City of Colorado Springs v. Powell

• Decision Date: 09 April 2007
• Docket Number: No. 05SC746.,No. 05SC743.,05SC743.,05SC746.
• Citation: 156 P.3d 461
• Parties: CITY OF COLORADO SPRINGS, a home rule municipality, Petitioner v. Valerie POWELL, a natural parent of decedent; Steven Powell, individually; and James Powell, a minor, by and through his conservator, Mark Elliott. City of Longmont, Petitioner v. Judith Henry-Hobbs, Respondent.
• Court: Colorado Supreme Court

156 P.3d 461

CITY OF COLORADO SPRINGS, a home rule municipality, Petitioner v. Valerie POWELL, a natural parent of decedent; Steven Powell, individually; and James Powell, a minor, by and through his conservator, Mark Elliott.

City of Longmont, Petitioner v. Judith Henry-Hobbs, Respondent.

No. 05SC743.

No. 05SC746.

Supreme Court of Colorado, En Banc.

April 9, 2007.

Patricia K. Kelly, City Attorney/Chief Legal Officer, Shane White, Senior Attorney, Colorado Springs, Colorado, Attorneys for Petitioner City of Colorado Springs.

Hall & Evans, L.L.C., David R. Brougham, Thomas J. Lyons, Denver, Colorado, Attorneys for Petitioner City of Longmont.

Melat, Pressman & Hogbie, LLP, Glenn S. Pressman, P.C., Glenn S. Pressman, Colorado Springs, Colorado, Attorneys for Respondents Valerie Powell, Steven Powell and James Powell.

Karen Colburn, Roger Fraley, Jr., Denver, Colorado, Attorneys for Respondent Judith Henry-Hobbs.

Chief Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari in these cases to review the court of appeals' determination that House Bill 03-1288 operates only prospectively. The bill amended the exemption from liability in the Colorado Governmental Immunity Act regarding sanitation facilities of governmental entities. We affirm the court of appeals and hold that House Bill 03-1288 does not apply in determining the rights and liabilities at issue in cases arising before the effective date of the act, July 1, 2003. Specifically, the new law does not apply to the pending litigation brought by Valerie Powell on her own behalf, as well as on behalf of her sons, James Powell and Steven Powell, deceased, against the City of Colorado Springs. Likewise, House Bill 03-1288 does not apply in the wrongful death action brought by Judith Henry-Hobbs against the City of Longmont following the death of her son, Michael Henry.

I. Facts and Procedural History

On August 4, 1997, twelve-year-old James Powell and five-year-old Steven Powell fell into a storm water drainage ditch, by which they had been playing. While James was able to pull himself from the swollen waters of the ditch, Steven was not; his body was later found downstream. Under similarly tragic circumstances, on August 13, 1997, ten-year-old Michael Henry drowned in a Longmont irrigation ditch while he was tubing in the spillway. The facts of each accident are described in more detail in our earlier opinions, which are cited and discussed later in this opinion.

Valerie Powell ("Powell") filed suit against the City of Colorado Springs and N.S. Properties, owner of the property, asserting negligent operation and maintenance of the ditch and alleging the ditch constituted a dangerous condition. Meanwhile, Judith Henry-Hobbs ("Henry-Hobbs"), mother of Michael Henry, brought a separate wrongful death action against the City of Longmont, which owned shares in the ditch and maintained the spillway pursuant to an agreement with the ditch's owner.

Both the City of Colorado Springs and the City of Longmont ("Petitioners") filed motions to dismiss in these cases, challenging the jurisdiction of the respective courts and claiming immunity under the Colorado Governmental Immunity Act ("CGIA"), sections 24-10-101 to -120, C.R.S. (2001). Powell and Henry-Hobbs, however, each claimed the relevant ditch constituted a "sanitation facility" under section 24-10-106, which waives sovereign immunity for tort claims arising from the operation and maintenance of a public sanitation facility or a dangerous condition of the facility. Both trial courts denied the motions to dismiss, concluding there were sufficient allegations in the complaints to provide the courts with subject matter jurisdiction.

These rulings were affirmed on interlocutory appeal by the court of appeals and again by this court. Powell v. City of Colorado Springs, 25 P.3d 1266 (Colo.App.2000), aff'd City of Colorado Springs v. Powell, 48 P.3d 561 (Colo.2002) ("Powell I"); Henry-Hobbs v. City of Longmont, 26 P.3d 533 (Colo.App. 2001), aff'd City of Longmont v. Henry-Hobbs, 50 P.3d 906 (Colo.2002) ("Henry-Hobbs I"). In Powell I, we held that a drainage ditch qualified as a "sanitation facility" under the CGIA. We echoed this ruling two weeks later in Henry-Hobbs I, in which we determined that the irrigation ditch at issue constituted a sanitation facility for the purposes of the CGIA because the city used the ditch as part of its storm drainage system. Because the operation of "sanitation facilities" is not accorded protection from governmental immunity under the CGIA, we concluded in both cases the Petitioners were subject to suit.

