# Amicus Curiae Brief — Pacheco v. DeFoor (No. 91-1922)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992

## Text

No. 91-1922

In The
Supreme Court of the United States

October Term, 1991
6

YVONNE E. DEFOOR, FRANK BOWEN, et al

THE STATE OF COLORADO, et al.,

Respondents

——————————— oo —————————————

Petition For Writ Of Certiorari
To The Supreme Court of The State Of Colorado

a * —_

AMICUS CURIAE BRIEF OF THE COLORADO
INTERGOVERNMENTAL RISK SHARING
AGENCY (“CIRSA”) IN SUPPORT OF THE

RESPONDENTS AND IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

(Sn a - --- @ —

Susan K. GriFFITHS
(Counsel of Record)
Tami A. TANOUE
GrirFitHs & TANOuE, P.C
Blake Street Terrace
1860 Blake Street, Suite 550
Denver, CO 80202
(303) 298-1601

Attorneys for CIRSA

lune, 1992

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

No. 91-1922
a 4

In The

Supreme Court of the United States

October Term, 1991
¢

YVONNE E. DEFOOR, FRANK BOWEN, et al.,

Petitioners,

THE STATE OF COLORADO, et al.,

Respondents.

°
Petition For Writ Of Certiorari
To The Supreme Court of The State Of Colorado
¢
MOTION OF THE COLORADO
INTERGOVERNMENTAL RISK SHARING

AGENCY FOR LEAVE TO APPEAR
AS AMICUS CURIAE

¢

The Colorado Intergovernmental Risk Sharing
Agency (“CIRSA”) appears by its undersigned counsel,
and requests leave of the Court pursuant to Rule 37.4 to
file an amicus curiae brief in support of the position of the
Respondent State of Colorado. A copy of the proposed
brief accompanies this motion. The attorneys for the
Respondents have consented to the filing of the brief;
their written consents have been filed with the Clerk. The
consent of the attorneys for the Petitioners was requested
but refused.

|

A. NATURE OF THE APPLICANT'S INTEREST.

1. 113 Colorado municipalities - almost one-half the
total number of Colorado municipalities — form CIRSA, a
public entity insurance pool governed by its members,
and providing certain liability, property, and workers’
compensation protections to the members.

2. CIRSA and its members rely upon the
$150,000/$400,000 minimum limits of the Colorado Gov-
ernmental Immunity Act, Colo. Rev. Stat. §24-10-101 -
120. The minimum limits apply equally to the State of
Colorado and to all other Colorado public entities and
public employees, including Colorado’s municipalities
and their officers, employees, and authorized volunteers,
protecting each from the threat to essential public ser-
vices and functions posed by unlimited tort liability.
Colo. Rev. Stat. .§24-10-103(4) and (5), and §24-10-114.

3. The monetary limits of the Colorado Govern-
mental Immunity Act significantly affect the liability pro-
tection which is available to Colorado’s municipalities
through CIRSA, as well as the cost of that protection.
Consequently, those limits are of particular importance
and substantial concern to CIRSA and its member munic-
ipalities.

4. The Petitioners’ attack on the limits of the Act
does not affect the Respondents alone. Rather, it affects
all public entities in Colorado including municipalities,
and their officials and employees.

———— a

B. QUESTIONS OF LAW THAT ARE NOT ADE-
QUATELY PRESENTED IN THIS CASE.

1. Contrary to the Petitioners’ characterization of
the two issues presented by this case, this case does not
present any unsettled question of federal law warranting
review by this Court. Properly characterized, the issues
present no substantial federal issues and warrant denial
of the Petition.

2. Permitting the filing of a brief on behalf of CIRSA
would afford the Court a more complete perspective con-
cerning the nature of the issues presented by this case
and their impact on all of Colorado’s public entities,
officials, and employees.

Respectfully submitted,

SusAN K. GRIFFITHS
(Counsel of Record)

Tami A. TANOUE

GriFFITHs & TANOUE, P.C.

