Mary Mullarkey
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Mary Mullarkey is the Chief Justice of the seven-member Colorado Supreme Court. She was appointed to the court as a justice by then-governor Roy Romer, a Democrat, in 1987. In 1998, she was selected by her fellow justices to serve as the court's presiding justice.
Legal Education and Experience
The Chief Justice graduated from St. Norbert College and from the Harvard Law School.
Prior to her appointment to the bench, Justice Mullarkey practiced law for 19 years in a variety of settings.
After graduating from Harvard Law in 1968, Mullarkey went to Washington, DC, working on federal water and power issues in the Interior Department. An unexpected opportunity came when President Nixon was elected. Nixon wanted to enforce a clause in federal contracts forbidding discrimination in employment. “I found myself working in employment and civil rights. It was exactly what I wanted to do.”[1]
From 1975 to 1982, she specialized in appellate practice, first while heading the Appellate Section in the Colorado Attorney General’s Office and later while serving as Colorado’s Solicitor General. She has also served as the legal adviser to Governor Richard D. Lamm, held legal positions with the Equal Employment Opportunity Commission and the Department of the Interior, and engaged in the private practice of law.
Attending Harvard as a Woman
While walking around campus at the beginning of her first year at Harvard, Justice Mullarkey met a young man who turned out to be a classmate. After introducing themselves, his first words were: "What are you doing here at Harvard Law School taking the place of some guy who is dying in Vietnam?"[2]
She writes,"I was so surprised by his attack that I have no idea what I said in response. He was referring, of course, to the student exemption to the ongoing military draft in an increasingly unpopular war. The perfect response would have been to turn the question back on him and ask him why he had not enlisted to save someone else from that terrible fate. I have since learned that variations of this question were routinely put to female students at HLS, reflecting a widespread skepticism among faculty and male students about the ability of women to practice law."
As Chief Justice
Her current term ends January, 2011.[3] As Chief Justice, her salary is $125,656.
- Judges are appointed by the Governor from a list of three names submitted by the Nominating Commission. After a two-year provisional term, and at the conclusion of each successive term, the voters are asked "Shall Justice (Judge) (name) be retained in office?. A majority of yes votes is needed for retention.
Awards and Associations
She has received several honors and awards including most recently the 2002 Mary Lathrop award from the Colorado Women’s Bar Association and the 2003 Judicial Excellence award from the Denver Bar Association.
Chief Justice Mullarkey is Co-Chairman of The Permanent Committee on Gender & Fairness of the Colorado Supreme Court along with James Benway, Court Administrator of the Colorado Judicial Branch.[4]
Political Affiliation
Mullarkey is considered to be a Democrat, although her official party affiliation is "nonpartisan."
Because Colorado implemented merit selection of judges over 40 years ago, she has no campaign contributions.
On Merit Selection
In November 1966, Colorado voters adopted an amendment to the state constitution changing how judges are selected. As a result, the state’s judges are selected through merit selection. May 1, 2006, through April 30, 2007, Colorado will celebrate the 40-year anniversary of merit selection of judges in Colorado.
“Forty years ago, Colorado took a great step forward in building a better state,” says Chief Justice Mary Mullarkey. “Voters abandoned the partisan political election of judges that had prevailed since statehood, and adopted the merit selection of judges.[5]
“It was a bold and visionary move,” continues Mullarkey. “No longer would judges be subject to political whims, from that time on judges have been held accountable to the constitution and laws.”
On Redistricting
Colorado's new congressional district map may be drawn by judges unless the Legislature bridges the wide gulf between Republicans and Democrats in January.[6] Legislators will have less than two months after convening in January to deliver a new congressional map that the governor is willing to sign. Republicans want it to happen, thus keeping the state case from reaching the Colorado Supreme Court on appeal. They note that Chief Justice Mary Mullarkey is a Democrat and, like five of her six fellow justices on the court, an appointee of former Democratic Governor Roy Romer.
"I am very concerned about the chief justice's partisanship with her four appointments on legislative redistricting. She put four partisan Democrats on the commission," Governor Bill Owens said. "If that is any indication, we have every reason to be concerned about decisions the court might make in the future." Mullarkey was unavailable to respond to questions concerning the issue.
Illegal Immigration: Initiative #55
On December 31, 2003, the "Defend Colorado Now" initiative was filed by Congressman Tom Tancredo (R) and carried forward by Dr. Bill Heron. In 2004, the initiative was challenged by the open borders lobby and taken to the Colorado Supreme Court, who approved the initiative's wording; the entire process, though, stalled the initiative's chance of making the 2004 ballot.
The proposed initiative would have prohibited illegal immigrants in Colorado from receiving all taxpayer-funded public services except those required by the federal government - K-12 education, emergency medical care and assistance in the event of a public safety emergency.
After Colorado House Bill 1271 was defeated (the bill was supposed to implement the initiative's intent since only tax-related initiatives are allowed in odd-numbered years), DCN had the initiative re-affirmed by the Colorado Title Setting Board.
In late January, 2006 the re-filed initiative was challenged in front of the Colorado Supreme Court. Despite the Court's speedy rulings on other initiatives for the year (and their previous approval of the initiative's wording), the Court delayed issuing a ruling on the DCN initiative until June 12.
On June 12, 2006 the Supreme Court issued a (4-2) ruling alleging that the initiative was not "single-subject" and therefore could not be on the upcoming ballot. Two weeks later, the Court denied the DCN's petition for a re-hearing.[7] Justice Martinez wrote the majority decision, with Justices Mullarkey, Hobbs, and Bender concurring; Justices Coats and Rice dissented. Justice Eid recused herself.
Justice Martinez wrote that the measure asks voters to approve two subjects: decreasing taxpayer funds for medical and social services, and restricting "administrative services" such as registering a vehicle or filing property deeds with the county recorder.[8]
Court and Legislature at odds over Initiative
On June 29, 2006, Governor Bill Owens called a special legislative session to address the Supreme Court's two-time denial of Initiative #55. The session convened on July 6, 2006. During day one of the session, five Democrats broke rank and sided with the initiative's largely Republican-based support. The coalition voted to allow Coloradans to vote on the measure that was intended to limit services to illegal immigrants.
Critics of the "special session" noted that Governor Owens, then in the eighth year of his Gubernatorial service, had done little else to address the issue of illegal immigration.[9]
Electronic Filing Offered to Those in Need
With electronic filing of cases now widely available to attorneys in many states, Colorado is poised to become the first state to offer free e-filing to low-income litigants, thanks to an unprecedented collaboration between the federal government, the state’s judiciary, the statewide legal services program, and a major U.S. corporation.[10]
Colorado Chief Justice Mary Mullarkey was joined by Congresswoman Diana DeGette (D-CO) and fellow state supreme court Justice Gregory J. Hobbs, Jr. to discuss their delight that LSC-funded Colorado Legal Services (CLS) has been awarded $165,000 in LSC grants to pioneer e-filing for pro se (self-represented) litigants. CLS is partnering with LexisNexis Courtlink and the Colorado State Judicial Branch to offer free paperless e-filing to the poor.
2007 State of the Judiciary Address
On the Issues
On Contract Enforcement
Justice Mullarkey concurred in the majority opinion, authored by Justice Martinez, which, in a 5-2 decision and over the vigorous dissents of Justices Eid, and Rice, found that a teacher whose contract was not renewed, but who did not recive timely notice of this failure to renew, (1) was entitled to an entire year's salary; (2) was under no obligation to attempt to mitigate her damages by finding another job; and (3) was entitled to a year's salary even though he immediately found an equal-paying job.
The dissenting opinion, authored by Justice Allison Eid, objected to the finding that the teacher was entitled to an entire year of back pay where he had not lost a year's salary, since he immediately found another job. The dissent noted that Colorado contracts law is "clear that breach of employment contract damages are to be offset by earnings from alternative employment," and that since this was an employment contract, the court should apply common law contract principles, such as the duty to mitigate damages, and reduce the plaintiff's damages award to the extent that lost earnings were avoided.
