The Colorado Supreme Court begins its fall 2019–spring 2020 session this week. The court will hear oral arguments in eight cases between Tuesday and Thursday, with issues ranging from open meetings disputes and questions of water law.
John Doe v. Colorado Department of Public Health and Environment
Questions:
• Whether the Court of Appeals correctly held that an entire state agency, here the Colorado Department of Public Health and Environment, cannot be a “state public body” under the Colorado Open Meetings Law.
• Whether the Court of Appeals correctly held that the department’s referral of a physician to the Colorado Medical Board for possible investigation is not a “final agency action” subject to judicial review under the Colorado Administrative Procedure Act.
Court of Appeals Holding: The Court of Appeals found that because the CDPHE is not a “state public body” under the Open Meetings Law and the board did not have the authority to create a policy for the department to refer physicians to the board for disciplinary investigations relating to physicians’ certification of patients for medical marijuana, it was therefore not subject to the requirements of the open meetings law.
The Court of Appeals also found the department’s referrals to the board of a group of doctors are not subject to review under Colorado’s Administrative Procedure Act because the referrals are not a final agency action. And because the policy was not a legislative rule, it was not required to follow rulemaking requirements.
The court upheld the dismissal of the claims against the board, reversed the judgment against the department and remanded the case to Denver District Court for summary judgment in favor of the department.
Colorado Medical Board v. McLaughlin
Question: Whether an agency investigative subpoena can have a lawfully authorized purpose even if the investigation was prompted by a complaint from a different agency under a referral policy that violated the Open Meetings Law or Administrative Procedure Act.
Court of Appeals Holding: Dr. Scott McLaughlin appealed the Denver District Court’s enforcement of a subpoena issued by the Colorado Medical Board seeking medical records of patients for whom McLaughlin had recommended medical marijuana.
McLaughlin argued the policy prompting the board’s investigation was adopted in violation of Colorado’s Open Meetings Law, the State Administrative Procedure Act and the Colorado and U.S. constitutions.
The court agreed with McLaughlin that the subpoena did not have a lawful purpose and reversed the district court’s judgment. On the same day, another Court of Appeals division released an opposite decision in a similar case, Colorado Medical Board v. Boland. The panel upheld the district court’s enforcement of a subpoena issued on the basis of the same challenged policy. In Boland, the division assumed the policy is invalid but concluded that the subpoena had a lawful purpose. Oral arguments for Colorado Medical Board v. Boland are also scheduled for this week.
Boland v. Colorado Medical Board
Question: Whether an agency investigative subpoena can have a lawfully authorized purpose even if the investigation was prompted by a complaint from a different agency under a referral policy that violated the Open Meetings Law or Administrative Procedure Act.
Court of Appeals Holding: Dr. James Boland appealed the Denver District Court’s enforcement of a subpoena issued by the Colorado Medical Board after the CDPHE referred Boland to the Board.
Boland claimed the department adopted the policy prompting the Board’s investigation in violation of Colorado’s Open Meetings Law, the State Administrative Procedure Act and the Colorado and U.S. constitutions. The Court of Appeals disagreed, deciding the board issued the subpoena for a lawful purpose and upheld the district court’s judgment.
Al-Turki v. People
Question: Whether, pursuant to section 18-1.3-406, C.R.S. (2017), the district court may modify to probation the sentence of a defendant convicted of a sex offense, after the defendant has spent 119 days in prison and where the defendant demonstrates “exceptional,” “unusual and extenuating circumstances.”
Court of Appeals Holding: The Court of Appeals upheld a denial by the Arapahoe County District Court of a postconviction relief motion by Homaidan Al-Turki. Al-Turki, who committed crimes of violence under the Colorado Sex Offender Lifetime Supervision Act of 1998, moved to have his sentence modified to probation. The Court of Appeals upheld the district court’s denial based on the Colorado Supreme Court’s 2015 decision in Chavez v. People.
In Re the Parental Responsibilities Concerning W.C., and Concerning Nanke and Conkling
Question: Whether the Court of Appeals erred in determining that a district court retains continuing jurisdiction to review and decide motions to modify parental responsibilities brought under Colorado’s Uniform Dissolution of Marriage Act while the trial court’s prior orders regarding the same matter are on appeal.
Court of Appeals Holding: Winston Conklin appealed Denver District Court’s permanent orders granting Kimberly Ann Nanke sole decision-making authority and majority parenting time.