Blake Street Terrace

1860 Blake Street, Suite 550
Denver, Colorado 80202

(303) 298-1601

Attorneys for amicus curiae CIRSA

June 29, 1992

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES.............. Nenvenecean ii
INTEREST OF THE AMICUS CURIAE ............. 2
REASONS FOR DENYING THE WRIT............. 7

I.

IT.

Il.

NO SUBSTANTIAL CONFLICT EXISTS
AMONG STATE COURTS OF LAST RESORT
ON THE VALIDITY OF MONETARY LIMITS
ON GOVERNMENTAL TORT LIABILITY
UNDER THE UNITED STATES CONSTITU-
be Pe ee re eter tas Me, en ip

NO SUBSTANTIAL OR IMPORTANT QUES-
TION OF FEDERAL LAW IS PRESENTED ..

A. No subsiantial equal protection question
i, , TEETER ECT ee ere

B. No substantial due process question is
UII ss ns 0 ns ccanedetessand lees

GRANTING CERTIORARI WOULD UNNEC-
ESSARILY PLACE IN QUESTION THE VAL-
IDITY OF THE MONETARY LIMITS AND
ADVERSELY AFFECT THE INSURANCE
COVERAGES AVAILABLE TO GOVERN-
MENTAL ENTITIES............

A a c-6 6a 05k xake een ;

14
15

ii

TABLE OF AUTHORITIES
Page

Cases

Arizona Copper Co. v. Hammer, 250 U.S. 400 (1919) .... 13

Estate of Cargill v. City of Rochester, 119 N.H. 661,
406 A.2d 704 (1979), appeal dismissed, 445 US.

4) te Piet ae A 8, 15
Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.

4 ey ee rem ey 7
City of Austin v. Cooksey, 570 S.W.2d 386 (Tex. | ae 8
Condemarin v. University Hosp., 775 P.2d 348 (Utah

EPOR Es ck tac ickbeskstecs eee 8, 9, 10
Consoli v. Municipio de San Juan, 408 F.Supp. 384

(. Pueste Rico T6FS).... 555s acc 8
Crowe v. John W. Harton Memorial Hosp., 579 S.W.2d

SOG (Tenn. App. 1979) occ iccccccshccicsesecle 8
Dandridge v. Williams, 397 U.S. 471 (1970) ........... 10
Dove v. Delgado, 808 P.2d 1270 (Colo. | Se 11
Duke Power Co. v. Carolina Environmental Study

Group, 438 U.S. 59 (1978)................... 9, 10, 12
Goldberg. v. Musim, 162 Colo. 461, 427 P.2d 698

bi erry ee 11
Grange Mut. Casualty Co. v. City of Columbus, 49

Ohio App. 3d 50, 550 N.E. 2d 524 tee 7
Hale v. Port of Portland, 308 Or. 508, 783 P.2d 506

fe Pre i da eo ee 8
Hanson v. Williams County, 389 N.W. 2d 319 (N.D.

SIND bs kant aeugebeeey cere 11

Home Indem. Co. v. Anders, 459 So.2d 836 (Ala.
a) ETE T Tir 7

ili

TABLE OF AUTHORITIES - Continued

Page
Jetton v. Jacksonville Elec. Auth., 399 So.2d 396 (Fla.
App. 1981), petition denied, 411 So.2d 383 (Fla.
RO aks oe ee ee. 7
Lee v. Colorado Dep’t of Health, 718 P.2d 221 (Colo.
| RE GRE ae ori Rn ee ies ie eee yi 7
Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111
Bo erm arte tn Ree re eur ere ape a 7
Lienhard v. Minn., 431 N.W.2d 861 (Minn. 1988) ...... 7
Lyles v. Penn., 512 Pa. 322, 516 A.2d 701 (1986)....... 7

Martinez v. California, 444 U.S. 277 (1980)..... 11, 12, 13

Meech v. Millhaven West, Inc., 238 Mont. 21, 776

Fe ee CU a cin au shuns davawe eee rey ee 9
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.