* ON OPEN MEETINGS AND GOVERNMENT TRANSPARENCY:"All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times. * * * Important policy decisions cannot be made informally * * *." Consequently, the decision regarding whether to renew the teacher's contract should have been made in public.
*ON PROVIDING NOTICE TO TEACHERS: "[W]hen the decision to terminate a probationary teacher is made at an open meeting, a school board must also provide timely, written notice of termination to the teacher. Failure to provide timely written notice results in the automatic reemployment of the probationary teacher."
*ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "Mitigation is unnecessary in violations of the statute that governs probationary teacher employment situations * * * the statutory requirement of an additional year of employment prevails over the common law preference for mitigation."
*ON DEFERENCE TO THE LEGISLATURE: "For over forty years, some variation of the probationary teacher renewal statute has been state law. During that time, it has never included a mitigation provision for a wrongfully terminated teacher. That is not to say that the General Assembly has lacked the opportunity to include such a provision. Since the statute's adoption in 1963, the General Assembly has amended the specific provision in question over a dozen times, including completely repealing and reenacting the statute in 1990. * * * [W]e believe it would usurp legislative power for us to change our interpretation to require mitigation simply because we might see the statute differently if we were writing on a clean slate today."
*ON COMMON LAW CONTRACT PRINCIPLES: "That the teacher successfully finds alternative work is immaterial to the fact that the teacher is deemed employed by the school district and entitled to compensation. * * * [W]e find persuasive policy reasons for not requiring mitigation by a probationary teacher [whose contract is not renewed]. If, as here, a school board provided inadequate notice of termination beyond the disputed year and the teacher found alternative employment, the school board could wrongfully-terminate a teacher without repercussion. The statute protects the teacher from a board that fails to give timely notification of termination. It is inconsistent with the purpose of [the statute] that a teacher be deemed employed but neither allowed to return to work nor appropriately compensated for the time employed."
* ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "When [a] renewed contract is subsequently breached by the district, as occurred in this case, the probationary teacher is entitled to ordinary contract remedies. These include * * * contract damages. Because mitigation is a longstanding principle of contract damages-a principle that the majority fails to employ in this case-I respectfully dissent from Part II.C.2 of the opinion."
* ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "The majority's mistake, in my view, is to omit an important principle of common law contract damages from that remedy-that is, mitigation. Colorado law is clear that breach of employment contract damages are to be offset by earnings from alternative employment. Here, the majority awards a contract damages remedy that mistakenly ignores a longstanding component of the common law."
*ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES AND PUBLIC POLICY: "The majority rejects mitigation on a third ground: public policy. It concludes that mitigation would allow school districts to give insufficient notice “without repercussion” and leave probationary teachers not “appropriately compensated.” In my view, mitigation would lead to neither of these results. The goal of contract damages is to place the plaintiff in the same position he or she would have been in had the breach not occurred-not one that is better or worse. As applied to this case, [the terminated teacher] got paid more in his alternative employment than what he would have made at Hanover Junior-Senior High School * * *. The appropriate damages remedy for the breach of Barbour's renewed contract would be the difference between what [the teacher] would have made had he worked at Hanover for a year (including his grant money), and what he did in fact make at his alternative employment (less his increased travel costs)."
On Criminal Justice
In a 4-3 decision, Justice Mullarkey concurred in the majority opinion, which concluded, over the dissents of Justices Eid, Coats, and Rice that a police officer's search of the defendant and his vehicle, which resulted in the discovery of marijuana and cocaine, was unconstitutional, because the officer's stop was predicated only on the belief that the tree-shaped air freshener hanging from the defendant's-driver's rear-view mirror unlawfully obstructed the defendant-driver's vision.
* ON SEARCH AND SEIZURE:The officer followed the defendant for a dozen blocks, and, observing no traffic violations, finally decided to pull the defendant over for having a tree-shaped air freshener hanging from his rear-view mirror-- the only "possible ground" for stopping the defendant, because it "could have" obstructed the driver's vision. "However, no showing was made that [the officer] believed it obstructed the driver's vision at the time of the stop." The officer did not verify "whether the air freshener actually obstructed the driver's vision." The defendant testified that "the air freshener in no way obstructed his vision."
* ON SEARCH AND SEIZURE:"To stop a vehicle based on [driving with obstructed vision], there must be more than a possibility that the driver's vision is obstructed. An officer must reasonably believe that the statute is being violated or is about to be violated, and he must be able to communicate this reasonable belief to the court. Here, Officer Gray testified that he pulled over Arias because the air freshener “could have” obstructed the driver's vision through the windshield. The trial court appeared to conclude from this testimony that [the officer] believed the air freshener hanging from the rear-view mirror was in violation of the statute without regard to whether the driver's vision through the windshield was actually obstructed. Because [the officer] did not testify with any specificity how the air freshener was displayed in the windshield or how the angle of vision may have actually been obstructed, he did not persuade the court that his belief that the air freshener obstructed the driver's vision was reasonable."
Justice Eid authored the dissenting opinion, in which Justices Coats and Rice joined, protesting that because the trial court had concerns abut the vagueness of the obstructed view statute, it was not adequately able to make a factual finding as to whether the air freshener actually obstructed the defendant's view of the road. Thus these three justices would have the case remanded to the trial court for further findings.
- Justice Mullarkey concurred with the majority opinion of the Court, which concluded, over the dissent of Justice Coats, that a 13-year-old accused of burglary could not be tried or sentenced as an adult, even though he had turned 14 since the time of the crime, where he had committed the crime when 13. In his dissent, Justice Coats indicated his belief that any lack of jurisdiction over the defendant was waived when the defendant failed to object to being sentenced as an adult, and instead pleaded guilty.
- In a 4-3 decision, Justice Mullarkey concurred in the majority opinion, written by Justice Martinez, which concluded, over the vigorous dissents of Justices Coats, Rice, and Allison Eid, that the defendant's confession to sexual assault should not be admitted as evidence against him because the defendant indicated that he had a desire to speak with an attorney prior to making the confession. In his dissent, Justice Coats indicated that "rather than an isolated example of misapplication, the majority's application in this case seems to me to be typical of * * * its hostility or antipathy toward the use of confessions as a tool to solve crimes."
- In a 5-2 decision, Justice Mullarkey concurred in the majority opinion, written by Justice Martinez, which concluded, over the vigorous dissents of Justices Coats and Eid, that, in a first-degree murder case, the defendant's confession to stabbing the victim was not made voluntarily, and therefore was not admissible against him at trial, where, even though the defendant waived her Miranda rights, the defendant's confession was made under "psychological coercion" and "emotional vulnerability" because the questioning officers informed the defendant that the victim had just died from the stabbing wounds; and that the "persistent questioning of the defendant after her emotional breakdown was psychologically coercive." The dissent shot back, noting that the majority's decision would "substantially impact the law of confessions," that "it is difficult for one who is told he is free to refuse to answer questions to complain that his answers were the product of intimidation or psychological coercion," and that "the defendant was not only willing to answer but consistently sought to excuse her own conduct * * *."
In this parolee disenfranchisement case, plaintiff Danielson brought suit against defendant in her capacity as Colorado Secretary of State alleging that a Colorado statute stating that no person "serving a sentence of parole shall be eligible to register to vote or vote in any election" was in conflict with the Colorado Constitution, Article VII, section 10.
Article VII, Section 10 of the Colorado Constitution states: "No person while confined in any public prison shall be entitled to vote; but every such person who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full term of imprisonment, shall without further action, be invested with all the rights of citizenship, except as otherwise provided in this constitution."[11]
Justice Hobbs wrote the opinion of the court, which ruled that the statute wasn't in conflict with the state Constitution and affirmed the trial court's dismissal, stating:"We hold that the General Assembly did not violate article VII, section 10 of the Colorado Constitution by enacting a law that prevents a person who has been convicted of a felony and is serving a sentence of parole from voting or registering to vote. A person who is serving a sentence of parole has not served his or her full term of imprisonment within the meaning of this constitutional provision."
