Opposition Brief — Pacheco v. DeFoor (No. 91-1922)

No. 91-1922

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 199]

YVONNE E. DEFOOR, FRANK BOWEN et al.

Petitioners,

VS

THE STATE OF COLORADO et al..

Respondents

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

To the Colorado Supreme Court

Case No. 90SA351

GALE A. NORTON*

Attorney General

RAYMOND T. SLAUGHTER

Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General

PIMOTHY R. ARNOLD

Deputy Attorney General

GREGG E. KAY

First Assistant Attorney General

SIMON P. LIPSTEIN

Assistant Attorney General

Tort Litigation Section

Attorneys for Respondents

110 Sixteenth St., 10th Floor

Denver, Colorado 80202

Telephone: (303) 620-448]

*Counsel of Record

hi

Say Pie

sole a Ss ger Mae Sa

QUESTIONS PRESENTED FOR REVIEW

a Whether the Colorado Supreme Court correctly

determined that the rational basis standard of review applied to

Petitioner’s federal equal protection challenge to the limitations on

governmental liability in the Colorado Governmental Immunity Act?

4. Whether the Colorado Supreme Court correctly

determined that the limitations on governmental liability in the

Colorado Governmental Immunity Act do not deprive Petitioners of

their right to substantive due process of law?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ............ i

CONSTITUTIONAL AND STATUTORY PROVISIONS

ok oie as Aig WEG oot oS A wk 1

STATEMENT OF THE CASE AND FACTS .......... 3

pareemeeeeres Ge Mente CASES... .. 2.2.62 000s 4

REASONS WHY THE PETITION FOR CERTIORARI

RS BB) ss rr 4

A. No Conflict Exists Among the States

Regarding the Standard of Review Applicable

to Federal Equal Protection Clams. ....... 5

B. There is No Substantive Due Process Right

OO a Particular Remiedy. .............. 7

eg oe a ky eno ee 0 cw 8 10

2a

lv

TABLE OF AUTHORITIES

CASES PAGE

Bowers v. Hardwick, 478 U.S. 190, 192 (1986) .......... 7

Caman v. City of Stanford, 746 F. Supp. 248 (D. Conn.

NON oe ee cae ee ee ee 6

Cauley v. City of Jacksonville, 403 So.2d 379 (Fla. 1981) .... 6

Collins v. City of Harker Heights, Texas, 112 S.Ct. 1061 |

4)’ 5 Perera ee a Oy An ate 9

Colorado v. DeFoor, 824 P.2d 783 (Colo. 1992) ....... 5-10

Condemarin v. University Hospital, 775 P.2d 348 (Utah

FOOD ox kin so ieee ale 3 7, 10

Dandridge v. Williams, 397 U.S. 471 (1970) ............ 5

x

Duke Power Co. v. Carolina Environmental Study Group,

430 U5. @ CIT) oo 6 ck alee ee eee a

Evans v. Board of County Commissioners, 174 Colo. 97, 482

P.2i SR CT). 0 kok 6 eee 7,8

Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 Cal.

Rptr. 368, 695 P.2d 665 (1985), appeal dismissed,

S78 US. BB CR) 6 aie a 6 ea ee 7

Gibbes v. Zimmerman, 290 U.S. 326 (1933) ............ 8

Grimes v. Pearl River Valley Water Supply District, 930 F.2d

O01 Ga CW. TURE) nes ee eee 6

TABLE OF AUTHORITIES

CASES PAGE

Hale v. City of Portland, 783 P.2d 596 (Or. 1989) ........ 6

Lee v. Colorado Department of Health, 718 P.2d 221 (Colo.

ian PERE COROT PT ae ET Se 5,9

Leliefield v. Johnson, 104 Idaho 357, 659 P.2d 11] (1963) ... 6

Lienhard v. State, 431 N.W.2d 861 (Minn. 1988) ......... 6

Logan v. Zimmerman Brush Co., 455 U.S. 422 (E9GZ) ... « 36+ 9

Martinez v. California, 444 U.S. 277 (IFN. 6 cee 9

Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992) .... &

Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) ... 10

Ryszkiewicz v. City of New Britain, 479 A.2d 793 (Conn.

Sadler v. New Castle County, 524 A.2d 18 (Del. Super. Ct.

