquited of the murder in Mexico. Years later the defendant returned to Colorado, was arrested upon his arrival, and was subsequently tried and convicted of the man's murder.

Section 18-1-303, C.R.S., bars a Colorado prosecution when there has been a prosecution that resulted in a conviction or acquittal for the same conduct in the United States, another state, or a municipality. The statute does not include foreign countries in the list. The defendant argued that the Colorado Supreme Court's decision in People v. Morgan, 785 P.2d  1294 (Colo. 1994), requires dismissal of his case. In that case, the supreme court stated "[t]he better reading of section 18-1-303 uniformly abolishes the dual sovereignty doctrine, prohibiting prosecution uder Colorado law when the defendant has been subjected to prior prosecution by any separate sovereign - federal, state, or tribal". The court of appeals distinguished People v. Morgan finding that the holding is limited to only prosecutions by federal, state, or tribal authorities, not foreign authorities. Therefore, section 18-1-303, C.R.S., did not bar the defendant's subsequent Colorado prosecution. (For more information, contact Michael Dohr.)



Markwell v. Cooke, Colorado Supreme Court No. 20SC585 (March 15, 2021)

Holding: The requirement of article V, section 22 of the Colorado constitution that a bill be "read at length" is not satisfied when a chamber of the general assembly uses automated software to have multiple computers simultaneously give voice to different portions of a bill at a speed of about 650 words per minute. However, while a court has the authority to determine in a case before it whether a specific method actually used by a chamber of the general assembly to effectuate a "reading" complies with the reading requirement, the separation of powers doctrine prohibits a court from prescribing the form or manner in which the general assembly may comply with the reading requirement in the future.

Case Summary: Article V, section 22 of the Colorado constitution requires every bill to be read "at length on two different days in each house" but the requirement to read at length may be "dispensed with upon unanimous consent of the members present." While such unanimous consent is typically granted, during the 2019 legislative session, a senator requested that House Bill 19-1172, a 2,023-page recodification bill, (HB 1172) be read at length on second reading. In response, the secretary of the senate (secretary) directed senate staff to upload the bill to multiple computers and use automated software to recite different portions of the bill simultaneously at the maximum rate of approximately 650 words per minute. Four to six computers did this, creating an unintelligible recitation of the bill. The senator who had requested the reading at length and two other senators objected to this method of "reading" the bill and requested that the computers' recitation rate be slowed down. Both the secretary and the president of the senate (president) refused to do so, and the computers completed the recitation process a few hours later.

The objecting senators filed a complaint for injunctive relief and declaratory judgment against the secretary and the president in the Denver District Court. The district court quickly granted a temporary restraining order prohibiting the secretary and the president from: (1) "refusing to read legislation ... in an intelligible fashion" without the unanimous consent required to dispense with the reading requirement; and (2) passing HB 1172 in violation of article V, section 22 "by failing to read the bill out loud on two consecutive days." After determining that the case did not present a nonjusticiable political question and that the objecting senators had a reasonable probability of success on the merits, the district court entered a preliminary injunction requiring the secretary to comply with the reading requirement by using "a methodology that is designed to read legislation in an intelligible and comprehensive manner, and at an understandable speed." After the Senate passed HB 1172 in compliance with the court's requirements, the court made the injunction permanent and issued a declaratory judgment, stating that: (1) using multiple computers to read different portions of the bill simultaneously "at an incomprehensible speed" violates the reading requirement of article V, section 22; and (2) the secretary must read all future legislation "in an intelligible manner and at an understandable speed" if a senator objects to dispensing with the reading requirement. The parties then filed a joint motion seeking direct review by the Colorado Supreme Court.

The supreme court granted the joint motion for direct review and agreed to review the following issues: (1) Whether the district court erred by failing to find that the dispute over the manner of "reading" a bill is a nonjusticiable political question; (2) Whether the district court correctly granted injunctive relief to direct the manner of the Senate's reading of a pending bill; and (3) Whether the district court erred in granting declaratory relief in light of non-textual parameters it established to direct bill readings in the Senate for HB 1172 and future bills. The supreme court held that: (1) The dispute is justiciable because constitutional interpretation is "peculiarly within the province of the judiciary" and interpretation of article V, section 22 of the Colorado constitution "in no way transgresses the bounds of another branch of government;" (2) The "unintelligible sounds" produced by multiple computers rapidly reading different sections of HB 1172 simultaneously do not  comply with the reading requirement because they do not conform with any definition of reading; and (3) The district court erred by prescribing requirements for the senate to follow in complying with the reading requirement in the future because "the separation of powers doctrine requires no less and permits no more than to have us interpret the constitution and determine whether the legislature complied with it [and] prohibits us from dictating to our coequal branch of government how to comply with the reading requirement moving forward."  Two justices wrote separate dissents, both joined in by each other and a third justice. The first dissent stated that "the plain language of article V, section 22 simply requires that bills be 'read.' or uttered aloud. Nothing more." The second dissent stated that, to the extent that "read" is ambiguous, the majority decision showed "insufficient deference to the Senate's interpretation of a constitutional provision governing the internal affairs of the legislative branch" and that "[s]eparation of powers demands more than the majority's rule that courts can't tell the legislative branch what to do but can tell it what not to do." (For more information, contact Jason Gelender.)