On Elections Law
Justice Mullarkey concurred with the majority opinion, which, in a 4-3 decision against the vigorous dissents of Justices Eid, Coats, and Rice struck down a voter-proposed ballot measure that would have created an environmental conservation agency with a mission of protecting land, wildlife, water, and public resources by resolving conflicts between "economic interests" and "public ownership and values" in favor of the latter. The Majority held that the inclusion of the mission and the creation of the agency constituted two separate subjects, and thus that the initiative violated [Colorado's single subject rule].
*ON COLORADO'S SINGLE SUBJECT RULE:"This initiative improperly pair[s] the creation of a new environmental department with the separate and discrete subject of the creation of a public trust standard."
* COLORADO'S SINGLE SUBJECT RULE:"In this initiative, the public trust standard subject is paired with the subject of reorganizing existing natural resource and environmental protection divisions, programs, boards, and commissions, and these are separate and discrete subjects that are not dependent upon or necessarily connected with each other.”
*ON WHETHER TO TRUST THE WISDOM OF THE VOTERS: "An initiative that joins multiple subjects poses the danger of voter surprise and fraud occasioned by the inadvertent passage of a surreptitious provision coiled up in the folds of a complex initiative. We must examine sufficiently an initiative's central theme to determine whether it contains hidden purposes under a broad theme. The initiative before us today is complex and subtly worded. * * * Despite the statement of the initiative's proponents that the initiative simply creates a new environmental department with a conservation stewardship mission, a plain reading of the initiative reveals that it superimposes onto existing constitutional and statutory provisions the duty to resolve every conflict between “economic interests” and “public ownerships and public values” in favor of “public ownerships and public values.”
Justice Eid authored the dissenting opinion, in which Justices Coats and Rice joined, protesting that "...[a]ccording to the majority, the initiative's proponents can create a new department, but they cannot-without running afoul of the single subject requirement-give that department a mission. * * * [T]he new department's 'conservation stewardship' mission is sufficiently connected to the creation of the department itself.'
* ON COLORADO'S SINGLE SUBJECT RULE:"In my view, [the initiative] passes muster under the single subject requirement because it contains a single, easily identifiable subject- namely the creation of a new department of environmental conservation."
* ON WHETHER TO TRUST THE WISDOM OF THE VOTERS:"We have repeatedly held that it is not our role at this stage to construe the proposed initiative. This is a matter “for judicial determination in a proper case should the voters approve the initiative.” Nevertheless, the majority strays into construction in this case by giving the initiative's 'conflict' language an extraordinarily broad interpretation-an interpretation that goes significantly beyond the plain language of the initiative itself.”
* ON WHETHER TO TRUST THE WISDOM OF THE VOTERS:"These 'subjects' proposed by the majority are simply straw men, however, as the initiative's proponents do not suggest any of them. Instead, the initiative is focused on a much narrower theme-that is, the creation of the new department of environmental conservation. Contrary to the majority's suggestion, it would come as no surprise to voters that a new department of environmental conservation would have 'conservation stewardship' as its priority."
* ON ADHERENCE TO PRIOR PRECEDENCE / DEFERENCE TO VOTERS:"In its application of the single subject test today, the majority significantly increases the degree of scrutiny to which we subject proposed voter initiatives, [since] traditionally we have stated that there must be a 'necessary or proper' connection between the component parts of a proposed initiative. * * * Under the [old] standard, the single subject requirement was not violated unless an initiative has 'at least two distinct and separate purposes which are not dependent upon or connected with each other.' * * * In my view, 'conservation stewardship' is sufficiently connected with the creation of the new department to meet the single subject requirement as it has been traditionally defined in our case-law."
*ON BURDENING CITIZEN-DRIVEN INITIATIVE AND REFERENDUM EFFORTS: "The majority's approach requires an initiative's proponents to draw their proposal as narrowly as possible, leaving out components that are sufficiently connected with, but not absolutely necessary to, carrying out the initiative's central theme. * * * Taking our cue from the legislature, we have recognized that The single-subject requirement must be liberally construed. * * * The majority's approach flies in the face of this liberal construction by imposing a new level of heightened scrutiny under which all but the narrowest of proposed initiatives will fail. * * * Today's decision effectively requires the initiative's proponents to accomplish a single goal by proposing two separate initiatives-one to consolidate existing boards and commissions into a new department, and a second to give that department a mission to promote conservation stewardship."
*ON WHETHER TO TRUST THE WISDOM OF THE VOTERS: "The proposed initiative might be a good idea or a bad idea; we must leave that decision to the voters."
In a bitterly disputed 4-2 decision (Justice Allison Eid did not participate), Justice Mullarkey concurred in the majority opinion, written by Justice Alex Martinez, who along with Justices Bender and Hobbs, struck down a citizen-sponsored ballot measure that, if passed, would have prohibited Colorado from providing non-emergency government services to illegal immigrants. The Majority characterized the measure as violative of the Colorado's single subject rule because it contained "at least two subjects," that it viewed as "unrelated:" "decreasing taxpayer expenditures" and "restricting unrelated administrative services."
- In a vociferous dissent, Coats and Rice expressed outrage, noting that "once again the majority finds a popular-initiated proposal for amending the state constitution unsuitable for consideration by the electorate," even though the Initiative "contains a single mandate," of restricting government services to illegal immigrants, and further noting a "lack of consistency in applying the single-subject requirement" that "understands the term 'subject' to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will."
* ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"We agree that Initiative # 55 contains multiple subjects connected only by the broad theme of restricting non-emergency services. The concept of a single subject at first glance appears straightforward. However, an initiative may be offered as a single subject by stating the subject in broad terms. If an initiative states vague terms, then it may appear to present a single subject. But when the details necessary to understand the subject are considered, the initiative may involve separate subjects."
* ON HOW REDUCING GOVERNMENT SPENDING IS NOT RELATED TO REDUCING GOVERNMENT SERVICES:"Turning to the Initiative itself, we determine that its claimed subject, restricting non-emergency services, is broad and intended to affect all government operations. Against this backdrop, we explore the purposes effected by restricting all non-emergency services not mandated by federal law and identify two distinct, unrelated purposes: reducing taxpayer expenditures by restricting the delivery of benefits in the nature of medical and social services to individuals lawfully present in Colorado and restricting other largely administrative services that do not primarily confer benefits to individuals. Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme."
* ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE: "[A]n initiative grouping distinct purposes under a broad theme will not satisfy the single subject requirement. That is, although an initiative may contain several purposes, they must be interrelated."
* ON THE LEVEL OF SPECIFICITY REQUIRED FOR A PETITION TO ESCAPE THE COURT'S SCRUTINY: "the Initiative does not thereafter define “non-emergency” and “services,” categorize the types of services to be restricted, or set forth the purpose or purposes of restricting non-emergency services. The only stated limit on the scope of this theme pertains to federal law."
* ON THE SOCIETAL EFFECTS OF INHIBITING ILLEGAL IMMIGRANT'S ACCESS TO BASIC SERVICES: "[A]lthough the Initiative restricts the target group's access to administrative recording services, its effect is broader. In addition to affecting the target group, the Initiative also affects citizens by impairing the functions of regulatory, licensing and dispute-resolution services. For example, it would affect anyone transacting real estate business and could complicate the transfer of real property from unlawfully present to lawfully present individuals and the recording of lien interests. * * * conclude these two purposes-terminating services benefiting the welfare of individuals not lawfully present in Colorado and denying access to unrelated administrative services that facilitate organization and regulation-are incongruous. The theme of restricting non-emergency government services is too broad and general to make these purposes part of the same subject. The prohibition against multiple subjects serves to defeat voter surprise by prohibiting proponents from hiding effects in the body of an initiative. It also discourages placing voters in the position of voting for some matter they do not support to enact that which they do support. Initiative # 55 presents the possibility of both prohibited practices."