In response to these two decisions, the General Assembly passed House Bill 03-1288 ("H.B. 1288"), which adds new definitions under the CGIA. See ch. 182, § 24-10-103(5.5), 2003 Colo. Sess. Laws, 1343-44. As pertinent here, H.B. 1288 defines "public sanitation facility" as "structures and related apparatus used in the collection, treatment, or disposition of sewage or industrial wastes of a liquid nature that is operated and maintained by a public entity." H.B. 1288, § 5.5. More salient, the legislation lists a number of items excluded from the definition of "public sanitation facility," including natural watercourses and drainage ditches. This definition of "public sanitation facility" directly countermands the definition supplied in Powell I and Henry-Hobbs I. By its terms, H.B. 1288 took effect on July 1, 2003. See ch. 182, § 24-10-103, 2003 Colo. Sess. Laws, 1344.

Shortly following passage of H.B. 1288, Petitioners filed new motions to dismiss in their respective cases, arguing that the newly-adopted legislation applies retroactively by excluding storm water drainage ditches from the definition of "public sanitation facilities" and therefore bestows immunity on Petitioners. Both trial courts agreed and granted Petitioners' motions. Powell and Henry-Hobbs appealed, and their cases were consolidated before the court of appeals for oral argument. In a published opinion, the court of appeals reversed the trial court decision. Powell v. City of Colorado Springs, 131 P.3d 1129 (Colo.App.2005). That day, the same division of the court of appeals issued an opinion concerning the same legal issue in Henry-Hobbs v. City of Longmont, No. 03CA2187, slip op. at 1, 2005 WL 2157396 (Colo.App. Sept.8, 2005), relying on the analysis set forth in Powell and reaching the same result. We now affirm the court of appeals' conclusion that H.B. 1288 applies only prospectively.

II. Retroactivity Analysis

Absent legislative intent to the contrary, we presume a statute operates prospectively. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo.2002); Coffman v. State Farm Mut. Auto. Ins. Co., 884 P.2d 275, 279 (Colo. 1994); Ficarra v. Dep't of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 11-12 (Colo. 1993). We make this presumption in accordance with statutory and common law guidance mandating that unless intent to the contrary is shown, legislation shall apply only to those transactions occurring after it takes effect. § 2-4-202, C.R.S. (2006); In re Estate of DeWitt, 54 P.3d at 854. This presumption is rooted in policy considerations, namely the notion of fair play and the desire to promote stability in the law.

As a corollary, retroactive application of a statute is generally frowned upon by both common law and statute. Ficarra, 849 P.2d at 11. A statute is considered retroactive if it applies to transactions that have already occurred or to rights and obligations that existed before its effective date. Id. Although disfavored, retroactive changes in the case law are permitted, and the retroactive application of a statute is not necessarily unconstitutional. Only "retrospective" legislation is constitutionally prohibited. Colo. Const. art. II, § 11 (prohibiting the General Assembly from passing retrospective legislation) (emphasis added); People v. D.K.B., 843 P.2d 1326, 1332 (Colo.1993).

A statute is retrospective if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." In re Estate of DeWitt, 54 P.3d at 854 (quoting Denver S. Park & Pac. Ry. Co. v. Woodward, 4 Colo. 162, 167 (1878)). This proscription is intended to prevent the unfairness that would otherwise result from changing the consequences of an act after that act has occurred. Van Sickle v. Boyes, 797 P.2d 1267, 1271 (Colo.1990).

In assessing a statute under the retrospectivity provision of our constitution, we utilize a two-step inquiry. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 444 (Colo.2000). First, we must determine whether the General Assembly intended the challenged statute to operate retroactively. Id. Second, if we ascertain that the General Assembly intended retroactivity, we then determine whether the challenged statute is unconstitutionally retrospective. Id.

After reviewing the relevant facts and procedure in the cases now before us, however, we determine that the General Assembly did not intend H.B. 1288 to be applied retroactively. Based on this determination, we need not address whether application of H.B. 1288 to the facts of these two cases would be constitutionally retroactive or impermissibly retrospective.

III. Legislative Intent

Petitioners argue that H.B. 1288 was not a change to the existing law but merely a clarification of it and, as such, H.B. 1288 may be relied upon to determine what rights and immunities exist under the original act. See Acad. of Charter Schs. v. Adams County Sch. Dist. No. 12, 32 P.3d 456, 464 (Colo.2001); People v. Covington, 19 P.3d 15, 21 (Colo. 2001); 1A Norman Singer, Sutherland Statutory Construction, section 22.30, at 268 (5th ed.1992).

A legislative amendment either clarifies or changes existing law, and we presume that by amending the law the legislature...