While his appeal was pending in the Court of Appeals, Conklin filed motions in district court to modify parenting time and decision-making. The district court found it did not have jurisdiction to consider those motions while the case was pending in the Court of Appeals.
But the Court of Appeals found the district court still has jurisdiction to consider motions to modify parenting time and decision-making while permanent orders are on appeal. But the motions have to be based solely on a material change in circumstances that occurred since the district court’s permanent orders.
People v. Rojas
Question: Whether the Court of Appeals erred by concluding section 26-2-305 of the Public Assistance Act created an independent criminal offense for food stamp theft that abrogated the state’s authority to prosecute under the general theft statute.
Court of Appeals Holding: Rojas argued she could only be prosecuted under a more specific statute criminalizing the theft of food stamps by a fraudulent act. The Court of Appeals agreed with Rojas’ claim that the legislature intended that she could only be prosecuted under the more narrow theft of food stamps statute. The court vacated her theft convictions.
Santa Maria Reservoir Company v. Warner
Questions:
• Whether the Water Court for Water Division 3 erred as a matter of law in holding that over 50,000 acre-feet of storage rights for which appellee Santa Maria Reservoir Company sought a change of type and place of use were “imported water,” thus authorizing SMRC to fully consume previously unconsumed return flows without imposition of terms and conditions to prevent injury to appellant Jim Warner, whose water rights depend on such return flows: where the Water Court’s “imported water” analysis failed to consider the hydraulic connections between the return flows and San Luis Valley aquifers; where the water court failed to consider water court and Supreme Court precedent establishing these aquifers to be hydraulically connected to valley water systems; and where the water court’s decision is inconsistent with the General Assembly’s recognition of the need to conjunctively manage surface and ground water so as to preserve the Valley’s water resources.
• Whether the water court for Water Division 3 erred in holding that SMRC was not required to quantify the amount and location of its historic return flows so as to protect Warner and other Division 3 water users from injury, even if the water for which SMRC sought a change of water right was not “imported water,” where Colorado law unambiguously requires a quantification of historical consumptive use and maintenance of return flows.
• Whether the water court for Water Division 3 erred in holding that SMRC was entitled to fees and costs for the expense of responding to Warner’s Motion for Reconsideration, where Warner’s challenge to the water court’s “imported water” holding is well grounded in facts and law.
Water Court Holding: In Water Division 3, SMRC filed for approval of a plan for a change of water right that would authorize the company to change the type and place of use of certain water rights diverted from the Rio Grande River through the Rio Grande Canal, from the previously decreed use of irrigation of areas serviced by the subject rights, to add the new use of replacement of well depletions for wells located anywhere within Water Division 3.
The trial court held SMRC’s water rights were imported water, and SMRC was entitled to change and fully consume all of its rights diverted into the closed basin without consideration of reduced water supply and resultant injury to surface streams and the confined and unconfined aquifers caused by such consumption or by the discontinuance of return flows from SMRC’s water rights. Warner holds both surface water rights and underground water rights withdrawing from surface streams, the unconfined aquifer, and the confined aquifer. In a notice of appeal, Warner argued the trial court did not consider a previous Water Division 3 holding and Colorado Supreme Court decision upholding it. According to the holding, the confined aquifer, unconfined aquifer, and surface streams within the San Luis Valley constitute an overappropriated, hydraulically connected tributary system, such that withdrawal of water from the confined aquifer system will cause out-of-priority depletions to surface streams, materially injure existing water rights in the confined and unconfined aquifers, and interfere with Colorado’s ability to fulfill its obligations under the Rio Grande Compact.
The trial court also found Warner was not entitled to maintenance of return flows because Warner’s water rights were senior to the SMRC’s rights, that the decrees for Warner’s water rights allowed SMRC to discontinue seepage as a source of supply, and that a water user seeking to change its water rights is not required to maintain historic tail water and waste water flows.
People In the Interest of J.D.
Question: Whether the court of appeals erred by granting a juvenile magistrate jurisdictional authority to reconsider its order accepting a plea.
Court of Appeals Holding: The Court of Appeals considered whether a magistrate who accepted a juvenile’s guilty plea has jurisdiction over a subsequent motion to withdraw the plea based on claims of ineffective assistance of plea counsel. In this case, the magistrate granted J.D.’s motion to withdraw his plea.
On review in the Weld County District Court, the court said the magistrate did not have jurisdiction over that motion and vacated the order. But the Court of Appeals found in favor of J.D. that the magistrate had jurisdiction and reversed the district court’s decision.
—Julia Cardi