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.
Counterman v. Colo., U.S. Supreme Court No. 22–138 (June 27, 2023)
Holding: The State must prove in true-threats cases that the defendant had some subjective understanding of the threatening character of the statements, based on a showing no more demanding than recklessness.
Case Summary: From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C.W., a local singer and musician. The two had never met and C.W. never responded to Counterman. C.W. tried to block Counterman but he created a new Facebook account each time and continued contacting C.W. Some of Counterman's messages contemplated violent harm befalling C.W., putting C.W. in a constant state of fear and affecting her day-to-day life. C.W. was afraid Counterman was following her and would hurt her. She had trouble sleeping and suffered from anxiety. C.W. stopped walking alone and attending social engagements. She also canceled music performances, causing her financial strain. Eventually, C.W. contacted law enforcement. In 2016, Counterman was arrested and charged with one count of stalking (credible threat), one count of stalking (serious emotional distress), and one count of harassment. The prosecution dismissed the charge for stalking (credible threat).
Counterman moved to dismiss charges on First Amendment grounds, arguing that his messages were not "true threats", pursuant to section 18-3-602 (1)(c) and could not form the basis of a criminal prosecution. The trial court assessed the "true threat" standard using an objective, reasonable person standard. The trial court decided Counterman's statements rose to the level of a "true threat" and ruled the First Amendment posed no bar to prosecution. The court sent the case to a jury, which found Counterman guilty. Counterman was sentenced to four-and-a-half years in prison. The Colorado Court of Appeals affirmed the conviction. The Colorado Supreme Court denied review.
The United States Supreme Court granted certiorari because courts are divided on whether the First Amendment requires proof of a defendant's mindset in true-threat cases and, if so, what mens rea standard is sufficient.
In a 7-2 decision, Justice Kagan authored the majority opinion. Justice Kagan stated that while the First Amendment protects freedom of speech, there are a few limited, "historic and traditional categories" of speech – incitement, defamation, and obscenity – that are not protected. "True threats" of violence, another historically unprotected category of speech, are "serious expression[s] conveying that a speaker means 'to commit an act of unlawful violence'". The United States Supreme Court has noted that the existence of a threat depends on the recipient's perception and not the speaker's intent. Even so, the First Amendment may still demand a subjective mental-state requirement that shields some true threats from liability.
The Court noted the reason the First Amendment may demand a subjective-mental state requirement relates to a chilling effect on speech. A prohibition on speech may chill or deter a speaker, resulting in "self-censorship of speech". A tool to prevent that outcome is to condition liability on the State's showing of a culpable mental state. The Court recognized that the requirement comes at a cost: shielding threatening speech because the State cannot prove what the defendant thought. The added element, however, reduces the prospect of chilling fully protected expression. The Court stated that this "strategic protection" is featured in case precedent concerning the most prominent categories of historically unprotected speech. The Court recognized that even though a culpable mental states lessens the chill of protected speech, it makes prosecution of proscribable and often dangerous communications harder. To balance the two effects, the Court determined the requisite mens rea.
The Court held that among the mens rea standards, recklessness offers the right path forward. Recklessness is morally culpable conduct involving a "deliberate decision to endanger another". The Court stated that in the threats context, a speaker is aware that others could regard the speaker's statements as threatening violence and delivers the statements anyway.
The Court held that in Counterman's case, the government used only an objective standard, without considering Counterman's understanding of his statements as threatening, in violation of the First Amendment. The Court vacated the judgment of the Colorado Court of Appeals and remanded the case for further proceedings consistent with the opinion. (For more information, contact Alana Rosen.)
Aurora Public Schools v. A.S., Colorado Supreme Court No. 22SC824 (June 20, 2023)
Holding: The Child Sexual Abuse Accountability Act (part 12 of article 20, of title 13, C.R.S.) is unconstitutionally retrospective to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the enactment of the Act and for which previously available causes of action were time-barred.
Case Summary: In 2021, the General Assembly enacted the Senate Bill 21-088, the Child Sexual Abuse Accountability Act (CSAAA). The CSAAA creates a new statutory cause of action for a victim of sexual misconduct that occurred when the victim was a minor that is distinct from any common law cause of action that is or was available to the victim. For sexual misconduct that occurred between January 1, 1960, and January 1, 2022, the CSAAA creates a three-year window to bring a claim under the act.
Article II, section 11 of the Colorado Constitution prohibits a law that is "retrospective in its operation". Not all laws that are retroactive are unconstitutionally retrospective. A law is impermissibly retrospective "if it (1) impairs a vested right; or (2) creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past." The Court explained that when the statute of limitations has run and bars a claim, the right to plead that the claim is barred is a vested right that, under the retrospectivity clause, cannot be impaired by subsequent legislation. The Court further explained that the retrospectivity clause prohibits the legislature from accomplishing indirectly which it could not do directly. The Court clarified that there is no "public policy exception" to the ban on retrospective laws.