LT eee ee ee ere ee eee 12
Munn v. Iliinots, 94 U.S. 113 (1876).................. 13
Nevada v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976)..... 8
Nevada v. Silva, 86 Nev. 911, 478 P.2d 591 (1970) ..... 8

Packard v. Joint School Dist. No. 171, 104 Idaho 604,
661 P.2d 770 (Idaho Ct. App. 1983) ................ 7

Pfost v. Montana, 291 Mont. 206, 713 P.2d 495
fe eer ee ere ee Tre re ee err rr 9

Sambs v. City of Brookfield, 97 Wis.2d 356, 293
N.W.2d 504 (1980), cert. denied, 449 U.S. 1035
SOURS WRSA NE CANEACAd Sees eek eeaaa se ebeeee cea .

iv

TABLE OF AUTHORITIES - Continued

Page
Seifert v. Standard Paving Co., 64 Ill.2d 109, 355
N.E.2d 537 (1976), overruled on other grounds,
Rossetti Contracting Co. v. Court of Claims, 109
Ill.2d 72, 485 N.E.2d 332 (1985).................... 8
Shoemaker v. Mountain States Tel. & Tel. Co., 38
Colo. App. 321, 559 P.2d 721 (1976)............... 11
Sibley v. Board of Supervisors, 462 So.2d 149 (La.
i eT err ee ey i ae aa ee 8
Silver v. Silver, 280 U.S. 117 (1929) .................. 13

Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d
306 (1986), appeal dismissed, 479 U.S. 1074 (1987) ..7, 15

Stanhope v. Brown County, 90 Wis.2d 823, 280
etch ao Bf th cise EET eT ne 8

State v. DeFoor, 824 P.2d 783 (Colo. 1992).. 7, 10, 11, 14
Trujillo v. City of Albuquerque, 110 N.M. 621, 798 —

PE Se CUP a oh in oak b easy edd ese dea eacde sacs 10, 11
Vogts v. Guerrette, 142 Colo. 527, 351 P.2d 851

ies PETE TE Pe eT eens 14
Wilson v. Gipson, 753 P.2d 1349 (Okla. oo ae 7
Wright v. Colleton County School Dist., 301 S.C. 564,

de |) rr 7

STATUTES

oe 11
a 14
Colo. Rev. Stat. §24-10-101 - 120 ..................... 2

Colo. Rev. Stat. §24-10-102........................... 6

Vv

TABLE OF AUTHORITIES - Continued

Page
Colo. Rev. Stat. §24-10-114(1)....................0005. 2
Colo. Rev. Stat. §24-10-114(2)........00.000.0.00.0.... 2
House Bill No. 1317, 1990 Colo. Sess. Laws, Ch. 1
SN 6 8 ssts SIRES ane pe ean GG hea oN eueeeeaays cs 5
OTHER AUTHORITIES
Governmental Immunity Limits Task Force, Report
to the Governor and General Assembly (1988)......... 3

State of Colorado, Division of Local Government,
Department of Local Affairs, Local Government
Financial Compendium (1989)........................ 4

No. 91-1922

r
In The

Supreme Court of the United States
October Term, 1991

¢

YVONNE E. DEFOOR, FRANK BOWEN, et al.,

- Petitioners,

THE STATE OF COLORADO, et al.,

Respondents.

¢

Petition For Writ Of Certiorari
To The Supreme Court of The State Of Colorado

*

AMICUS CURIAE BRIEF OF THE COLORADO
INTERGOVERNMENTAL RISK SHARING.
AGENCY (“CIRSA”) IN SUPPORT OF THE

RESPONDENTS AND IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

S

The Colorado Intergovernmental Risk Sharing
Agency (“CIRSA”), amicus curiae, appears in support of
the Respondent State of Colorado, and submits this brief
in opposition to the Petition for Certiorari.

¢

INTEREST OF THE AMICUS CURIAE

Petitioners’ attack on the $150,000/$400,000 minimum
limits! of the Colorado Governmental Immunity Act, Colo.
Rev. Stat. §24-10-101 - 120 (“Act”), is directed at the State of
Colorado but is of vital concern to Colorado’s local govern-
ments. The Act protects all Colorado public entities and
public employees, including the State, cities, towns, counties,
school districts and special districts, as well as their officers,
employees, and authorized volunteers. Any decision of this
Court will affect each of them directly and substantially.