* ON WHY FAILING TO SPECIFY WHICH GOVERNMENT SERVICES WILL BE REVOKED IS UNSATISFACTORY: "the Initiative's failure to specify any definitions, services, effects, or purposes makes it impossible for a voter to be informed as to the consequences of his or her vote. This facial vagueness not only complicates this court's attempt to understand the Initiative's subjects, but results in items being concealed within a complex proposal as prohibited by the single subject rule."
*ON THE RELATIONSHIP BETWEEN DECREASING SERVICES AND REDUCING SPENDING: "[T]here no doubt exists a diversity of approaches and attitudes regarding the presence of the individuals targeted under this Initiative. Some voters may indeed wish to both reduce taxpayer expenditures for services benefiting individuals, such as medical and social services, and also restrict unrelated administrative services such as recording services that may inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict services while only wishing to reduce taxpayer expenditures for medical and social services. The common means of restricting non-emergency services insufficiently connects the subjects of reducing taxpayer expenditures and prohibiting the targeted group from participating in administrative services. Thus, the purpose of reducing taxpayer expenditures by eliminating expenditures on behalf of individual welfare for the targeted group is not dependent on and clearly related to the purpose of restricting access to administrative services."
*ON WHETHER THE PETITION CONTAINED A SINGLE SUBJECT: "Unlike lengthy, detailed, or convoluted regulatory measures, easily capable of hiding disparate subjects or combining them solely to increase voting power, the substantive provision of Initiative # 55 contains a single mandate, clearly expressed in a single, concise sentence. Consistent with federal law, government is required to restrict non-emergency services to those whose presence in this country is lawful. The majority, however, is able to characterize even this straightforward provision as containing multiple subjects, by parsing the motivation or objective of the proponents and treating each of its component parts as a separate 'subject.'"
* ON THE MAJORITY'S BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE: "[T]he majority unself-consciously equates the constitutional requirement that each initiative be limited to a single subject with a requirement that each initiative be motivated by a single objective or purpose in the minds of its proponents. By finding (through examination of the Defend Colorado Now website) that the proponents consider it fundamentally unfair for illegal residency in this country to be facilitated by access to taxpayer-provided services and, moreover, that the services to be denied persons here illegally include not only non-emergency police, fire, and medical services but non-emergency administrative services as well, the majority concludes that the proposed measure contains at least two distinct subjects. Apparently inferring that restricting non-emergency police, fire, and medical services adversely affects the welfare of those to whom the restriction applies while restricting other kinds of non-emergency services does not, it characterizes these two purposes, or “subjects,” as “decreasing taxpayer expenditures” by 'terminating services benefiting the welfare of individuals” and “restricting unrelated administrative services."
* ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD:"[T]he majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it's clear and expressed ultimate objective. The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing. And according to the majority's logic, each such 'purpose,' apparently constitutes a 'subject' of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate."
* ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD:"[S]urely any provision expressed with sufficient generality to be appropriate for inclusion in a constitution will necessarily have a potential for, and be intended to have, multiple effects. Such a construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process. Nothing in the language or history of the single-subject requirement for popular initiatives or, for that matter, the identical limitation on statutes enacted by the general assembly, remotely suggests that in addition to being limited to a single subject, a proposal can also have but one, identifiable impact or effect; and any such requirement, if applied uniformly, would preclude all but the most trivial popularly-initiated proposals."
*ON TRUSTING THE WISDOM OF THE VOTERS OVER THE COURTS:"The right of the initiative appears to have been reserved to the voters, by our constitution, precisely for the purpose of providing them with a means of overriding the policy choices of their elected representatives (as well as the constitutional interpretations of the judiciary) and a means of prescribing measures they expect will more effectively accomplish their goals. There can be little doubt that certain formalities will always be indispensable to ensure that the will of the voters is actually expressed in their vote; and regardless of the wishes of the electorate at any point in time, the law of this jurisdiction will necessarily remain subject to the supremacy of the federal constitution. I do not believe, however, that the single-subject requirement can fairly be construed to assign to this court the role of screening from the voters any measure the full impact of which it considers them unable to appreciate; nor do I believe it is possible for judicial officers, however conscientious, to apply a standard as amorphous as the majority obviously considers the single-subject requirement to be, without conforming it to their own policy preferences."
In a voter-driven ballot measure that, if successful, would have required "English Language Education in Public Schools," Justice Hobbs writing for the majority, recognized the additional, unstated purposes present in the amendment of constraining school boards' traditional power to require bilingual education in public schools. It also found, however, that this effect was not a subject separate from the initiative's central theme of requiring English language instruction. Rather, the purpose of constraining school boards' traditional powers was “a logical incident of adopting structured English immersion.” Therefore, the majority opinion, via Justice Hobbs, found the initiative did not violate the single subject requirement.
In considering whether the voters should be able to consider a ballot measure that would have added a sunset provision, requiring all tax increases to automatically expire after 10 years, Justice Mullarkey concurred in the majority opinion, written by Rice, which held that voters should not be able to consider the measure because "while either or both tax or debt limitations may be attractive, the voters would also be limiting * * * relief from [TABOR's] spending caps."
In an animated dissent, Justice Coats expressed outrage, noting that "once again the majority deprives the voters of an opportunity to express themselves on a proposal to limit public fundraising," and further arguing that there was "no principled basis" for treating limitations on "taxation" and "public indebtedness" as "separate subjects."
*ON THE MAJORITY OF THE COURT'S BIAS AGAINST THE CONSERVATIVE ECONOMIC AGENDA: "Even a cursory review of this court's ballot title jurisprudence reveals an unmistakable lack of uniformity in our treatment of the single-subject requirement. Surely it cannot go unnoticed that popularly initiated measures affecting public funding have been subjected to far more exacting, and seemingly arbitrary, line-drawing than has been applied to most other initiatives."
*ON WHY LIMITING TAXES AND PUBLIC DEBT ARE RELATED TO THE SAME PURPOSE: "The proposed time limitation on the effective life of public fundraising measures applies evenhandedly to all such devices governed by TABOR, which merely amount to different methods of raising public funds for expenditure. Whether they involve taxation or incurring public indebtedness, the techniques of public fundraising covered by the proposal are not sufficiently distinguishable in the public mind to suggest either an attempt to combine disparate voting blocks in order to secure passage or to surreptitiously include certain fundraising techniques that voters would be surprised to find in combination with the others. Quite the contrary, in light of their common purpose, there is little or no reason to believe that voters who would be inclined to favor a time limitation on exceptions to TABOR would be so inclined only if it included exceptions involving either taxation or debt creation, but not both."
*ON WHETHER THE PETITION CONTAINED A SINGLE SUBJECT:"The majority makes no attempt to relate its finding of multiple subjects to these purposes, and instead simply concludes that the proposal at issue in this case contains subjects that are not sufficiently “dependent upon” or “connected with” each other because a similar distinction had been made with regard to other public funding proposals in the past. Maj. op. at 239. Whatever the merits of those prior holdings, given the complexity and potential for misunderstanding of the individual proposals in those cases, it is clear (at least to me) that neither danger meaningfully threatens the current proposal. The proposed initiative in this case consists of two short paragraphs of two sentences each, and it is closely paraphrased in a single sentence, with the addition of a cross-reference to the TABOR amendment, in the title fixed by the board. Both the proposed initiative and the title expressly and clearly state that the proposal would limit the effective life of any ballot issue increasing either taxes or public indebtedness."
