Colorado Legal Cases

Date: September 20, 2013 Last Edit: November 08, 2016

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Direct Marketing v. Brohl – Property Rights
U.S. Supreme Court – cert petition

The State of Colorado has enacted a statute that imposes special reporting requirements on out-of-state online merchants. Since these reporting requirements do not apply to Colorado businesses, NFIB argues that Colorado is effectively discriminating against out-of-state business in violation of the Dormant Commerce Clause of the U.S. Constitution. And given that several other states are now implementing legislation modeled on Colorado’s law, we are concerned that this will all make online marketing difficult for retail businesses. As such, we’ve asked the Supreme Court to review a decision from the Tenth Circuit Federal Court of Appeals upholding the statute in question.

 

Status: PENDING. Amicus brief filed 9/30/16. 

 

In re Dwyer v. Colorado – Tax
Colorado Supreme Court – 4/22/15

In 2012, the NFIB Legal Center filed an amicus brief in the Colorado Supreme Court in the Lobato, a school funding case, which argued that if the plaintiffs were successful, the General Assembly would be forced to dedicate virtually the entire General Fund budget to public education and, as a result, the economy and business climate would be decimated. The proponents of that litigation are now arguing that the legislature is not following the mandate of Amendment 23 requiring annual increases to public education funding. The State sought to dismiss the case before trial, but the trial judge denied that request.  So the State has appealed directly to the Supreme Court. 

Jordan v. Panorama Orthopedics – Legal Reform
Colorado Supreme Court

The court will decide whether tenants leasing space in a building owned by another party may be held liable for a slip-and-fall injury on an adjacent sidewalk. NFIB’s amicus brief argues that the property owner—not the tenants of the leasehold- are responsible unless the tenant assumed a contractual obligation to take care of common areas.

 

Kerr v. Hickenlooper – Defending Colorado’s TABOR

U.S. Court of Appeals for the Tenth Circuit

U.S. Supreme Court – cert petition

The Taxpayer Bill of Rights, known by the acronym TABOR, requires a public referendum on tax increases and tightly limits spending. Plaintiffs, including a handful of state legislators, challenged the measure on the grounds that it unfairly restricts the legislature from doing its job. NFIB asserts that overturning TABOR would open the floodgates for litigation against voter-enacted spending controls around the country, and undermine Colorado voters’ decision to keep government spending in check. The Tenth Circuit ultimately ruled that the legislators lacked standing to pursue their claim.

Status: VICTORY! Amicus brief filed 2/12/13. Court upheld dismissal of case 2/14/14. Brief in support of cert petition to Supreme Court filed 11/20/14. Supreme Court remanded on 06/30/15.

Amicus brief filed 7/31/15. Tenth Circuit reversed on 06/3/16.

 

Martinez v. COGCC – Regulatory (oil, gas and fracking permits)

Colorado Supreme Court

In this suit, an environmental activist seeks to compel permitting authorities in Colorado to deny any new permits for oil, gas and fracking operations within the State. NFIB Legal Center joined with the National Association of Manufacturers in arguing that state law allows the permitting authority to continue to issue energy development permits, while weighing environmental concerns. Importantly, NFIB argues that the Colorado General Assembly did not intend to have regulators weigh environmental factors exclusively to the detriment of regulated industry. Instead, the Assembly intended a balanced approach to regulation that woul allow for continued economic growth.

Status: PENDING. Amicus brief filed 5/19/17.

 

NFIB v. Gessler – Regulatory
District Court for City and County of Denver

Seeking enforcement of the Taxpayer Bill of Rights under the state’s constitution, NFIB sued Secretary of State Scott Gessler. The complaint alleges that the State collects approximately $20 million per year from businesses that are required to file certain documents with the State. However, the Secretary of State’s office doesn’t just regulate businesses, it runs the State’s elections operations, regulates bingos and raffles, and conducts other functions not related to businesses, all of which is funded by the money collected from businesses small and large.  The office receives no money from the State’s general fund.  Because a significant portion of the Business Licensing Charges are appropriated to defray the Department’s and the State’s General Expenses, the Business Licensing Charges are a tax and not a fee.”  Thus, the State is imposing an illegal tax on small businesses to fund obligations that should be a cost shared by everyone. 

 

NFIB v. Williams (NFIB  v. Gessler) – Regulatory

District Court for City and County of Denver

NFIB sued the Colorado Secretary of State in order to enforce the Colorado Taxpayer Bill of Rights (TABOR) as enshrined in the State Constitution. The complaint alleged that the State has illegally collected approximately $20 million per year from businesses that are required to file certain documents with the State. However, the Secretary of State’s office doesn’t just regulate businesses; it runs the State’s elections operations, regulates bingos and raffles, and conducts other functions not related to businesses, all of which is funded by the money collected from businesses small and large.  The office receives no money from the State’s general fund.  Because a significant portion of the Business Licensing Charges are appropriated to defray the Department’s and the State’s General Expenses, the Business Licensing Charges are a tax and not a fee.”  Thus, the State is imposing an illegal tax on small businesses to fund obligations that should be a cost shared by everyone. However, the District Court in Denver ruled that these business licensing “fees” are constitutional because they were authorized initially by a pre-TABOR statute. But on appeal NFIB argues that TABOR requires a vote of the people on all newly imposed taxes, which includes the charges the Secretary of State has imposed on businesses since enactment of TABOR because the Secretary has routinely changed and increased “fees” imposed on businesses. Further, NFIB argues that these ‘fees’ are actually taxes—regardless of the label the Secretary may use.

Status: PENDING. Complaint filed 12/22/14.

 

Stone v. Life Time Fitness – Legal Reform

Colorado Supreme Court – request for review

The Legal Center joined in a brief asking the Colorado Supreme Court to overtime a lower court decision that rejected a release of liability because it contained “legal jargon.” The decision is not only contrary to longstanding Colorado law, but it leaves attorneys who draft releases in a complete bind as it would be difficult to write a release that doesn’t include terms such as “assumption of risk,” and “inherent risks.”

STATUS: Pending. Amicus brief filed 3/10/17.

 

Warne v. Hall – Legal Reform
Colorado Supreme Court

The case arises out of a land use dispute and concerns whether Colorado should adopt the Iqbal/Twombly pleading standard. 

 

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If you have a case that impacts small business, please contact us at:  1-800-552-NFIB as we are actively looking for opportunities to weigh in on important issues in this state. NFIB Small Business Legal Center is involved in many cases that impact this state and others; to see our complete list of Supreme Court cases click on Washington, DC on the interactive map.

Thank You

 

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