CIRSA is a public entity insurance pool formed by
intergovernmental agreement among its member Colorado
cities and towns. It provides liability protection to 113 mem-
bers — which compose almost one-half of the total number of
cities and towns in Colorado - as an alternative to the
traditional commercial insurance market.

The need for such aiiernatives became particularly
apparent during the so-called “insurance crisis” in 1985 and
1986, when commercial liability insurance for public entities
quickly became unavailable, too costly, or too limited in
scope. CIRSA’s membership more than tripled during that
period. The crisis even required emergency State action in
1985 to permit the State to self-insure its liability risks after
its insurance coverages were cancelled and no replacement
could be found.

‘ In contrast to many statutes which place a monetary
ceiling or limit on recovery, Colo. Rev. Stat. §24-10-114(1) cre-
ates monetary minimums on recovery. Public entities in Colo-
rado are expressly authorized to exceed those minimums by
resolution. Colo. Rev. Stat. §24-10-114(2).

ee =

CIRSA is governed by its member cities and towns,
and financed through member contributions. The contri-
butions pay for covered claims against the members and
their officers and employees. The contributions are also
used to buy certain excess insurance or reinsurance cov-
erages.

CIRSA and its members rely upon the
$150,000/$400,000 minimum limits of the Act. Each mem-
ber remains liable for claims not covered by CIRSA, and
the members are individually or jointly responsible for
payment of claims if the contributions to CIRSA and the
excess insurance or reinsurance coverages are insuffi-
cient.

If the $150,000/$400,000 minimum limits were invali-
dated, the cities and towns which participate in CIRSA
would individually assume greater responsibility for the
resulting unlimited liability, or be required to obtain
increased coverage through CIRSA or the commercial
market, if available. In either event, significantly
increased costs would result. According to CIRSA testi-
mony to a special task force formed by the Governor of
Colorado after the Berthoud bus tragedy, increasing the
$150,000 per person minimum to $1 million would have
cost CIRSA’s members approximately $13 million in addi-
tional funds for the period of 1983 through 1987. Increas-
ing the current $400,000 per occurrence minimum to $1
million would have increased those costs by $5 million
during that same period.?

* Governmental Immunity Limits Task Force, Report to the
Governor and General Assembly, at February 19, 1988 minutes (1988).

The amount of Petitioners’ claims in this case would
far exceed even those proposed increases in the limits,
and financially devastate most Colorado local govern-
ments. A total of about $14.4 million was sought by eight
claimants in this case; claim notices from an additional
eight claimants were for an “undetermined amount”; and
more claim notices were expected to be filed.

$14.4 million alone exceeds the 1989 total general
revenue for all but 18 of Colorado’s 270 cities and towns
and all but 14 of Colorado’s counties.3 Even the $400,000
per oceurrence limit of the Act exceeds the 1989 total
general revenue of more than one-half of Colorado’s
cities and towns.* According to the Colorado State Audi-
tor, the $150,000 per person limit of the Act exceeds the
annual revenues of more than 350 special districts provid-
ing fire protection, drainage, recreation, cemetery, water,
Sanitation, and water conservation services to Colorado
citizens.

Local government revenues reflect not only a limited
tax base, but also limited revenue-raising power. The
property taxpayer shoulders most of the tax burden of
Colorado’s county, school district, and special district
governments, as well as some of the municipal tax bur-
den. Annual increases in property taxes are strictly

° Total revenue figures are for general government activ-
ities. State of Colorado, Division of Local Government, Depart-
ment of Local Affairs, Local Government Financial Compendium
(1989), at 71-344.

* i.

limited by state law for most local governments. Yet
despite these limits, repeated attempts have been made in
recent years to impose additional limits on Colorado state
and local government taxing authority. Since 1972, at
least seven different tax or spending limit amendments to
the Colorado Constitution have been submitted to the
voters during the State’s general elections (held every
four years), and additional tax limitation measures are
likely to appear on the 1992 general election ballot.