On Employer and Employee Rights
Justice Mullarkey concurred with the majority opinion, authored by Justice Martinez, which, in a 5-2 decision and over the vigorous dissents of Justices Eid, and Rice, found that a teacher whose contract was not renewed, but who did not receive timely notice of this failure to renew, (1) was entitled to an entire year's salary; (2) was under no obligation to attempt to mitigate his damages by finding another job; and (3) was entitled to a year's salary even though he immediately found an equal-paying job.
The dissenting opinion, authored by Justice Allison Eid, objected to the finding that the teacher was entitled to an entire year of back pay where he had not lost a year's salary, since he immediately found another job. The dissent noted that Colorado contracts law is "clear that breach of employment contract damages are to be offset by earnings from alternative employment," and that since this was an employment contract, the court should apply common law contract principles, such as the duty to mitigate damages, and reduce the plaintiff's damages award to the extent that lost earnings were avoided.
* ON OPEN MEETINGS AND GOVERNMENT TRANSPARENCY: "All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times. * * * Important policy decisions cannot be made informally * * *." Consequently, the decision regarding whether to renew the teacher's contract should have been made in public.
* ON PROVIDING NOTICE TO TEACHERS:''"[W]hen the decision to terminate a probationary teacher is made at an open meeting, a school board must also provide timely, written notice of termination to the teacher. Failure to provide timely written notice results in the automatic reemployment of the probationary teacher.”
* ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES:''"Mitigation is unnecessary in violations of the statute that governs probationary teacher employment situations * * * the statutory requirement of an additional year of employment prevails over the common law preference for mitigation."'
* ON DEFERENCE TO THE LEGISLATURE:''"For over forty years, some variation of the probationary teacher renewal statute has been state law. During that time, it has never included a mitigation provision for a wrongfully terminated teacher. That is not to say that the General Assembly has lacked the opportunity to include such a provision. Since the statute's adoption in 1963, the General Assembly has amended the specific provision in question over a dozen times, including completely repealing and reenacting the statute in 1990. * * * [W]e believe it would usurp legislative power for us to change our interpretation to require mitigation simply because we might see the statute differently if we were writing on a clean slate today."
*ON COMMON LAW CONTRACT PRINCIPLES: "That the teacher successfully finds alternative work is immaterial to the fact that the teacher is deemed employed by the school district and entitled to compensation. * * * [W]e find persuasive policy reasons for not requiring mitigation by a probationary teacher [whose contract is not renewed]. If, as here, a school board provided inadequate notice of termination beyond the disputed year and the teacher found alternative employment, the school board could wrongfully-terminate a teacher without repercussion. The statute protects the teacher from a board that fails to give timely notification of termination. It is inconsistent with the purpose of [the statute] that a teacher be deemed employed but neither allowed to return to work nor appropriately compensated for the time employed."
* ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "When [a] renewed contract is subsequently breached by the district, as occurred in this case, the probationary teacher is entitled to ordinary contract remedies. These include * * * contract damages. Because mitigation is a longstanding principle of contract damages-a principle that the majority fails to employ in this case-I respectfully dissent from Part II.C.2 of the opinion."
*ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "The majority's mistake, in my view, is to omit an important principle of common law contract damages from that remedy-that is, mitigation. Colorado law is clear that breach of employment contract damages are to be offset by earnings from alternative employment. Here, the majority awards a contract damages remedy that mistakenly ignores a longstanding component of the common law."
* ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES AND PUBLIC POLICY: "The majority rejects mitigation on a third ground: public policy. It concludes that mitigation would allow school districts to give insufficient notice “without repercussion” and leave probationary teachers not “appropriately compensated.” In my view, mitigation would lead to neither of these results. The goal of contract damages is to place the plaintiff in the same position he or she would have been in had the breach not occurred-not one that is better or worse. As applied to this case, [the terminated teacher] got paid more in his alternative employment than what he would have made at Hanover Junior-Senior High School * * *. The appropriate damages remedy for the breach of Barbour's renewed contract would be the difference between what [the teacher] would have made had he worked at Hanover for a year (including his grant money), and what he did in fact make at his alternative employment (less his increased travel costs)."
On Illegal Immigration
In a bitterly disputed 4-2 decision (Justice Allison Eid did not participate), Justice Mullarkey concurred in the majority opinion, written by Justice Alex J. Martinez, who along with Justices Bender and Hobbs, struck down a citizen-sponsored ballot measure that, if passed, would have prohibited Colorado from providing non-emergency government services to illegal immigrants. The Majority characterized the measure as violative of the Colorado's single subject rule because it contained "at least two subjects," that it viewed as "unrelated:" "decreasing taxpayer expenditures" and "restricting unrelated administrative services."
In a vociferous dissent, Coats and Rice expressed outrage, noting that "once again the majority finds a popular-initiated proposal for amending the state constitution unsuitable for consideration by the electorate," even though the Initiative "contains a single mandate," of restricting government services to illegal immigrants, and further noting a "lack of consistency in applying the single-subject requirement" that "understands the term 'subject' to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will."
*ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"We agree that Initiative # 55 contains multiple subjects connected only by the broad theme of restricting non-emergency services. The concept of a single subject at first glance appears straightforward. However, an initiative may be offered as a single subject by stating the subject in broad terms. If an initiative states vague terms, then it may appear to present a single subject. But when the details necessary to understand the subject are considered, the initiative may involve separate subjects."
* ON HOW REDUCING GOVERNMENT SPENDING IS NOT RELATED TO REDUCING GOVERNMENT SERVICES:"Turning to the Initiative itself, we determine that its claimed subject, restricting non-emergency services, is broad and intended to affect all government operations. Against this backdrop, we explore the purposes effected by restricting all non-emergency services not mandated by federal law and identify two distinct, unrelated purposes: reducing taxpayer expenditures by restricting the delivery of benefits in the nature of medical and social services to individuals lawfully present in Colorado and restricting other largely administrative services that do not primarily confer benefits to individuals. Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme."
* ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"[A]n initiative grouping distinct purposes under a broad theme will not satisfy the single subject requirement. That is, although an initiative may contain several purposes, they must be interrelated."
* ON THE LEVEL OF SPECIFICITY REQUIRED FOR A PETITION TO ESCAPE THE COURT'S SCRUTINY: "the Initiative does not thereafter define “non-emergency” and “services,” categorize the types of services to be restricted, or set forth the purpose or purposes of restricting non-emergency services. The only stated limit on the scope of this theme pertains to federal law."
* ON THE SOCIETAL EFFECTS OF INHIBITING ILLEGAL IMMIGRANT'S ACCESS TO BASIC SERVICES:"[A]lthough the Initiative restricts the target group's access to administrative recording services, its effect is broader. In addition to affecting the target group, the Initiative also affects citizens by impairing the functions of regulatory, licensing and dispute-resolution services. For example, it would affect anyone transacting real estate business and could complicate the transfer of real property from unlawfully present to lawfully present individuals and the recording of lien interests. * * * conclude these two purposes-terminating services benefiting the welfare of individuals not lawfully present in Colorado and denying access to unrelated administrative services that facilitate organization and regulation-are incongruous. The theme of restricting non-emergency government services is too broad and general to make these purposes part of the same subject. The prohibition against multiple subjects serves to defeat voter surprise by prohibiting proponents from hiding effects in the body of an initiative. It also discourages placing voters in the position of voting for some matter they do not support to enact that which they do support. Initiative # 55 presents the possibility of both prohibited practices."
* ON WHY FAILING TO SPECIFY WHICH GOVERNMENT SERVICES WILL BE REVOKED IS UNSATISFACTORY:"The Initiative's failure to specify any definitions, services, effects, or purposes makes it impossible for a voter to be informed as to the consequences of his or her vote. This facial vagueness not only complicates this court's attempt to understand the Initiative's subjects, but results in items being concealed within a complex proposal as prohibited by the single subject rule."