1987), affd., 565 A.2d 917 (Del. Phe i ree 6

Sambs v. City of Brookfield, 293 N.W.2d 504 (Wisc. 1980)... 6

Snyder v. City of Minneapolis, 441 N.W.2d (Minn. 1989) .... 6

Stout v. Grand Prarie Independent School District, 733

S.W.2d 290 (Tex. App. 1987), cert. denied 485 US.

ma? (OPES) sas ns ee eee 6

Trujillo v. City of Albequerque, 110 N.M. 621, 798 P2d 571

vi

TABLE OF AUTHORITIES

CASES : PAGE

ee ee ee te eae bee ee aeons 7

White v. Ainsworth, 62 Colo. 513, 163 P. 959 (1917) ...... 8

ilson v. Gipson, 753 P.2d 1349 (Okla. 1988) ........... 6

CONSTITUTIONS

Ce Se Re eG i se gee a es ce ee 8

STATUTES

Colo. Rev. Stat. § 24-10-102 (1988 Repl. Vol.) ... 1, 5, 6, 9, 10

Colo. Rev. Stat. § 24-10-114(1) (1988 Repl. Vol.) ........ 5

Colo. Rev. Stat. § 24-10-114(1)(b) (1988 Repl. Vol.) ...... 3,9

RULES

Cs, OO eek a ie a eee 3

vii

No. 91-1922

IN THE SUPREME COURT OF THE UNITED STATES

. October Term, 199]

YVONNE E. DEFOOR, FRANK BOWEN et al.,

Petitioners,

VS.

THE STATE OF COLORADO et al.,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

To the Colorado Supreme Court

Case No. 90SA351

Respondents, the State of Colorado, appear through counsel,

the Attorney General of Colorado, and urge the Court to deny the

Petition for Certiorari filed by Yvonne E. DeFoor et al.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

In addition to the constitutional and statutory provisions cited

by petitioners, this case involves Colo. Rev. Stat. § 24-10-102 (1988

Repl. Vol.) which provides:

24-10-102. Declaration of policy. It is recognized

by the general assembly that the doctrine of sovereign

immunity, whereunder the state and its political

Subdivisions are often immune from suit for injury

suffered by private persons, is, in some instances, an

inequitable doctrine. The general assembly also

recognizes that the supreme court has abrogated the

doctrine of sovereign immunity effective July 1,

1972, and that thereafter the doctrine shall be

recognized only to such extent as may be provided by

statute. The general assembly also recognizes that the

State and its political subdivisions provide essential

public services and functions and that unlimited

liability could disrupt or make prohibitively expensive

the provision of such essential 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 recognized 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. It is further

recognized that the state, its political subdivisions,

and the public employees of such public entities, by

virtue of the services and functions provided, the

powers exercised, and the consequences of unlimited

liability to the governmental process, should be liable

for their actions and those of their agents only to

such an extent and subject to such conditions as are

provided by this article. The general assembly also

recognizes the desirability of including within one

article all the circumstances under which the state,

any of its political subdivisions, or the public

employees of such public entities may be liable in

2

actions which lie in tort or could lie in tort regardless

of whether that may be the type of action or the form

of relief chosen by a claimant and that the distinction

for liability purposes between governmental and

proprietary functions should be abolished.

STATEMENT OF THE CASE AND FACTS

This case is an interpleader action, brought pursuant to Colo.

R. Civ. P. 22, intended to permit the trial court to determine the

appropriate distribution of the maximum amount available from the

Colorado Risk Management Fund for tort claims against the State of

Colorado arising from a single occurrence. The case derives from a

catastrophic accident on U.S. Highway 40 in Grand County,

Colorado, on August 10, 1987. A Colorado Department of Highways

employee was removing a large rock from the roadside when the rock

rolled down a hillside and struck a tour bus on the road below. Nine

people were killed and 19 others were injured. Subsequently, the

Office of the Colorado Attorney General received numerous notices

of claim pursuant to the Colorado Governmental Immunity Act for

damages resulting from this accident. The damages claimed far

exceeded the $400,000 statutory limit of liability, established by the

Colorado General Assembly in Colo. Rev. Stat. § 24-10-114(1)(b)

(1988 Repl. Vol.).

