By: Alan Schindler, Esq. and Anna Goldman, Esq.
2024COA25 Hobbs v. City of Salida
March 7, 2024
Division III, Opinion by Judge Schutz; Judge Hawthorne concurs; Judge Jones dissents.
Decision: Affirmed.
Procedure: On appeal from Chaffee County District Court, Magistrate Dayna Vise.
Factual background and district court holding:
Salida adopted an ordinance authorizing it to issue amplified noise permits, which allow local businesses to hold “special events or activities, including, without limitation, musical performances or other entertainment events, fireworks displays, parades and seasonal commercial activities.” Salida Mun. Code § 10-90-80(a). Pursuant to the ordinance, no noise is permitted in excess of 85db(A) and the authorized activity must end at 10 p.m. absent prior special approval from the city.
Salida’s amplified sound permits allow the permittee to hold musical events between May 2 and October 31. Salida may issue no more than sixty permits per season to the same permittee. Thus, during a typical season, a permittee could hold approximately three outdoor musical events per week.
Colorado’s Noise Abatement Act (Act), §§ 25-12-101 to -110, C.R.S. 2023 (the “Act”) generally limits the sound level for residential neighborhoods to 50 db(A) between 7 p.m. and 7 a.m. § 25-12- 103(1), C.R.S. 2023. But Salida and High Side contend that the Act also authorizes cities to issue amplified sound permits. See § 25- 12-103(11)
Plaintiff Hobbs owns a home across from downtown Salida. Defendant High Side is a bar and restaurant with a patio that routinely featured a variety of live musicians. High Side is located in downtown Salida. In this action naming both High Side and the city of Salida as defendants, Hobbs asserted that the decibel level emanating from concerts on High Side’s patio exceeded the statewide limit. He alleged that High Side had held multiple events throughout the summer that were excessively loud. Salida and High Side both filed motions for judgment on the pleadings, which were granted by the district court. The district court reconciled the Act with Salida’s ordinance and resulting permits, reasoning that the Act unambiguously exempts Salida’s actions: “[T]he plain language of section 25-12-103(11) clearly states the legislative intent that the noise level limits established in the statute do not apply to political subdivisions or their permittees when holding music and cultural events.”
Issue: Whether the Act preempts local noise ordinances.
Here, the division addressed the interplay between the general noise standards set by the Act, and noise standards authorized through amplified noise permits issued by local governmental entities. The majority concluded that section 25-12-103(11) provides municipal entities, such as the City of Salida, with the authority to issue amplified noise permits to private entities to hold cultural, entertainment, athletic, or patriotic events, including, but not limited to, concerts and music festivals on the permittee’s property.
Hobbs argued that the exemption language of 25-12-103(11) applies only to concerts that occur on a city’s property, so it does not authorize Salida to issue amplified sound permits to restaurants such as High Side. Salida and High Side argue that the section applies to all property for which a permit is issued. The division agreed with Salida and High Side because the statute does not contain any limitation, express or implied, that a political subdivision may only authorize permits for performances on land it owns. Rather, the statute refers broadly to the “use of property” without any restriction with respect to who owns the property. Therefore, the Act does not preempt Salida’s noise ordinance on private entities.
Dissent:
Judge Jones argued that the plain text of section 25-12- 103(11), considered in context, mandates a conclusion that the exemption only authorizes a political subdivision of the state, such as a municipality, to issue amplified noise permits to entities which will use property that is used by that municipality. Judge Jones pointed to the language of the Act that says the Act shall “be construed to preempt or limit the authority of any municipality or county to adopt standards that are no less restrictive than the provisions of [title 25, article 12].”
24COA28, Aranci, Darnell, Miller, Lauck, and Werner v. Lower South Platte Conservancy District
March 21, 2024
Division II, Opinion by Judge Hawthorne; Judges Pawar and Taubman concur.
Decision: Reversed and remanded
On appeal from Logan County District Court, Judge Robert C. James.
Factual background and district court holding:
This appeal arises from the application of the Colorado Taxpayer’s Bill of Rights (TABOR), article 10, section 20 of the Colorado Constitution to a water conservancy district’s (the “district”) increasing its mill levy under the Water Conservancy Act, sections 27-45-101 to -153, C.R.S. 2023. The district court entered judgment determining that the district’s increase of its rate of levy from 0.5 mill to 1.0 mill for 2019 and subsequent years, without voter approval in advance, was constitutional under TABOR. The district court reasoned that section 37-45-122(2)(a)(III) of the Water Conservancy Act, the statute that controls how districts fix their rates of levy, predated TABOR and requires districts to fix the rate of levy based on a “mandatory, non-discretionary” formula. The court found that the legislature “anticipated that water conservancy district budgets would fluctuate from year to year and built in a set formula within the statute to allow for some flexibility, within limits, for such fluctuation.” Plaintiffs, a group of Colorado taxpayers and property owners within the district (the “taxpayers”), subsequently appealed.