*ON THE RELATIONSHIP BETWEEN DECREASING SERVICES AND REDUCING SPENDING: "[T]here no doubt exists a diversity of approaches and attitudes regarding the presence of the individuals targeted under this Initiative. Some voters may indeed wish to both reduce taxpayer expenditures for services benefiting individuals, such as medical and social services, and also restrict unrelated administrative services such as recording services that may inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict services while only wishing to reduce taxpayer expenditures for medical and social services. The common means of restricting non-emergency services insufficiently connects the subjects of reducing taxpayer expenditures and prohibiting the targeted group from participating in administrative services. Thus, the purpose of reducing taxpayer expenditures by eliminating expenditures on behalf of individual welfare for the targeted group is not dependent on and clearly related to the purpose of restricting access to administrative services."
* ON WHETHER THE PETITION CONTAINED A SINGLE SUBJECT:"Unlike lengthy, detailed, or convoluted regulatory measures, easily capable of hiding disparate subjects or combining them solely to increase voting power, the substantive provision of Initiative # 55 contains a single mandate, clearly expressed in a single, concise sentence. Consistent with federal law, government is required to restrict non-emergency services to those whose presence in this country is lawful. The majority, however, is able to characterize even this straightforward provision as containing multiple subjects, by parsing the motivation or objective of the proponents and treating each of its component parts as a separate 'subject.'"
* ON THE MAJORITY'S BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"[T]he majority unself-consciously equates the constitutional requirement that each initiative be limited to a single subject with a requirement that each initiative be motivated by a single objective or purpose in the minds of its proponents. By finding (through examination of the Defend Colorado Now website) that the proponents consider it fundamentally unfair for illegal residency in this country to be facilitated by access to taxpayer-provided services and, moreover, that the services to be denied persons here illegally include not only non-emergency police, fire, and medical services but non-emergency administrative services as well, the majority concludes that the proposed measure contains at least two distinct subjects. Apparently inferring that restricting non-emergency police, fire, and medical services adversely affects the welfare of those to whom the restriction applies while restricting other kinds of non-emergency services does not, it characterizes these two purposes, or 'subjects,' as 'decreasing taxpayer expenditures' by 'terminating services benefiting the welfare of individuals' and 'restricting unrelated administrative services.'"
*ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD:"[T]he majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it's clear and expressed ultimate objective. The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing. And according to the majority's logic, each such 'purpose,' apparently constitutes a 'subject' of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate."
* ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD:"Surely any provision expressed with sufficient generality to be appropriate for inclusion in a constitution will necessarily have a potential for, and be intended to have, multiple effects. Such a construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process. Nothing in the language or history of the single-subject requirement for popular initiatives or, for that matter, the identical limitation on statutes enacted by the general assembly, remotely suggests that in addition to being limited to a single subject, a proposal can also have but one, identifiable impact or effect; and any such requirement, if applied uniformly, would preclude all but the most trivial popularly-initiated proposals."
*ON TRUSTING THE WISDOM OF THE VOTERS OVER THE COURTS:"The right of the initiative appears to have been reserved to the voters, by our constitution, precisely for the purpose of providing them with a means of overriding the policy choices of their elected representatives (as well as the constitutional interpretations of the judiciary) and a means of prescribing measures they expect will more effectively accomplish their goals. There can be little doubt that certain formalities will always be indispensable to ensure that the will of the voters is actually expressed in their vote; and regardless of the wishes of the electorate at any point in time, the law of this jurisdiction will necessarily remain subject to the supremacy of the federal constitution. I do not believe, however, that the single-subject requirement can fairly be construed to assign to this court the role of screening from the voters any measure the full impact of which it considers them unable to appreciate; nor do I believe it is possible for judicial officers, however conscientious, to apply a standard as amorphous as the majority obviously considers the single-subject requirement to be, without conforming it to their own policy preferences."
In a voter-driven ballot measure that, if successful, would have required "English Language Education in Public Schools," Justice Hobbs writing for the majority, recognized the additional, unstated purposes present in the amendment of constraining school boards' traditional power to require bilingual education in public schools. It also found, however, that this effect was not a subject separate from the initiative's central theme of requiring English language instruction. Rather, the purpose of constraining school boards' traditional powers was “a logical incident of adopting structured English immersion.” Therefore, the majority opinion, via Justice Hobbs, found the initiative did not violate the single subject requirement.
On Negligence
In a 4-3 decision, Justice Mullarkey concurred, along with Justices Eid--who wrote the opinion--, Coats, and Martinez (Rice, Bender and Hobbs dissented), that the issue of whether the plaintiff driver was negligent, so as to result in a reduction in her damages award, was an issue that should have been submitted to the jury, where evidence was presented that she may, herself, have exhibited a lack of reasonable care, and thus her damages award should have been reduced accordingly. Underlying this case were disputes over (1) whether the conduct of civil plaintiffs should be subject to the same level of scrutiny as that of the defendant, and (2) to what extent judges should defer to a jury of Colorado citizens in determining negligence generally, and more specifically, the comparative negligence of a plaintiff.
* ON LIMITING THE ROLE OF THE JURY / EXPANDING THE ROLE OF THE JUDGE: "The majority held that "a driver is under a duty to drive with reasonable care," and where a defendant presents evidence that a plaintiff may have driven or otherwise acted unreasonably, the question of whether the plaintiff was comparatively negligent should be submitted to the jury. The majority reasoned that "[W]hether there was an emergency and whether the course of conduct chosen under the circumstances was reasonable are questions of fact to be determined by the trier of fact."
* ON PLAINTIFFS' RIGHTS V. DEFENDANTS' RIGHTS:"The dissent would have prohibited the jury from hearing evidence of the plaintiff's potential negligence in causing the accident that formed the basis of the lawsuit. The majority, on the other hand, found such analysis to be factual in nature, and thus to reside within the domain of the jury. Accordingly, the majority opinion focuses more on the possibility that the jury could have made a finding that the plaintiff herself was not entirely free from damages, and could have been found comparatively negligent."
*ON PLAINTIFFS' RIGHTS V. DEFENDANTS' RIGHTS:"The dissent would have held that, in determining whether to turn the issue of the plaintiff's comparative negligence over to the jury, the plaintiff owed only a "narrow duty of care" to the defendant, rather than "a broad duty of care," or even "an ordinary duty of care."
Justice Hobbs wrote the opinion of the court (with partial dissent by Justice Mullarkey) which affirmed the appellate court ruling and held that an employer wasn't responsible for the damages caused by an employee when not acting within the scope of his employment.
The plaintiffs brought suit against Performance Plumbing and Heating, Inc. for damages they incurred in an automobile accident caused by Cory Weese, a Performance Plumbing employee driving his own truck on the way home from work. The trial court found that Weese was not acting within the scope of his employment for Performance Plumbing when he caused injury to the Raleighs. Nevertheless, the jury awarded damages against Performance Plumbing for negligently hiring Weese. At the time of his hire, Weese stated that he had a valid license and no moving violations, although his license was then under suspension. Since Performance Plumbing was not assigning Weese a company vehicle, they did no further investigation into Weese.
The appeals court invalidated the jury's negligent hiring award in light of its finding that Weese was not acting within the scope of his employment when the accident occurred. The Supreme Court affirmed the appellate court's ruling, as Hobbs explained:The job required employees to commute to and from work on their own time. In this regard, this company is no different from any large number of Colorado employers who expect their employees to get to work on their own time and in their own way, and do not assume liability as part of their hiring decision to act as a surety for automobile accidents their employees may cause when commuting to and from work.[12]
On Property Rights
- Justice Mullarkey concurred with the majority opinion (authored by Justice Hobbs), which concluded, over the vigorous dissents of Justices Eid and Coats, that because a county was justified in implementing a complete moratorium on the development of property in that county, so that the impact of development could be studied, even though the county did not specify when the moratorium would end, and even though Colorado law, specially the Land Use Enabling Act only provided for a maximum moratorium of six months.