State and federal laws also mandate numerous local
taxpayer-funded expenditures. Those mandates leave
only a portion of the limited revenue available to finance
services desired by the local citizens, including paving
Streets, filling potholes, providing fire protection and
police protection, educating children, providing water
and sewer services, and so forth.

Even the State’s comparatively larger revenues
would be severely taxed by the Petitioners’ claims. The
amount of $14.4 million alone equals or exceeds the entire
State appropriation for 1990 for ordinary operating costs
for each of the following State functions and services,
among othersS: Colorado Supreme Court, National
Guard, Parks and Outdoor Recreation, Disaster Emer-
gency Services, Division of Insurance, Civil Rights Divi-
sion, Aid to Needy Disabled, Department of State,
Department of Treasury, School for the Deaf and Blind,
Governor’s Office, Economic Development Programs,
Hazardous Materials and Waste Management, Hand-
icapped Children’s Program, and Liquor Enforcement.

> House Bill No. 1317, 1990 Colo. Sess. Laws, Ch. 1 (1990).

The unlimited tort liability sought by Petitioners is
simply not financially feasible given the limited revenue-
raising capability of Colorado’s local governments and
their taxpayers, and the proven unreliability of the com-
mercial insurance market to protect local governments
from losses beyond their financial means.

Colorado’s local governments must look to the Act’s
$150,000/$400,000 minimum limits to provide some
financial certainty to the scope of their tort liability. The
Act helps limit financial exposure and the costs of insur-
ance and self-insurance for claims where no immunity
exists, and helps ensure that qualified persons will con-
tinue to serve in public office and employment. The Colo-
rado General Assembly described the Act’s policies in
Colo. Rev. Stat. §24-10-102, as follows:

The general assembly . . . recognizes that the
state and its political subdivisions provide
essential public services and functions and that
unlimited liability could disrupt or make pro-
hibitively expensive the provision of such essen-
tial public services and functions. The general
assembly further recognizes that the taxpayers
would ultimately bear the fiscal burdens of
unlimited liability and that limitations on the
liability of public entities and public employees
are necessary in order to protect the taxpayers
against excessive fiscal burdens. It is also recog-
nized that public employees, whether elected or
appointed, should be provided with protection
from unlimited liability so that such public
employees are not discouraged from providing
the services or functions required by the citizens
or from exercising the powers authorized or
required by law.

ae |

The difficult choices inherent in allocating limited
public funds when injuries of the magnitude involved in
the Berthoud bus accident are suffered have been, and
Should remain, the province of legislatures.

¢

REASONS FOR DENYING WRIT

I. NO SUBSTANTIAL CONFLICT EXISTS AMONG
STATE COURTS OF LAST RESORT ON THE VAL-
IDITY OF MONETARY LIMITS ON GOVERN-
MENTAL TORT LIABILITY UNDER THE UNITED
STATES CONSTITUTION.

With the Colorado Supreme Court’s previous deci-
sion in Lee v. Colorado Department of Health, 718 P.2d 221
(Colo. 1986), upholding the validity of the Act’s $150,000
per person minimum against constitutional attack, and its
decision here upholding the $400,000 per occurrence min-
imum, Colorado joined at least sixteen other jurisdictions
which have upheld similar monetary limits. All of those

6 State v. DeFoor, 824 P.2d 783 (Colo. 1992); Wright v. Col-
leton County Sch. Dist., 301 S.C. 564, 391 S.E. 2d 564 (1990);
Grange Mut. Casualty Co. v. City of Columbus, 49 Ohio App. 3d
-50, 550 N.E. 2d 524 (1989); Wilson v. Gipson, 753 P.2d 1349
(Okla. 1988); Lienhard v. Minn., 431 N.W.2d 861 (Minn. 1988);
Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 (1986),
appeal dismissed, 479 U.S. 1074 (1987); Lyles v. Penn., 512 Pa. 322,
516 A.2d 701 (1986); Home Indem. Co. v. Anders, 459 So.2d 836
(Ala. 1984); Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111
(1983); Packard v. Joint School Dist. No. 1 71, 104 Idaho 604, 661
P.2d 770 (Idaho Ct. App. 1983); Jetton v. Jacksonville Elec. Auth.,
399 So.2d 396 (Fla. App. 1981), petition denied, 411 So.2d 383
(Fla. 1981); Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.