Issue on appeal: Whether, under TABOR, a water conservancy district may increase its mill levy without voter approval in advance.
The division reversed the district court’s judgment, holding that it is unconstitutional under TABOR for a district to increase its mill levy without prior voter approval. The division noted in its holding that this case represents a narrow issue of whether the district may increase the mill levy from 0.5 to 1.0 mill without voter approval, as the parties agree that increasing the mill levy over 1.0 mill would require voter approval under TABOR.
The Colorado legislature adopted TABOR in 1992 with the intent to limit the ability of governmental entities to impose new taxes or increase their tax revenue without voter approval. Section 20(4)(a) of TABOR provides, in relevant part, that “districts must have voter approval in advance for… any… tax rate increase, mill levy above that for the prior year, … or a tax policy change directly causing a net tax revenue gain to any district.” Colo. Const. art. X, § 20(4)(a). Section 20(7) of TABOR imposes spending limits on districts and requires a district to refund revenue exceeding those limits unless the district’s retention of the excess revenue is approved by the voters. Colo. Const. art. X, § 20(7); see Huber v. Colo. Mining Ass’n , 264 P.3d 884, 890 (Colo. 2011).
If TABOR’s language is susceptible of more than one construction, then TABOR instructs that the “preferred interpretation shall reasonably restrain most the growth of government.” Colo. Const. art. X, § 20(1). But TABOR should not be construed in a way that would “hinder basic government functions or cripple the government’s ability to provide services.” Barber v. Ritter , 196 P.3d 238, 248 (Colo. 2008).
In Huber , the court ruled that a “ministerial, non-discretionary implementation of a tax law passed in the exercise of legislative authority” prior to TABOR’s effective date did not “require voter approval, even if such implementation occur[red] after [TABOR’s] effective date.” 264 P.3d at 891. The district and the district court relied heavily on this ruling, but the division disagreed that increasing the mill levy was a “ministerial, non-discretionary” implementation of a tax law because under section 37-45-122(2)(a)(III) of the Water Conservancy Act, the district was required to “(1) determine the amount of money it would need to raise through the mill levy and other sources of revenue; and (2) fix a rate of levy that, along with those other sources of revenue, would cover its expenses.” The district had discretion as to what revenue sources it would use to cover its expenses and how much money would be generated from these sources. The district had discretion to determine how much money would be generated by the mill levy, and thus, what the increase of the rate of levy would be. Therefore, the increase of the mill levy was a discretionary implementation of a tax law subject to voter approval under TABOR.
24COA29 Stalder v. Colorado Mesa University
March 28, 2024
Division VII, Opinion by Judge Tow; Judges Lipinsky and Grove concur.
Decision: Affirmed in part and reversed in part, and case remanded with directions.
Procedure: On appeal from Mesa County District Court, Judge Matthew D. Barrett.
Factual background and district court holding:
Plaintiff Stalder attended Defendant Colorado Mesa University (CMU) from 2019 through 2022. Stalder, a Marine veteran, has PTSD, anxiety, and depression. To help his mental health, he trained his dog, Ruger, as a service animal.
This action arose after Stalder and Ruger were barred from entering the CMU campus gym. Stalder asserted claims for violations of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12182, and the Colorado Anti-Discrimination Act (CADA), § 24-34-803, C.R.S. 2023.
The district court granted summary judgment for CMU on all claims, concluding that Stalder had not raised a genuine factual dispute about whether Ruger was a service dog. The court held that CMU was permitted to request Stalder’s medical records and proof of Ruger’s training before allowing them into the gym because federal courts have found that public entities can inquire further when they have “legitimate suspicions” about whether an animal is really a service animal.
Issue: Whether, under the ADA and CADA, a public entity can inquire further when they have “legitimate suspicions” about whether an animal is really a service animal.
The division disagreed with the district court, holding that the bar for raising a genuine factual dispute about whether an animal is really a service animal is “not a high one.” The “legitimate suspicions” doctrine directly conflicts with the ADA, as the ADA only allows public entities to ask if an animal is required because of a disability and what that animal is trained to do. The ADA does not permit public entities to ask for further documentation or personal medical records.