In 2021, the Colorado Supreme Court decided three cases addressing common law marriage in Colorado. In In re Hogsett & Neale, 2021 CO 1, the supreme court refined the test for proving common law marriage articulated in People v. Lucero, 747 P.2d 660 (Colo. 1987) to reflect changed social and legal circumstances since Lucero was decided, including the recognition of same-sex marriage. In In re Marriage of LaFleur & Pyfer, 2021 CO 3, the supreme court recognized common law same-sex marriage and held that a court may recognize a same-sex marriage entered into before the state recognized same-sex couples' fundamental right to marry in October 2014. Finally, in In re Estate of Yudkin, 2021 CO 2, the supreme court remanded the case to the probate court to apply the refined test for common marriage to the intestate death of an alleged different-sex common law spouse.

In re Hogsett & Neale, Colorado Supreme Court No. 19SC44 (January 11, 2021)

Holding: The Colorado Supreme Court announced a revised Lucero test for proving common law marriage, finding that the test's current factors had become less reliable to distinguish marital and nonmarital relationships and that "the gender-differentiated terms and heteronormative assumptions in the Lucero test render it ill-suited for same-sex couples." Under the revised test, "common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement. The key question is whether the parties intended to enter a marital relationship--that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation." Courts should "give weight to evidence reflecting a couple's express agreement to marry. In the absence of such evidence, the parties' agreement to enter a marital relationship may be inferred from their conduct." The Lucero factors may still be relevant "but must be assessed in context; the inferences to be drawn from the parties' conduct may vary depending on the circumstances." The manifestation of the parties' agreement to marry "need not take a particular form." Applying the test, the supreme court upheld the lower courts' determination that Hogsett and Neale were not married at common law.

Case Summary: In re Hogsett & Neale involved two women who were in a 13-year relationship, from 2001 to 2014. They were never formally married. At the end of the relationship, the parties filed for divorce and mediated a separation agreement that included spousal maintenance and retirement assets. They dismissed the initial action when the court determined it would need to first find the existence of a common law marriage. When the separation agreement fell through, Hogsett filed again for dissolution of marriage, with Neale moving to dismiss, asserting that there was no common law marriage. Although the couple had a ceremony and wore rings expressing a committed relationship, purchased a home together, and had joint bank and credit accounts, the district court concluded that Hogsett had not met the burden of establishing common law marriage under the Lucero test. The court of appeals affirmed, noting that credible evidence supported both Hogsett's belief that she was married and Neale's lack of intent to be married. In applying the test, the district court and court of appeals both acknowledged that many of the Lucero test's indicia of marriage, such as joint tax filings and reputation in the community as a married couple, were unavailable to the couple prior to the U.S. Supreme Court's decision in Obergefell v. Hodges, 576 U.S. 644 (2015), which held that states cannot deprive same-sex couples of the fundamental right to marry. (Colorado recognized same-sex marriage approximately eight months before Obergefell as a result of the Tenth Circuit's decision in Kitchen v. Herbert, 755 F.3d 1193, 1229-30, (10th Cir. 2014).) The Colorado Supreme Court granted certiorari to review the factors that a court should consider in determining whether a common law marriage exists between same-sex couples.

Possible Considerations for General Assembly: The district court, court of appeals, and supreme court all noted that Colorado is one of only ten states that has not abolished common law marriage. While the courts acknowledged that the abolition of common law marriage was not before the courts, the courts questioned the continued usefulness of common law marriage given the general accessibility of licensed marriage, the trend toward more egalitarian marriages, and the law's equal treatment of children born to unmarried parents. Further, the Colorado courts noted that common law marriage cases use judicial resources and are "fact-intensive and invasive," forcing judges to "assess the degree to which a couple's conduct conforms to marital ideal." Concurring opinions from the courts called on the legislature to abolish common law marriage. (For more information, contact Brita Darling.)