* ON PROHIBITING OWNERS FROM DEVELOPING THEIR PROPERTY:"The moratorium is an essential tool of successful development. * * * It counters the incentive of landowners to develop their land quickly to avoid the consequences of an impending land use plan for the jurisdiction.
* USING LAW FROM FOREIGN JURISDICTIONS:''"Other states have recognized the broad authority of local governments to use moratoria in furtherance of growth planning."
*USING LEGISLATIVE INTENT TO INFER/IMPLY WHAT THE LAW IS:"Our General Assembly has made clear its explicit intent to promote well-planned growth through the Land Use Enabling Act."
Justice Eid authored the dissenting opinion, in which Justice Coats joined, which fervently disagreed with the extent to which the Majority Opinion granted local governments power over private property, specifically noting that "[t]oday, the majority approves a moratorium of limitless duration, one effective 'until formally terminated' * * * [which] exceeds the scope of authority granted to local governments."
*ON PRIVATE PROPERTY RIGHTS:"The right to use one's property is guaranteed by the Colorado Constitution * * * local governments like Pitkin County do not possess a general zoning police power- at least not before today."
*CRITICISM OF THE MAJORITY'S APPROVAL OF THE MORATORIUM:"[T]here is nothing in the moratorium itself that would indicate that it had an end date ; the end date was purely discretionary with the County Commissioners. * * * In other words, although the moratorium did in fact last ten months, there was nothing preventing it from lasting twenty or thirty months. * * * The six month time limitation on moratoria * * * should control in this case."
* 'CRITICISM OF THE MAJORITY'S APPROVAL OF THE MORATORIUM / DEFERENCE TO THE LEGISLATURE:"The majority attempts to craft a substitute moratoria power: one that is limitless on its face but in fact lasts for what a court, after the fact deems to be a 'reasonable' amount of time. The problem with the majority's substitute power is that it bears little resemblance to the authority actually granted local governments by the General Assembly."
* CRITICISM OF THE MAJORITY'S APPROVAL OF THE MORATORIUM / DEFERENCE TO THE LEGISLATURE:* * * [T]he authority that the court recognizes today is so limitless that it can only be described as a general zoning police power. This noting is entirely inconsistent with the Land Use Enabling Act, which expressly imposes a time limitation on the moratoria.
*DEFERENCE TO THE LEGISLATURE:"A moratorium that lasts longer than the six months provided in The Land Use Enabling Act may be a land use tool that counties need to manage growth. * * * But they need to get that authority from the General Assembly, not from us."
Regulation
- In a bitterly divided 4-3 decision, Justice Hobbs provided the deciding vote when he concurred (along with Justice Mullarkey) in the Majority opinion in which the Court adopted the "reverse piercing of the corporate veil" doctrine. This doctrine, previously unrecognized in Colorado, allows a plaintiff to recover against a corporation for the debts/liability of one of its shareholders (as opposed to the traditional "piercing of the corporate veil" doctrine, which allows a plaintiff to recover against a shareholder for debts/liabilities of a corporation in which the shareholder owned shares).
- In dissent, Justices Coats, Eid, and Rice expressed outrage, noting that "once again the majority deprives the voters of an opportunity to express themselves on a proposal to limit public fundraising," and further arguing that there was "no principled basis" for treating limitations on "taxation" and "public indebtedness" as "separate subjects."
*REVERSE PIERCING IS "EQUITABLE":"Both types of piercing strive to achieve an equitable result. In traditional piercing, equity requires the veil be pierced to impose liability on a shareholder who has abused the corporate form for his or her own advantage. Similarly, in outside reverse piercing, an equitable result is achieved by ignoring the corporate fiction to attach liability to the corporation. “Indeed, it is particularly appropriate to apply the alter ego doctrine in ‘reverse’ when the controlling party uses the controlled entity to hide assets or secretly to conduct business to avoid the preexisting liability of the controlling party.” Thus, the purpose of obtaining a just result is furthered by permitting outside reverse piercing in Colorado."
* THE USE OF OUT-OF-STATE LAW TO JUSTIFY ADOPTI0N OF THE DOCTRINE"':The Majority noted that "a significant number of jurisdictions also recognize outside reverse piercing."
*CASTING THE MAJORITY OPINION AS AN ACTIVIST ADVISORY OPINION ON A PUBLIC POLICY QUESTION, RATHER THAN A LEGAL DETERMINATION:"The majority acknowledges that this Court is “disinclined to adopt a new principle of law in any context other than an appeal,” which has “the benefit of a full factual record.” It nevertheless proceeds to adopt reverse veil-piercing liability in the context of this certified question of law. Because I think that this is an inappropriate case in which to adopt this new form of liability that would permit a shareholder's creditors to reach corporate assets, I respectfully dissent. There are good reasons not to decide cases without a full factual record, and those reasons are even more applicable when adopting a new form of liability. Facts enable the Court to consider how the doctrine works in context, rather than in isolation. As has been noted by the United States District Court for the District of Colorado, the court from which the issue in this case was certified, “[t]he laws as to when the courts will pierce the corporate veil are easy to state, but hard to apply.” Indeed, in at least one case addressing traditional veil-piercing, we have declined to apply the doctrine “[i]n the absence of a fully developed factual record and adequate findings of fact.” I can see no reason why reverse veil-piercing should be treated differently."
*ON THE POLICY IMPLICATIONS OF ADOPTING THE REVERSE PIERCING DOCTRINE: "Reverse veil-piercing could have a significant impact on the legal landscape in Colorado. “Generally, a corporation is treated as a legal entity separate from its shareholders.” Thus, the corporate form protects the corporation from risks associated with individual shareholders. A shareholder's creditors can only reach stock issued to and owned by shareholders; corporate assets are shielded. If reverse veil-piercing is permitted, however, the corporation becomes liable for the debts of one (or more) of its shareholders. Accordingly, reverse piercing can prejudice other shareholders and creditors by reducing corporate assets."
*CRITIQUE OF RERVERSE PIERCING AS A POLICY:"[A]fter today's ruling, assets of Colorado corporations could be subject to reverse veil-piercing at some time in the future. The recognition of reverse veil-piercing in Colorado will significantly affect (1) the expectations of shareholders with regard to the risks and liabilities to which their investment might be exposed, and hence that investment's value; and (2) the expectations of creditors with regard to the risks to and security of their collateral. There is a significant and fundamental difference between traditional veil-piercing, which allows parties to reach individual assets, and reverse veil-piercing, which permits parties to reach corporate assets."
*A CONSERVATIVE LEGAL APPROACH TO CHANGING THE LAW:"Given that the effect on the expectations of Colorado corporate shareholders and creditors could be substantial, I am unwilling to adopt reverse veil-piercing in a contextual void. Colorado corporate law has operated without reverse veil-piercing liability until now, and it can continue to do so until an appropriate case is brought before us to consider the issue."
- In a bitterly divided 4-3 decision, Justice Hobbs wrote the majority opinion (in which Justice Mullarkey concurred) in a debt collection case, which, over the fervent dissents of Justices Coats, Rice, and Eid, created a new standard of law to apply to debt collection cases: the least sophisticated consumer standard. Under the standard, the majority noted that correspondence from creditors from debtors will by judged as to whether it sufficiently conveys requisite notices and other disclaimers so that the "least sophisticated" of consumers would understand it. Pursuant, the Majority found that the Creditor violated that standard in this case by "burying" disclosures in "fine print," and by communicating two different deadlines: a 30 day deadline to dispute the debt, and a 39 day deadline to take advantage of the settlement offer.