In the trial court, Petitioners moved for summary judgment

on the grounds that the limitation of liability statute was

unconstitutional as violative of their equal protection and substantive

due process rights, among other grounds asserted. Petitioners argued

that the court should apply heightened, or intermediate, scrutiny in its

analysis of their constitutional claims. The trial court declined to do

so and applied the rational basis standard of review. The trial court

found the statute constitutional and not violative of equal protection

guarantees or the right to substantive due process of law.

3

Petitioners appealed directly to the Colorado Supreme Court.

On February 3, 1992, that court affirmed the decision of the trial

court. In doing so, the court applied the rational basis standard of

review and found no violation of equal protection guarantees or

substantive due process rights. This decision is published at 824 P.2d

783.

STATEMENT OF RELATED CASES

In case number 91-1877, individual Colorado Department of

Highways employees, who were brought into this case as third-party

defendants by Petitioners, filed a petition for certiorari relative to the

Colorado Supreme Court decision referenced above, on the issue of

the validity of the civil rights claims asserted against them and their

entitlement to qualified immunity from those claims.

REASONS WHY THE PETITION FOR

CERTIORARI SHOULD BE DENIED

The Petitioners fail to establish any important federal issues

which are worthy of consideration by this Court. The decision of the

Colorado Supreme Court below is in full accord with the applicable

federal Constitutional standards; the history of governmental

immunity in Colorado provided the court below with ample precedent

for its decision; and the result is accurate.

A. No Conflict Exists Among the

States Regarding the Standard of

Review Applicable to Federal

Equal Protection Claims.

In Duke Power Co. y. Carolina Environmental Study Group,

438 U.S. 65 (1978) this Court addressed the issue of the applicable

standard of review for statutes which limit liability to persons seeking

to recover damages for personal injuries. The appellees in Duke

Power made the same argument to this Court that the present

petitioners make regarding the appropriate standard of review

applicable to their federal equal protection claim: "Appellees,

however, urge a more elevated standard of review on the grounds that

the interests jeopardized by the Price-Anderson Act ‘are far more

important than those in the economic due process and

business-oriented cases’ where the traditional rationality standard has

been invoked." 438 U.S. at 84.

The argument for an elevated standard of review was rejected

by the Court on the basis of its understanding of the intent of

Congress when the Price-Anderson Act was passed. The Court found

that Congressional intent governed the characterization of the liability

limitation provision as an economic regulation reflecting “a legislative

effort to structure and accommodate ‘the burdens and benefits of

economic life.’". Id. This precise analysis was applied by the

Colorado Supreme Court in reaching its conclusion that petitioners’

federal equal protection claims should be subject to rational basis

review. Colorado v. DeFoor, 824 P.2d 783, 787-790 (Colo. 1992).

Relying upon the legislative declaration of policy in Colo. Rev. Stat.

§ 24-10-102 (1988 Repl. Vol.), its prior decision in Lee v. Colorado

Department of Health, 718 P.2d 221, 227-28 (Colo. 1986), and this

Court’s decision in Dandridge v. Williams, 397 U.S. 471, 485

(1970), the Colorado Supreme Court found that Colo. Rev. Stat.

§ 24-10-114(1) (1988 Repl. Vol.) is "rationally related to the

legitimate state interests of fiscal solvency and provision of essential

5

services while minimizing taxpayer burdens." 824 P.2d at 790. The

Colorado Governmental Immunity Act reflects the efforts of the

Colorado General Assembly to structure and accommodate the

burdens and benefits of economic life in Colorado. Colo. Rev. Stat.

§ 24-10-102 (1988 Repl. Voi.)

Other courts have considered statutes limiting recovery from

governmental tortfeasors, applied the rational basis test and found that

the statutes met the federal Constitutional standard: Grimes v. Pearl

River Valley Water Supply District, 930 F.2d 441 (Sth Cir. 1991);

Caman v. City of Stanford, 746 F. Supp. 248 (D. Conn. 1990): Hale

v. City of Portland, 783 P.2d 596 (Or. 1989); Snyder vy. City of

Minneapolis, 441 N.W.2d (Minn. 1989); Lienhard y. State, 431

N.W.2d 861 (Minn. 1988): Wilson v. Gipson, 753 P.2d 1349 (Okla.