The Colorado Supreme Court held that "the CSAAA is unconstitutionally retrospective to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the Act and for which previously available causes of action were time-barred." The CSAAA violates the retrospectivity clause because it creates a new obligation and disability with respect to past transactions and the three-year window to bring a new cause of action created in the CSAAA accomplishes the same ends as reviving a time-barred claim.
The Court did not hold that the CSAAA is unconstitutional in its entirety, but only to the extent that it permits a victim to bring a claim for which previously available causes of action are time-barred. (For more information, contact Conrad Imel.)
In re People v. Smith, Colorado Supreme Court No. 23SA2 (June 20, 2023)
Holding: The term "capital offenses", as it appears in article II, section 19 (1)(a) of the Colorado Constitution, plainly and unambiguously refers to offenses for which the General Assembly has statutorily authorized the imposition of the death penalty.
Case Summary: Article II, section 19 of the Colorado Constitution (section 19) guarantees persons the right to bail, except in specified circumstances, including "[f]or capital offenses when proof or presumption is great[.]" In 2020, the General Assembly abolished the death penalty for offenses charged on or after July 1, 2020.
In this case, the defendant was charged in May 2022 with one count of first degree murder, and the defendant requested bail. The district court determined that earlier decisions of the Colorado Supreme Court required it to apply the "classification theory", which considers first degree murder a capital offense based on classification, not based on penalty. Because the defendant was charged with a capital offense, and "notwithstanding that [Colorado does not] have the death penalty", the district court denied bail. The defendant appealed.
The Colorado Supreme Court held that the term "capital offenses", as it appears in section 19 (1)(a), plainly and unambiguously refers to offenses for which the General Assembly has statutorily authorized the imposition of the death penalty. The Court reached its conclusion for two reasons. First, the plain language of section 19 (1)(a) indicates that the phrase "capital offenses" refers, as it always has, to offenses statutorily punishable by death. So if the death penalty is not statutorily authorized for an offense, then, by definition, the offense is not a capital offense. Second, the phrase "capital offenses" does not mean the same thing as "first degree murder." The framers used "murder" in other parts of section 19, which suggests that when they intended to say "murder" as opposed to "capital offenses", they knew how to do so. The Court also recognized that when the General Assembly wanted to include exceptions for offenses not subject to the death penalty, it did so by constitutional amendment and if "the legislature were free to create constitutional capital offenses simply by categorizing crimes not punishable by death as capital, then no such constitutional amendments would have been necessary."
The Court also found that the General Assembly’s decision to not amend statutory sections that refer to capital offenses when it abolished the death penalty did not reflect a legislative determination that the capital offenses exception would continue to apply to first degree murder. Instead, the statutes continue to be meaningful because offenses charged prior to July 1, 2020, remain subject to the death penalty. One justice authored a special concurrence "to flag for the legislature that it may wish to review any statutory provisions that reference 'capital offenses' or an iteration of that term." (For more information, contact Conrad Imel.)
Arvada Vill. Gardens, LP v. Garate, Colorado Supreme Court No. 23SA34 (May 15, 2023)
Holding: Federal law (CARES Act) requiring 30-day notice before evicting a tenant prevails over Colorado law requiring 10-day notice.
Case Summary: The plaintiff, a tenant with a Section 8 housing voucher, contested her eviction because it occurred 23 days after she received notice. The CARES Act provided for tenants to have 30 days after notice before an eviction. Colorado law states that tenants be given only 10 days notice before an eviction. The issue for the court was whether the expiration of other provisions of the CARES Act extended to the 30-day notice provision. The court held that because the CARES Act notice provision did not include an expiration date, unlike other provisions of the CARES Act, it was therefore still applicable. Because federal law trumps state law, the court held that the CARES Act notice provision prevails over Colorado law concerning timeline for notice of eviction and certain tenants must be given 30 days notice prior to eviction. The court also exercised jurisdiction under C.A.R. 2 due to the case being "of significant public importance." (For more information, contact Jessica Chapman.)
Turoff v. Itachi Capital, Inc., Colorado Court of Appeals No. 21CA0825 (December 29, 2022)
Holding: 1) In light of C.R.S. section 13-22-228(1)(e), neither C.R.S. section 13-4-102 nor C.A.R. 1 gave the Court of Appeals jurisdiction to review a district court order that vacated an arbitration award and ordered a new hearing.