In re Marriage of LaFleur & Pyfer, Colorado Supreme Court No. 19SC1004 (January 11, 2021)

Holding: The Colorado Supreme Court held that a court may recognize a common law marriage entered into in Colorado before the state recognized same-sex couples' fundamental right to marry for two reasons. First, Obergefell struck down state laws that excluded same-sex couples as unconstitutional. The general rule is that a statute that is declared unconstitutional is void ab initio; it is inoperative as if it had never been enacted. "Consequently, state law restrictions [i.e., Colo. Const. art. II, sec. 31, and section 14-2-104 (1)(b) and (2), C.R.S.] held unconstitutional in Obergefell cannot serve as an impediment to the recognition of a same-sex marriage predating that decision." Recognition of the same-sex marriage is the remedy for a state's earlier violation of the couple's constitutional right. The relationship must still satisfy the revised test for establishing a common law marriage as announced in Hogsett.

Second, Obergefell applies retroactively to marriages, including common law marriages predating the decision. Because the Obergefell court applied its rule of federal law to the litigants before it, the Colorado Supreme Court concluded that the holding that declared restrictions on same-sex marriages unconstitutional must be given retroactive effect. 

Adopting the reasoning from cases that struck down laws that criminalized interracial marriage, the supreme court rejected LaFleur's contention that, as a matter of law, it was impossible for a same-sex couple to form the requisite intent to enter into common law marriage before Colorado recognized same-sex couples' right to marry. Establishing the intent to enter into a marital relationship was sufficient, even though the relationship was not yet recognized. Applying the refined test for common law marriage under Hogsett, the supreme court affirmed the district court's ruling of common law marriage and remanded the case for determination of property division and assets in accordance with Colorado's dissolution statutes. Of Note: The supreme court's opinion includes a history of laws and court cases relating to common law marriage and same-sex marriage.

Case Summary: In In re Marriage of LaFleur & Pyfer, Pyfer filed for dissolution of marriage, alleging that he had entered into a common law marriage with his same-sex partner LaFleur. In 2003, the parties held a ceremony before friends and family and exchanged vows and rings. LaFleur asserted that a common law marriage claim was legally impossible because at the time of the 2003 ceremony, Colorado did not recognize same-sex marriages, and, knowing it was not legal, he never mutually consented to a marriage that would be legally binding with respect to his assets. (For more information, contact Brita Darling.)

In re Estate of Yudkin, Colorado Supreme Court No. 19SC234 (January 11, 2021)

Holding: Finding that the district court magistrate's record was not clear as to whether Yudkin and Dareuskaya mutually agreed to be married, the Colorado Supreme Court directed the district court to apply the revised test for proving common law marriage under Hogsett. The supreme court directed the district court to look for evidence of the couple's express intent to marry. In the absence of such intent, mutual intent may be inferred from conduct that is judged in context. Contrary to the court of appeal's assertion that essentially presumed common law marriage from cohabitation and holding out as married, the supreme court cautioned, "No single factor is dispositive." Further, the supreme court clarified that the factors are flexible and that the district court's examination of the couple's conduct "is not to test the couple's agreement to marry against an outdated marital ideal, but to discover their intent."

Case Summary: In In re Estate of Yudkin, Dareuskaya claimed the right to serve as executor of Yudkin, her alleged different-sex common law spouse, after his intestate death. While Yudkin and Dareuskaya cohabitated and held themselves out in the community as married, they did not file joint tax returns or own joint property and did not share a last name. The district court magistrate concluded that Dareuskaya had not proven a common law marriage, finding it extremely relevant that Yudkin and Dareuskaya filed separate state and federal tax returns. The court of appeals concluded that the magistrate erred because the parties agreed to be married and met two of the Lucero factors most likely to show intent to be married: cohabitation and holding themselves out as married. (For more information, contact Brita Darling.)




Elder v. Williams, Colorado Supreme Court No. 19SC1009 (December 21, 2020)

Holding: Claims for compensatory relief and equitable remedies under the Colorado Anti-Discrimination Act (CADA) do not and could not lie in tort for purposes of the Colorado Governmental Immunity Act (CGIA) and therefore are not barred by the CGIA. In addition, the provision in section 24-34-405 (8)(g), C.R.S., exempting certain CADA claims for compensatory damages against "the state" from the CGIA applies whether the claims are made against the state itself, a state agency, or a political subdivision of the state.