(Continued on following page)

jurisdictions have specifically considered and upheld
monetary limits on governmental liability despite argu-
ments that such limits violate due process or equal pro-
tection guarantees of the United States Constitution or
various state constitutional provisions.

No state court of last resort has ruled invalid on due
process grounds general monetary limits on govern-
mental liability, under either the United States Constitu-
tion or any state constitution.”

(Continued from previous page)

1981); Estate of Cargill v. City of Rochester, 119 N.H. 661, 406
A.2d 704 (1979), appeal dismissed, 445 U.S. 921 (1980); Sambs v.
City of Brookfield, 97 Wis.2d 356, 293 N.W.2d 504 (1980), cert.
denied, 449 U.S. 1035 (1980); Stanhope v. Brown County, 90 Wis.
2d 823, 280 N.W.2d 711 (1979); Crowe v. John W. Harton Memo-
rial Hosp., 579 S.W.2d 888 (Tenn. App. 1979); City of Austin v.
Cooksey, 570 S.W.2d 386 (Tex. 1978); Nevada v. Kallio, 92 Nev.
665, 557 P.2d 705 (1976); Nevada v. Silva, 86 Nev. 911, 478 P.2d
591 (1970); Seifert v. Standard Paving Co., 64 Ill.2d 109, 355
N.E.2d 537 (1976), overruled on other grounds, Rossetti Contract-
ing Co. v. Court of Claims, 109 Ill.2d 72, 485 N.E.2d 332 (1985);
Hale v. Port ¢* Portland, 308 Or. 508, 783 P.2d 506 (1989); Sibley v.
Board of Supervisors, 462 So.2d 149 (La. 1985); and Consoli v.
Municipio de San Juan, 408 F.Supp. 384 (D. Puerto Rico 1975).

” Review of the three separate majority opinions in the 3-2
Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989) deci-
sion reveals no majority support even in Utah for the applica-
tion of a “quid pro quo” or “substitute remedy” test for
Substantive due process purposes. Only two members
approved a due process analysis; a third member disapproved
as inappropriate the application of any substantive due process
analysis. Id. at 360, 369. —

7

No state court of last resort has ruled invalid on
equal protection grounds general monetary limits on gov-
ernmental liability with the exception of the Montana
Supreme Court, which Shortly thereafter reversed itself.8

II. NO SUBSTANTIAL OR IMPORTANT QUESTION
OF FEDERAL LAW IS PRESENTED.

A. No substantial equal protection question is
presented.

The Petitioners assert that the Court has never
addressed the issue of the standard of equal protection
scrutiny to be applied to liability limitation laws. On the
contrary, the Court has adopted, and Colorado and
numerous other states have followed, a “rational basis”
test in evaluating equal protection challenges to such
laws. No need exists to address the issue in this case.

In Duke Power Co. v. Carolina Environmental Study
Group, 438 U.S. 59, 83 (1978), the Court adopted a rational
basis test in evaluating a liability limitation statute
against equal protection and due process challenges. In
that case, the Court upheld the Price-Anderson Act, a
federal statute limiting liability for nuclear incidents. The

° The Montana Supreme Court decision in Pfost v. Mon-
tana, 291 Mont. 206, 713 P.2d 495 (1985), while addressing equal
protection arguments, was based on an interpretation of the
access guarantee of the Montana Constitution subsequently
overruled in Meech v. Millhaven West, Inc., 238 Mont. 21, 776
P.2d 488 (1989).

Only two of the members of the Utah Supreme Court
thought equal protection principles would invalidate the par-
ticular Utah statute at issue in Condemarin, 775 P.2d at 369-370.

