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

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## Record

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

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0744%3A3. Public record. Not legal advice.