However, the division found that the district court was correct in finding summary judgment in favor of CMU on Stalder’s intentional infliction of emotional distress claim because Stalder’s allegations did not raise a genuine factual dispute as to whether CMU’s conduct was “extreme and outrageous as a matter of law.”
24COA30 Simpson v. City of Durango
March 28, 2024
Division VI, Opinion by Judge Lum; Judges Welling and Yun concur.
Decision: Affirmed and remanded with directions.
Procedure: On appeal from La Plata County District Court, Judge Suzanne Carlson.
Factual background and district court holding:
Each year, the City of Durango (the City) creates an Annual Comprehensive Financial Report. The report is presented to the City Council, which is made up of elected officials, which sends the report to the State Auditor. The City Finance Director, an appointed official, is responsible for preparing the final comprehensive report. The process usually involves the preparation of two or three draft versions before the report is submitted to the City Council.
Plaintiff Simpson made a public records request under the Colorado Open Records Act (CORA), §§ 24-72-200.1 to -205.5, C.R.S. 2023, for an unaudited draft version of the report. Simpson filed this action because the City declined to release any draft report, asserting that it was not a public record under CORA because it was “work product.” See § 24-72-202(6)(a)(II)(A), (b)(II).
The district court concluded that the draft financial report did not fit the definition of “work product” because it was not “communicated for the purpose of assisting . . . elected officials in reaching a decision within the scope of their authority” pursuant to section 24-72-202(6.5)(a).
Issue: Whether a draft financial report is exempt from the disclosure requirements of CORA because it is work product.
The division held that under these circumstances, a draft financial report is not exempt from the disclosure requirements of CORA. Specifically, the division held the draft report is not “[w]ork product prepared for elected officials” under section 24-72-202(6)(b)(II), because, based on the record in this case, elected officials do not have any control over the content of the final report and are not meaningfully involved in any decision involving the final report’s fate or any decision based on its content.
CORA defines “work product” as “all intra- or inter-agency advisory or deliberative materials assembled for the benefit of elected officials, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials in reaching a decision within the scope of their authority.” § 24-72-202(6.5)(a).
The division agreed with the district court that the draft was not “communicated for the purpose of assisting . . . elected officials in reaching a decision within the scope of their authority.” § 24-72-202(6.5)(a). The City Council does not have to approve or adopt the report before sending it to the State Auditor, so there is no decision to be made here.
23COA31 Colorado Department of State v. Unite for Colorado
March 28, 2024
Division II, Opinion by Judge Fox; Judges Schutz and Moultrie concur.
Decision: Reversed and remanded.
Procedure: On appeal from City and County of Denver District Court, Judge David Goldberg.
Factual background and district court holding:
This suit arose in 2022 after the Department of State (the Department) fined Unite for Colorado (Unite), a conservative political group, for failing to disclose its donors after spending more than $4 million on state ballot questions in 2020. The Elections Division of the Department determined that a major purpose of the group was to support or oppose certain ballot initiatives requiring it to disclose its donors under the Colorado Constitution. Colo. Const. art. XXVIII, § 2(10)(a); § 1-45-103(12)(a), C.R.S. 2023; § 1-45-108(1)(a)(I), C.R.S. 2023. Such groups are deemed “issue committees.” Id . Issue committees must also register as such with the Department shortly before contributing, receiving contributions, or making expenditures to support or oppose a ballot initiative. § 1-45- 108(3.3).
The district court concluded that Unite did not have a major purpose of supporting or opposing any ballot initiative in the 2020 election, so it did not have to disclose its donors. The district court ruled that courts should look to a group’s spending on a proposition-by-proposition basis. Following, the district court found the Department’s fine an arbitrary and capricious application of the law.
Issue: Whether a political group’s “major purpose” can be used to label it an issue committee.
The division disagreed with the district court, holding that the Department had the authority to fine Unite for failing to disclose its donors, reasoning that courts should not have to look at a group’s spending on a proposition-by-proposition basis, and should instead look to the major purpose of the group.
The division further noted that Unite is “precisely the type of organization that the people of Colorado envisioned” when they enacted the donor disclosure requirements. The division detailed the important public policy implications of the decision, writing that “Coloradans recognized their interest in preventing wealthy special interest groups from anonymously exercising undue influence on the political process. And the ‘major purpose’ analysis, as it existed in 2020, was designed to capture those interests.”
Therefore, a political group can be considered an issue committee based on the major purpose of the group, and courts do not need to look at a political group’s spending on a proposition-by-proposition basis.