10

Court rejected the argument that an intermediate stan-
dard of review should be applied, describing the liability
limitations in the act as “a classic example of an economic
regulation ~ a legislative effort to structure and accommo-
date the burdens and benefits of economic life.” Id. at 83.
The Court stated that such acts “come to the Court with a
presumption of constitutionality,” and that the burden is
on the complaining party to “establish that the legislature
has acted in an arbitrary and irrational way.” Id. See also
Dandridge v. Williams, 397 U.S. 471, 485-486 (1970)
(upholding on the basis of rational basis test monetary
limitations on welfare grant amounts).

Citing Duke Power for the proposition that liability
limits are classic examples of economic regulation subject
to rational basis review, the Colorado Supreme Court
likewise applied a rational basis test to the Petitioners’
equal protection attack on the Act’s monetary minimums.
DeFoor, 824 P.2d at 787.

Petitioners assert incorrectly that a conflict exists
among the states as to the proper scrutiny level to be
applied in an equal protection analysis of a liability lim-
itation statute. While divergence exists among the states,
it reflects state law differences in the existence and nature
of the right under scrutiny - differences resulting from
the states’ interpretations of their own constitutions — not
disagreement as to the proper level of scrutiny. The diver-
gence is not the result of a conflict in federal law.

Some states recognize under the “access to court”
provisions of their constitutions a right to full recovery
for damages. See, e.g., Condemarin, 775 P.2d at 348; Trujillo
v. City of Albuquerque, 110 N.M. 621, 798 P.2d 571, 573

————————————————————— |

11

(1990). However, Colorado is not among those states.
DeFoor, 824 P.2d at 792. Colorado’s access guarantee,
Colo. Const. Art. II, §6, “merely provides that, if a right
does accrue unde; the law, the courts must be available to
effectuate that right.” Dove v. Delgado, 808 P.2d 1270, 1275
(Colo. 1991). It does not protect plaintiffs from the elim-
ination of a remedy, Goldberg v. Musim, 162 Colo. 461, 427
P.2d 698, 703 (1967), nor from limitations on liability,
Shoemaker v. Mountain States Tel. & Tel. Co., 38 Colo. App.
321, 559 P.2d 721, 723 (1976).

Because the nature of the interest at stake determines
the applicable equal protection test, states recognizing a
right to full recovery of damages under their own state
constitutions have used an intermediate level of scrutiny.
See, ¢.g., Trujillo, 798 P.2d at 573; Hanson v. Williams
County, 389 N.W. 2d 319 (N.D. 1986). In contrast, Colo-
rado and other states in which no such right is recognized
properly have used a rational basis standard of scrutiny.
See note 6 supra.

These differences reflect the exercise by the states of
their right to fashion their own liability rules. See Mar-
tinez v. California, 444 U.S. 277, 282 (1980). Petitioners do
not — and cannot - identify any overriding federal inter-
est that extinguishes that right. A state’s interest in “fash-
ioning its own rules of tort law is paramount to any
discernible federal interest, except perhaps an interest in
protecting the individual citizen from state action that is
wholly arbitrary or irrational.” Id.

12

B. No substantial due process question is pre-
sented.

The Petitioners assert that the Court should address
the question whether due process requires liability limita-
tion laws to provide a quid pro quo for any common law
remedies they supplant. However, this Court has
addressed this question in prior decisions, and the Colo-
rado Supreme Court’s holding is consistent with those
decisions.

Duke addressed the issue of a legislative quid pro quo.
The Court stated that “it is not at all clear that the Due
Process Clause requires that a legislatively enacted com-
pensation scheme either duplicate the recovery at com-
mon law or provide a reasonable substitute remedy.”
Duke, 438 U.S. at 88. The Court nuted:

Our cases have clearly established that “[a] per-
son has no property, no vested interest, in any
rule of the common law.” The “Constitution
does not forbid the creation of new rights, or the
abolition of old ones recognized by the common
law, to attain a permissible legislative object,”
despite the fact that “otherwise settled expecta-
tions” may be upset thereby. indeed, statutes
limiting liability are relatively commonplace
and have consistently been enforced by the
courts.