2) Because a corporation failed to file a motion asking the district court to confirm an arbitration award pursuant to the requirements of C.R.C.P. 7(b)(1), the corporation could not use C.R.S. section 13-22-228(1)(c) to seek appellate review of the district court's order vacating the arbitration award and ordering a new hearing.
3) A corporation's embedded request for the district court to confirm an arbitration award in a response to a woman's motion to vacate the arbitration award was not allowed under C.R.C.P. 121 section 1-15(1)(d). And because the corporation did not file a motion asking the district court to confirm the arbitration award pursuant to the requirements of C.R.C.P. 7(b)(1), the corporation could not use C.R.S. section 13-22-228(1)(c) to seek review of the district court's order vacating the arbitration award and ordering a new hearing.
Case Summary: A corporation (the corporation) and a woman (the woman) jointly owned an LLC. The corporation was the majority owner. The LLC's operating agreement allowed the corporation to compel the woman to sell her LLC interest under certain circumstances. Pursuant to the provisions of the operating agreement, the corporation tried to compel the woman to sell her interest, and the woman refused.
In light of the conflict over the woman refusing to sell her LLC interest, the corporation filed an arbitration demand. The woman asked to postpone arbitration so she could retain counsel. Once the woman retained an attorney, her attorney asked to postpone the arbitration so the attorney could get up to speed on the case and conduct discovery. The arbitrator denied the attorney's request for postponement. The arbitrator then found in favor of the corporation and awarded it attorney fees and costs.
The woman filed a motion to vacate the arbitration award against her. The corporation's response to the woman's motion said there was no legal basis to vacate the award and asked the district court to confirm the arbitration award. The corporation's request for confirmation of the arbitration reward in its response was not identified as a cross-motion.
The district court vacated the arbitration award because the arbitrator's denial of the woman's discovery request substantially prejudiced her. The district court ordered the corporation and the woman to resubmit the dispute to the arbitrator for a new hearing. The corporation initiated an interlocutory appeal, stating that the district court erred by vacating the arbitration award against the woman.
The Court of Appeals determined that it did not have jurisdiction to review the district court's order to vacating the arbitration award and ordering a new hearing. The Court of Appeals dismissed the corporation's appeal. (For more information, contact Lennée Mozia.)
People v. Johnson, Colorado Court of Appeals No. 20CA0764 (December 8, 2022)
Holding: 1) In conjunction with the defendant's previous Louisiana charge for aggravated kidnapping of a 5-year-old child, evidence that a defendant allegedly told a 10-year-old child who was alone on a sidewalk that she was "the perfect age for a boyfriend", asked if she had "ever touched it", and then stated that he was "just curious" was insufficient to:
a) Establish the "substantial step" necessary to prove that the defendant attempted to invite or persuade the child to enter his vehicle in violation of C.R.S. sections 18-2-101 and 18-3-305(1);
b) Convict the defendant of enticement of a child under C.R.S. section 18-3-305(1);
c) Establish that the defendant intended to engage in unlawful sexual contact as defined by C.R.S. sections 18-3-401 and 18-3-404; and
d) Establish that the defendant intended to commit sexual assault as defined by C.R.S. section 18-3-402.
Case Summary: A 10-year-old child (the child) and her mother alleged that a defendant (the defendant) drove up to the child in his truck while the child was standing with only her dog on a sidewalk. The defendant allegedly made several statements to the child, and the Court of Appeals noted the following: (1) the defendant complimented the child's dog; (2) the defendant asked about the child's age, name, and where she lived; (3) after the child stated that she was 10, the defendant said that she was "the perfect age for a boyfriend"; (4) the defendant asked the child if she had "ever touched it"; and (5) the defendant then said he was "just curious". After this interaction that supposedly lasted less than two minutes, the defendant allegedly drove off in the opposite direction at a normal speed.
The defendant was arrested for enticement of a child pursuant to C.R.S. section 18-3-305(1). At trial, the prosecution presented evidence under C.R.E. 404(b) regarding the defendant's previous charge in Louisiana for aggravated kidnapping for allegedly persuading a 5-year-old child to enter his car, driving her to a store, and kissing her on the lips before letting her go (the CRE 404(b) evidence). The Defendant was convicted of enticement of a child under C.R.S. section 18-3-305(1).
On appeal, the defendant argued that the Court of Appeals should have vacated his conviction because the evidence against him was insufficient to convict him. The defendant also argued that the trial court should not have admitted the CRE 404(b) evidence submitted against him.
The court of appeals concluded that the evidence, including the CRE 404(b) evidence, against the defendant was not sufficient to convict the defendant of a violation of C.R.S. section 18-3-305(1). The defendant's conviction was vacated by the Court of Appeals. (For more information, contact Lennée Mozia.)