- The dissenting opinion, written by Justice Eid, strongly disagreed, stating that the Majority's rule "penalized creditors for permitting consumers to contact them by phone and for giving consumers additional time to consider a settlement offer after they dispute a debt," and "may well harm consumers in the long run," and posited that "after today, to avoid any such 'confusion' posited by the majority, collection agencies may simply prevent consumers from contacting them by phone. For many consumers, however, phoning is the easiest, most convenient, and most accessible means of communication." The dissent further noted that "even the least sophisticated consumer can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care." It finished by noting that "[t]oday's opinion, combined with federal case-law, effectively prohibits collection agencies from setting any deadline for acceptance of settlement offers, * * * will discourage, or perhaps bar, settlement offers in Colorado," even though "for many consumers, accepting a settlement offer will be the best option."
On Taxes
In considering whether the voters should be able to consider a ballot measure that would have added a sunset provision, requiring all tax increases to automatically expire after 10 years, Justice Mullarkey concurred in the majority opinion, written by Rice, which held that voters should not be able to consider the measure because "while either or both tax or debt limitations may be attractive, the voters would also be limiting * * * relief from [TABOR's] spending caps."
In an animated dissent, Justice Coats expressed outrage, noting that "once again the majority deprives the voters of an opportunity to express themselves on a proposal to limit public fundraising," and further arguing that there was "no principled basis" for treating limitations on "taxation" and "public indebtedness" as "separate subjects."
*ON THE MAJORITY OF THE COURT'S BIAS AGAINST THE CONSERVATIVE ECONOMIC AGENDA: "Even a cursory review of this court's ballot title jurisprudence reveals an unmistakable lack of uniformity in our treatment of the single-subject requirement. Surely it cannot go unnoticed that popularly initiated measures affecting public funding have been subjected to far more exacting, and seemingly arbitrary, line-drawing than has been applied to most other initiatives."
*ON WHY LIMITING TAXES AND PUBLIC DEBT ARE RELATED TO THE SAME PURPOSE:"The proposed time limitation on the effective life of public fundraising measures applies evenhandedly to all such devices governed by TABOR, which merely amount to different methods of raising public funds for expenditure. Whether they involve taxation or incurring public indebtedness, the techniques of public fundraising covered by the proposal are not sufficiently distinguishable in the public mind to suggest either an attempt to combine disparate voting blocks in order to secure passage or to surreptitiously include certain fundraising techniques that voters would be surprised to find in combination with the others. Quite the contrary, in light of their common purpose, there is little or no reason to believe that voters who would be inclined to favor a time limitation on exceptions to TABOR would be so inclined only if it included exceptions involving either taxation or debt creation, but not both."
*ON WHETHER THE PETITION CONTAINED A SINGLE SUBJECT: "The majority makes no attempt to relate its finding of multiple subjects to these purposes, and instead simply concludes that the proposal at issue in this case contains subjects that are not sufficiently “dependent upon” or “connected with” each other because a similar distinction had been made with regard to other public funding proposals in the past. Maj. op. at 239. Whatever the merits of those prior holdings, given the complexity and potential for misunderstanding of the individual proposals in those cases, it is clear (at least to me) that neither danger meaningfully threatens the current proposal. The proposed initiative in this case consists of two short paragraphs of two sentences each, and it is closely paraphrased in a single sentence, with the addition of a cross-reference to the TABOR amendment, in the title fixed by the board. Both the proposed initiative and the title expressly and clearly state that the proposal would limit the effective life of any ballot issue increasing either taxes or public indebtedness."
In construing Colorado's Taxpayer Bill of Rights, which required that the voters approve any tax increase, Justice Hobbs concurred in the Majority opinion, which held that the "extension" of a tax that was set to expire was not a "tax increase," that required voter approval, because the plain and ordinary meaning of the term "tax increase" does not appear to encompass "tax extension."
*ON WHY EXTENDING AN EXPIRING TAX IS NOT EQUIVALENT TO A TAX INCREASE:"A tax extension does not evoke the specter of unchecked government growth contemplated by Amendment 1/Colorado's Taxpayer Bill of Rights. While a tax increase leads to a greater burden on taxpayers * * *, a tax extension merely maintains the present taxpayer burden and size of government. Where the size of government is neither expanding or contracting, the concerns underlying Amendment 1 are largely peripheral. * * * The typical voter would not interpret the tax extension * * * to be anything more than a continuation of the status quo."
- In an energized dissent, Justice Coats expressed outrage, noting that "[t]oday the majority excuses a local government's calculated refusal to provide the notice required for proposed tax increases by the popularly adopted Taxpayer's Bill of Rights, holding that the term “tax increase” was never intended to include the imposition of a future tax, despite clearly requiring voter approval, as long as it does not exceed the amount of a previous tax earmarked for the same purposes. I consider the majority's interpretation of the term “tax increase” (as well as its understanding of the words “plain and ordinary meaning”) to be so strained as to demand some expression of opposition. I therefore respectfully dissent."
*ON THE MAJORITY'S "CONDESCENDING" approach to tax issues:"The majority's (somewhat) condescending rejection of any other reading rests on its unstated (and to my mind clearly erroneous) assumption that the term “tax increase” is limited to increases in the tax burden under which the taxpayers labor at the time voter approval is sought for additional tax revenues. When the majority speaks of “present” tax levels and “existing” sales and use taxes, maj. op. at 996, it refers to levels of taxation preceding the election, rather than the burden to which taxpayers will be subject, barring their approval of a greater amount, in the applicable tax period."
*ON THE PURPOSE OF COLORADO'S TAXPAYER BILL OF RIGHTS:"The plain and ordinary meaning of the term “tax increase,” however, would seem to be much less cramped and encompass any tax for which the approval of the voters is required. Even if this constitutional language, in the abstract, could reasonably be limited to future tax levels exceeding those to which taxpayers had previously been subjected, such a construction could not be squared with the remaining provisions of TABOR or its clear purpose of expanding voter oversight of the taxation process."
*THE MAJORITY'S UNDERESTIMATION OF VOTERS' INTELLIGENCE:"[The Majority] concludes by suggesting that its interpretation is supported by the fact that the electorate would merely have been confused by notification that subjecting itself to a future 0.1% sales and use tax would actually amount to approving a tax increase."
* ON GOVERNMENT CORRUPTION:"the failure to comply with TABOR's notice requirements in this instance was not simply a technical omission, belatedly asserted by taxpayers as a means of nullifying election results with which they were displeased. The matter was raised well before the election, and the municipality consciously chose not to give notice or identify the measure as a proposed tax increase. On the contrary, the ballot title for this tax measure expressly indicated that approving the measure would not raise additional taxes, a deceptive statement, accurate only in the narrow sense validated by the majority today."
* ALLEGATION THAT THE MAJORITY HAS MISLED THE PUBLIC WITH ITS RULING: "Surely a fair reading of the Taxpayers' Bill of Rights leads inexorably to the conclusion that this is an example of precisely what the amendment was designed to prohibit. Nor do I believe the doctrine of “plain meaning” provides the majority any refuge. Particularly, in this context, I fear that the majority's plain meaning explanation-that “tax increase” can only mean an increase in the taxes taxpayers have been paying rather than an increase in the taxes they would be required to pay without an extension-sounds so far fetched as to evoke the suggestion of legal artifice and undermine confidence in our protestations that we merely acknowledge the only reasonable meaning of, and therefore the voters' intent embodied in, the constitutional language itself."
External Links
References
- ↑ National Multiple Sclerosis Society
- ↑ Harvard Journal of Law and Gender
- ↑ The League of Women Voters of Larimer County
- ↑ Legal Momentum: Advancing Women's Rights Official Website
- ↑ Colorado Judicial Institute
- ↑ FairVote.org
- ↑ Original Defend Colorado Now Amendment
- ↑ Rocky Mountain News
- ↑ 5 Senate Dems join Republicans to limit services to illegals
- ↑ Equal Justice Magazine
- ↑ Danielson v. Dennis via State Court Page
- ↑ Raleigh via CO Courts Page
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