1988); Sadler v. New Castle County, 524 A.2d 18 (Del. Super. Ct.

1987), affd., 565 A.2d 917 (Del. 1989); Stout v. Grand Prarie

Independent School District, 733 $.W.2d 290 (Tex. App. 1987), cert.

denied 485 U.S. 907 (1983): Ryszkiewicz v. City of New Britain, 479

A.2d 793 (Conn. 1984); Leliefield v. Johnson, 104 Idaho 357, 659

P.2d 111 (1983); Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.

1981); Sambs v. City of Brookfield, 293 N.W.2d 504 (Wisc. 1980).

In many of these cases, the plaintiff urged the court to apply

intermediate scrutiny to their federal equal protection claim on the

basis that recovery of damages for personal injuries was an important

right even though no fundamental right or suspect classification was

implicated by the challenged statute. The federal district court in

Connecticut placed this argument in the proper perspective when it

found that the right to recover for personal injuries is an "important

substantive right" and applied the rational basis test. Caman, supra,

746 F. Supp. at 250. In each of the cited cases, the standard of

' A particularly apt discussion of the basis for the important substantive

right argument and the application of the rational basis test to a statute

limiting non-economic damages can be found in Murphy v. Edmonds, 325

Md. 342, 601 A.2d 102, 108-13 (1992).

6

review set forth by this Court in Duke Power was applied. The two

state courts that applied heightened scrutiny to equal protection

challenges to” governmental immunity statutes did so pursuant to

provisions of their respective state constitutions, without reference to

federal standards. See: Condemarin v. University Hospital, 775 P.2d

348, 352-56 (Utah 1989); Trujillo v. City of Albequerque, 798 P.2d

571, 573-578 (N.M. 1990). There exists no conflict among the states

regarding the correct standard of review applicable to federal equal

protection challenges.”

B. There is No Substantive Due

Process Right to a Particular

Remedy.

The substantive component of the right to due process of law

protects those rights deemed fundamental and deeply rooted in the

history and tradition of this nation. Bowers v. Hardwick, 478 U.S.

190, 192 (1986). There is no fundamental right to full recovery of

tort damages. Duke Power, supra. Nor is there a vested property

right to a particular measure of damages. Fein v. Permanente

Medical Group, 38 Cal.3d 137, 211 Cal. Rptr. 368, 695 P.2d 665,

679 (1985), appeal dismissed, 478 U.S. 892 (1985).

Petitioners mistakenly characterize the prospective abrogation

of the judicially recognized doctrine of sovereign immunity by the

Colorado Supreme Court in Evans v. Board of County

"Rational basis review by the Colorado Supreme Court is clearly

_ different from the "extremely deferential" review by the Utah Supreme Court

under its state constitution and the "largely toothless" review by the New

Mexico Supreme Court under its state constitution. DeFoor, supra, 824

P.2d at 787 n.4; Condemarin v. University Hospital, 775 P.2d 348, 354

(Utah 1990); and Trujillo v. City of Albequerque, 110 N.M. 621, 798 P.2d

571, 578 (1990).

Commissioners, 174 Colo. 97, 482 P.2d 968 (1971), as establishing

common law remedies for governmental torts. To the contrary, the

Evans court explicitly recognized that, thereafter, the sole source of

any remedies for governmental torts would be legislative enactments

of the Colorado General Assembly. 482 P.2d at 972. The Evans

opinion clearly establishes that there was no common law remedy for

governmental torts in Colorado prior to 1971. In response to Evans,

the Colorado General Assembly exercised its authority, Colo. Const.

art. V, § 33, and enacted the Colorado Governmental Immunity Act

in 1972.

a In its decision below, the Colorado Supreme Court recognized

that both the federal and Colorado due process clauses create a

property right in a cause of action but not in a particular remedy.

DeFoor, supra, 824 P.2d at 792, citing Gibbes v. Zimmerman, 290

U.S. 326, 332 (1933) and White v. Ainsworth, 62 Colo. 513, 522,

163 P. 959, 962 (1917). Petitioners continue to confuse the right to

a cause of action with the right to a specific remedy. In the absence

of a right to a particular remedy, Petitioners have no cognizable

property interest protected by the Due Process Clause beyond the

limits of liability in the Colorado Governmental Immunity Act.