Id. [citations omitted]. See Martinez, 444 U.S. at 282.9

9 Petitioners cite Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 313 (1950) and Martinez, 444 U.S. at 281-282,

(Continued on following page)

eS «

13

Other decisions of this Court have addressed this
issue even more explicitly. For instance, in Munn v. Il1-
nois, 94 U.S. 113 (1876), the Court stated that the common
law is “no more sacred than any other” form of law.
Munn, 94 U.S. at 134. Similarly, in Arizona Copper Co. v.
Hammer, 250 U.S. 400 (1919), the Court stated that com-
mon law rules “are no more than rules of law, deduced by
the courts as reasonable and just, under the conditions of
Our Civilization... . They are not placed, by the Four-
teenth Amendment, beyond the reach of the state’s power
to alter them, as rules of future conduct and tests of
responsibility, through legislation designed to promote
the general welfare ....” Arizong Copper, 250 U.S. at 421.
See also Silver v, Silver, 280 U.S. 117, 122 (1929).

The proposition that common law rules deserve no
special protection from change is even more compelling
where, as in Coiorado, the common law was not pre-
served by the State Constitution but rather, was adopted
by the legislature by statute:

The common law of England so far as the same
is applicable and of a general nature, and all
acts and statutes of the British parliament, made
in aid of or to supply the defects of the common
law prior to the fourth year of James the First,
excepting the second section of the sixth chapter
of forty-third Elizabeth, the eighth chapter of
thirteenth Elizabeth, and the ninth chapter of

(Continued from previous page)

for the contention that their claim is property protected by the
Fourteenth Amendment’s Due Process Clause. However, nei-
ther decision supports this contention. At most, Martinez posed
such a proposition hypothetically. Id.

14

thirty-seventh Henry the Eighth, and which are
of a general nature, and not local to that king-
dom, shall be the rule of decision, and shall be
considered as of full force until repealed by
legislative authority.

Colo. Rev. Stat. §2-4-211.

Critical to Petitioners’ argument that due process
requires a quid pro quo analysis is the existence of a
property interest in a common law remedy. However, as
with Petitioners’ equal protection argument, the existence
of such an interest is dependent upon each state’s own
common law, constitutional, and statutory schemes. Upon
reviewing Colorado’s common law, constitutional and
statutory schemes, the Colorado Supreme Court found no
cognizable property interest in Petitioners’ claims.
DeFoor, 824 P.2d at 791-792; Vogts v. Guerrette, 142 Colo.
527, 351 P.2d 851, 857 (1960). Colorado does not recognize
a property interest in any particular remedy. Id. Thus, the
Colorado Supreme Court properly declined to apply any
quid pro quo analysis.

Ill. GRANTING CERTIORARI WOULD UNNECES-
SARILY PLACE IN QUESTION THE VALIDITY
OF THE MONETARY LIMITS AND ADVERSELY
AFFECT THE INSURANCE COVERAGES AVAIL-
ABLE TO GOVERNMENTAL ENTITIES.

As discussed in Section I supra, recent history has
shown that Colorado’s local governments are not the type
of clients desired by the commercial insurance market.
CIRSA’s members rely upon that market for certain
excess insurance or reinsurance coverages. The market in
turn relies upon the monetary limits in deciding whether

ee

15

to provide coverage and the scope of coverage. Any
threat to the validity of the limits, such as granting cer-
tiorari in this case, can affect the insurance market in
Colorado and elsewhere. No reason exists nor has any
reason been presented by Petitioners to warrant such a
result.

CONCLUSION -

This Court has rejected at least three separate oppor-
tunities to review state governmental liability limits in
which due process or equal protection issues were raised.
Estate of Cargill; Sambs; Smith. No reason exists to accept
the opportunity presented by the Petitioners in this case.

Respectfully submitted,

SusaN K. GriFFiITHs

(Counsel of Record)

Tami A. TANouE

GRIFFITHS & TaNoug, P.C.

Blake Street Terrace

1860 Blake Street, Suite 550
Denver, Colorado 80202

(303) 298-1601

Attorneys for amicus curiae CIRSA

June 29, 1992

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0744%3A2. Public record. Not legal advice.