Case Summary: A former employee of the El Paso County Sheriff's Office (EPSO) filed CADA claims against EPSO for age discrimination and retaliation. The plaintiff sought front pay and compensatory damages for both claims. EPSO filed a motion to dismiss the claims on the grounds that compensatory damages and front pay are legal remedies that lie or could lie in tort and are barred by the CGIA. The district court denied the motion to dismiss, concluding that the claims are not barred by the CGIA.

On appeal, a division of the Colorado Court of Appeals acknowledged that another division of the court of appeals had, in Houchin v. Denver Health, 2019 COA 50M, held that the CGIA bars CADA claims for compensatory damages asserted against political subdivisions of the state because: (1) compensatory damages are not an equitable remedy and (2) Section 24-34-405 (8)(g), C.R.S., exempts a CADA claim for compensatory damages from the CGIA only when the claim is made against "the state", meaning the state of Colorado or an agency of the state of Colorado, and not when the claim is made against a political subdivision of the state. However, the court of appeals in this case disagreed with the Houchin court, holding that the CGIA does not bar the plaintiff from seeking compensatory damages for retaliation because: (1) the compensatory damages allowed under the CADA do not relieve tort-like personal injuries, are merely incidental to the CADA's primary purpose of ending discrimination, and therefore do not lie in tort and are not subject to the CGIA and (2) the word "state", as used in section 24-34-405 (8)(g), C.R.S., refers to all state entities able to seek immunity under the CGIA, including political subdivisions of the state. The decision created a conflict in the court of appeals as to whether a CADA claim for compensatory damages that is made against a political subdivision of the state is barred by the CGIA.

The Colorado Supreme Court affirmed the holding of the division of the court of appeals in this case, resolving the conflict. The court held that claims for compensatory relief under CADA do not and could not lie in tort and are not barred by the CGIA because such claims derive from statutory duties and are designed to implement the policy of eliminating intentional discrimination and not to compensate for individual personal injuries. The court also affirmed that the phrase "the state" as used in section 24-34-405 (8)(g), C.R.S., includes both the state of Colorado and any state agency or political subdivision. The court also affirmed that claims for front pay under CADA are equitable in nature and are not barred by the CGIA. (For more information, contact Megan Waples.)



People v. Lee, Colorado Supreme Court No. 19SC749 (November 23, 2020)

Holding: A defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon subsection of the second degree assault statute, section 18-3-203 (1)(b), and the strangulation subsection of that statute, section 18-3-203 (1)(i). Rather, the defendant must be charged under the strangulation subsection.

Case Summary: Following an alleged assault, the defendant was charged with two counts of second degree assault under the strangulation subsection, section 18-3-203 (1)(i). Eight months later, the People added two additional counts of second degree assault under the deadly weapon subsection, section 18-3-203 (1)(b), asserting that the defendant had used his hands as a deadly weapon. Second degree assault by strangulation is also a class 4 felony and an extraordinary risk crime, with a potential prison sentence of 2 to 8 years. Second degree assault with a deadly weapon is a class 4 felony, but because it is a per se crime of violence, it carries a longer potential prison sentence of 5 to 16 years. 

The trial court granted the defendant's motion to dismiss the added counts under the deadly weapon subsection. The court of appeals affirmed the dismissal because charging the same conduct under both subsections, which carry different maximum penalties, would violate a defendant’s right to equal protection.

The Colorado Supreme Court affirmed, holding that a defendant can only be charged for conduct involving strangulation under the strangulation subsection. The court first examined the state's equal protection jurisprudence, citing prior decisions holding that the due process clause of the Colorado Constitution, Colo. Const. art. II, § 25, guarantees equal protection under the law. A defendant's guarantee of equal protection under the Colorado Constitution is violated when two criminal statutes proscribe identical conduct, but one statute punishes that conduct more harshly. The court recognized that Colorado's approach when two criminal statutes proscribe identical conduct with different penalties is different than federal equal protection standards, and the court declined to adopt the federal approach.

Turning to the statute at issue, the court found that the second degree assault-deadly weapon and second degree assault-strangulation subsections proscribe identical conduct because strangulation will always involve the use of a deadly weapon, the perpetrator's hands. Because these provisions proscribe identical conduct but the deadly weapon subsection punishes that conduct more harshly than the strangulation subsection, the court held that, under Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both subsections. Rather, the defendant must be charged under the strangulation provision.

The court based its ruling on the plain language of the statute, but also noted that the legislative history supported the court's holding because it showed the bill sponsor's intent that all strangulations would be prosecuted under the specific strangulation provision. (For more information, contact Conrad Imel.)

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