Nevertheless, Petitioners argue that the remedial Statutory

sciieme embodied in the Colorado Governmental Immunity Act fails

to provide an adequate substitute for theér ephemeral right to "full

recovery" for the damages they suffered as~a result of the

governmental tort underlying this case. Petitioners claim that an

inadequate factual record was presented to the Colorado General

Assembly when it considered setting the limits of liability for the

State’s public entities. Determination of this question of fact will

require that this Court delve into the legislative history of the

Colorado Governmental Immunity Act as reflected by the record.

The record establishes that from the time Colorado was forced to

insure itself in 1985, because no commercial insurance company

would underwrite the state’s insurance needs, until August 1987, no

claim paid by or judgment entered against Colorado approached the

8

established limit of liability in Colo. Rev. Stat. § 24-10-114(1)(b),

(Repl. Vol. 1988).

In the two cases challenging the limits of liability, the

Colorado Supreme Court endorsed the legislative policy stated in the

Governmental Immunity Act, at Colo. Rev. Stat. § 24-10-102 (1988

Repl. Vol.), that the purpose of the act is to provide "fiscal certainty

in carrying out the manifold responsibilities of government."

DeFoor, supra, 824 P.2d at 790; Lee v. Colorado Department of

Health, 718 P.2d 221, 226 (Colo. 1986). On this basis, the court

concluded that the aggregate limit of liability is "rationally related to

the legitimate state interests of fiscal solvency and provision of

essential services while minimizing taxpayer burdens." DeFoor, 824

P.2d at 790. .

Considering the substantive due process standard that

governmental decisions may not be made arbitrarily, this Court stated

recently that there is a

"\.. presumption that the administration of

Government programs is based upon a rational

decisionmaking process that takes account of

competing social, political, and economic forces.

(Citation omitted.) Decisions concerning the

allocation of resources to individual programs ..

involve a host of policy choices that must be made by

locally elected representatives, rather than federal

judges interpreting the basic charter of Government

for the entire country."

Collins v. City of Harker Heights, Texas, 112 S.Ct. 1061, 1070

(1992). In the absence of wholly arbitrary state action, this Court has

consistently admonished federal courts that they have no authority to

pass judgment on the wisdom of underlying policy determinations of

state legislatures. E.g., Logan v. Zimmerman Brush Co., 455 U.S.

422, 433 (1982); Martinez v. California, 444 U.S. 277, 283 (1980).

9

The Petitioners request that the Court ignore this principle of our

federal system of government. The limit of liability in the Colorado

Governmental Immunity Act reflects an allocative decision within the

constitutional powers of the state legislature designed to achieve the

stated goal of protecting against the risk of substantial Curtailment of

governmental functions which unlimited liability would create. Colo.

Rev. Stat. § 24-10-102 (1988 Repl. Vol.).

Characterization of the decision in Condemarin, supra. as

creating a conflict between the states is, again, mistaken. The

conclusion of the Utah Supreme Court plurality that extension of

governmental immunity, including limited liability, to a university

hospital was arbitrary and impermissible is not in conflict with the

decision of the Colorado Supreme Court in DeFoor. The Utah Court

based its decision solely on the state constitution and Clearly stated

that it found federal law neither binding nor helpful. 775 P.2d at 357

n.7. When one state interprets its constitution more Strictly than the

federal standard, there is no conf] ict with another state that meets the

federal standard; states may adopt constitutional provisions more

expansive than those in the federal Constitution. Pruneyard Shopping

Center v. Robins, 447 U.S. 74, 81 (1980). No state or federal court

has found a federal substantive due process right to unlimited

compensation for governmental torts. The Colorado Supreme Court

accurately applied the federal substantive due process standard.

CONCLUSION

The petition for certiorari should be denied.

GALE A NORTON*

Attorney General

RAYMOND T. SLAUGHTER

10

Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General

TIMOTHY R. ARNOLD

Deputy Attorney General

GREGG E. KAY

First Assistant Attorney General

SIMON P. LIPSTEIN

Assistant Attorney General

Tort Litigation Section

Attorneys for Respondents

110 Sixteenth Street, 10th Floor

Denver, Colorado 80202

Telephone: 620-4481

*Counsel of Record

11