Doe v. Wellbridge Club Mgmt., Colorado Court of Appeals No. 21CA1299 (December 1, 2022)
Holding: An exculpatory provision in an athletic club membership agreement did not bar a premises liability claim against the club for the sexually abusive behavior of its employee against a member because (1) the provision did not express the parties' intention to waive sexual abuse claims in clear, unambiguous, and unequivocal language; and (2) the provision created a substantial likelihood that a reader would fail to recognize that the provision could apply to the risk of the club's employee sexually abusing a member due to the defendant's alleged negligence or failure to exercise reasonable care.
Case Summary: A minor child's (the Child's) grandfather signed a membership agreement that enabled the Child to use the facilities at an athletic club (the Club). In the membership agreement, there was an exculpatory provision that stated it released the Club from "...all claims, damages, liabilities, expenses, and costs arising out of, or relating to (a) the negligence of [the Club], its owners, managers, and employees...or (d) [the member's or member's guest's] use of [the Club's] facilities...." While at the Club, the Child received tennis instruction from the Club's employee (the Club Employee). It was alleged that the Club Employee sexually abused the Child on and off the Club's premises. In regard to his interaction with the Child, the Club Employee later pled guilty to sexual exploitation of a child and child abuse.
The Child's mother (the Mother) sued the Club for damages for alleged harm the Child suffered due to the sexual abuse committed by the Club Employee. The District Court dismissed the Mother's case, reasoning that the exculpatory provision/waiver in the membership agreement barred the Mother's claims.
The Court of Appeals reversed the District Court's dismissal of the Mother's case. Using the fourth factor of a four-factor test from Jones v. Dressel, 623 P.2d 370 (Colo. 1981), the Court of Appeals held that the Mother's lawsuit was not barred by the exculpatory provision in the Club's membership agreement because (1) the provision did not express the parties' intention to waive sexual abuse claims in clear, unambiguous, and unequivocal language; and (2) the provision created a substantial likelihood that a reader would fail to recognize that the provision could apply to the risk of a Club employee sexually abusing a member due to the Club's alleged negligence or failure to exercise reasonable care. (For more information, contact Lennée Mozia.)
Anschutz v. Dept. of Rev., Colorado Court of Appeals No. 21CA1242 (November 17, 2022)
Holding: The trial court erred in granting the department of revenue's motion to dismiss taxpayers' refund claim made in an amended state income tax return based on an amendment to federal income tax laws that applied to prior tax years. Taxpayers were entitled to file an amended state income tax return for the 2018 tax year claiming the entirety of their "excess business loss" as a deduction based on the federal CARES Act of 2020, which suspended the "excess business loss" deduction limits for the 2018 through 2020 tax years. Absent an amendment by the General Assembly to the state income tax code to not conform with changes to the federal Internal Revenue Code, section 39-22-103(5.3) unambiguously automatically incorporates amendments to the federal Internal Revenue Code, including amendments that relate to prior tax years. The department's emergency rule erroneously defined "internal revenue code" to exclude any federal statutory changes enacted after the last day of the taxable year and was not entitled to deference.
Case Summary: Congress enacted the CARES Act in March 2020, which Act retroactively reduced the federal taxable income for taxpayers who had "excess business loss" deductions for tax years 2018 through 2020 by suspending the limits on such deductions. In June 2020, the department adopted emergency rule 39-22-103(3.5), which states, in part, "'Internal revenue code' does not, for any taxable year, incorporate federal statutory changes that are enacted after the last day of that taxable year." Also in June, the General Assembly passed HB20-1420 (the "Tax Fairness Act"), which prevents taxpayers from using certain CARES Act provisions, including the unlimited "excess business loss" deduction, in calculating their Colorado taxable income for tax years ending on and after the enactment of the CARES Act, but before January 1, 2021, and for income tax years beginning on and after the enactment of the CARES Act, but before January 1, 2021. The Tax Fairness Act was signed into law in July 2020. Before the passage of HB20-1420, the taxpayers-appellants filed amended federal and Colorado income tax returns for tax year 2018, claiming the entirety of their "excess business loss" and seeking income tax refunds. The department rejected the refund claim citing the emergency rule. The taxpayers appealed to the district court, which court granted the department's motion to dismiss, reasoning that section 39-22-103(5.3) is ambiguous and the department's interpretation was reasonable, consistent with the General Assembly's later amendments to the statute, and entitled to deference. A panel of the Court of Appeals unanimously reversed and remanded the case, holding that while the General Assembly can amend the state income tax code to not confirm with changes to the Internal Revenue Code, until such amendments are effective, Colorado law automatically incorporates amendments to the Internal Revenue Code, whether retrospective or prospective in their operation. (For more information, contact Alison Killen.)