Front Range Toll Road Warriors

According to the list of legislative decisions at the governor's website ( http://www.colorado.gov/governor ) he signed HB-1007 yesterday. Several of us spent time yesterday talking to the governor's staff and providing information by email but it may already have been signed.

If you have been considering a lawsuit against a toll road company for their negligence in incorrectly filing toll road corridor documents you should consult a lawyer. Courts have said that the taking away of a right to sue for actions in the past is a denial of due process, a taking without compensation and unconstitutionally retrospective. It is unfortunate that victims should have to overturn a state law as part of their lawsuit but history suggests they will succeed.

The inclusion of a disclosure requirement that doesn't fit under the title of the bill could be easily overturned but I don't know that anyone will bother to take that on. There is only one year to do that. After the legislature reenacts the 2008 legislation next year a single title violation can't be raised.

It remains to be seen if this bill will provide the panacea that its proponents have claimed. I'm skeptical. The state has chosen to legalize fraud as a way to keep the real estate moving. I'm also doubtful that the immunity for title insurers will give them the protection they expect. They will be representing that they have researched the public records and reported all issues of significance when they have actually omitted information. I'm sure there is a lawsuit in there somewhere.

Hopefully we will be able to actually eliminate toll road corridors in the future. That won't happen unless and until the legislature learns more about their constitutional powers to regulate corporations. They have the authority they need but it's clear that they don't want a civics lesson from me. When the President Pro Tem of the Senate says that any retroactive law guarantees a lawsuit you know that there is very little understanding at the Capitol. The Supreme Court is only one block away but it might as well be on the dark side of the moon for all that the governor and the legislature know about their interpretations of the state constitution. All it takes is a snowjob from a toll road lawyer to leave our elected officials paralyzed with fear. Until a member of the legislature is willing to take on the task of educating his colleagues I don't know how we can get a real solution to the problem.

Rob Dougherty
Pueblo County
www.stupidslab.com

Please refer to the previous entry (Rob Dougherty's Stupid Slab News) and contact Governor Ritter. Tell the Governor to veto HB08-1007.

HB-1007 passed it's final vote last week on the last day of the legislative session and will be going to the governor very soon. There is so much in this bill that is unprecedented, unethical and unconstitutional that he should veto it. We need as many people as possible to contact the governor and recommend that he veto HB-1007.

You can't send an email to the governor any more but you can enter a message for him at his website:
www.colorado.gov/apps/oit/governor/citizen/assistanceUtility/welcome.jsf
Choose "Request assistance" or "Share opinion" and type/paste your message into the box.

You can also call or send a fax to Governor Bill Ritter at Phone: 303-866-2471 or Fax: 303-866-2003

If you don't have a fax machine you can send one for free at www.faxzero.com . It will let you send a Word doc file or Acrobat pdf file, or you can type/paste a message into the box. The limit for a free fax is 3 pages.

I would like to think that the governor would reject this bill because it doesn't get to the source of a problem by eliminating the existing toll road corridors. You may want to mention that in your message but in case he decides to leave that choice to the legislature there are the problems with the bill that we've talked about all year plus a new problem that was included in the bill late in the session.

The primary long standing problems are:
1. HB-1007 unconstitutionally prohibits landowners from suing for events that occurred before the enactment of the bill (retroactive immunity).
2. HB-1007 directs title insurers to fraudulently omit toll road information from their title searches and policies.
And the new one is:
3. HB-1007 includes a subject which is not included in the title of the bill.

I won't re-hash the first two but the third is an issue which only came into play when the senate sponsor, Abel Tapia, added an amendment during a committee hearing on April 16. The amendment is 100% outside the title of the bill and that is not allowed by the state constitution.

Article V Section 21 of the constitution says, "no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." The title of HB-1007 limits the bill to the modification of private toll road laws passed in 2006. They could have chosen a broad title like "PRIVATE TOLL ROAD REQUIREMENTS" but they apparently wanted to strictly limit the subject matter of any amendments. And then in April it was the sponsors themselves who went outside of the title. The amendment adds a new section to the statutes which is unrelated to anything in the 2006 bills and it isn't even specific to toll roads. It requires that anyone selling real estate disclose "ANY PROPOSED OR EXISTING TRANSPORTATION PROJECT." That applies to city streets, county roads, state and federal highways, railroads, airports, RTD, and whatever. Those transportation projects are not covered by the title of HB-1007.

The Colorado Supreme Court has said of the clear, single title provision in the constitution, "it is to prevent surreptitious legislation, the insertion of enactments in bills which were not indicated by their titles, and to forbid the treatment of incongruous subjects in the same act" and "the purpose of this provision is to prevent surprise and deception through legislation pertaining to one subject under a title relating to another." Senator Tapia's disclosure amendment does exactly what the court says should be prevented. Real estate sales in every part of the state will come under a new requirement due to this bill and very few people were tracking it because the title said the bill concerned private toll road regulations from 2006.

The new section is titled "38-35.7-105. Disclosure of transportation projects." It follows four previous disclosure statutes:
"38-35.7-101. Disclosure - special taxing districts - general obligation indebtedness." The bill that enacted 38-35.7-101 is not available online.
"38-35.7-102. Disclosure - common interest community - obligation to pay assessments - requirement for architectural approval" was passed in 2005 as one section of a bill titled "CONCERNING INCREASED PROTECTION FOR HOMEOWNERS."
"38-35.7-103. Disclosure - methamphetamine laboratory" was passed in 2006 as the only section of a bill titled "CONCERNING MANDATORY DISCLOSURE IN CONNECTION WITH THE PURCHASE OF RESIDENTIAL REAL PROPERTY OF WHETHER THE PROPERTY HAS BEEN USED AS A METHAMPHETAMINE LABORATORY."
"38-35.7-104. Disclosure of potable water source - rules" was passed in 2007 as the only section of a bill titled "CONCERNING THE DISCLOSURE OF WATER SOURCES IN CONNECTION WITH THE SALE OF RESIDENTIAL REAL PROPERTY." Rep. Marsha Looper was the sponsor of the bill.

The new disclosure statute would be the only one that was slipped into a bill with an inapplicable title. Not all of the earlier bills passed the first time and there may have been other disclosure bills that have failed. But this one avoided the debate that should have taken place by being put in to an unrelated bill late in the session.

So, please contact Governor Ritter and ask him to veto HB-1007 because it doesn't eliminate the problems caused by existing toll road corridors, it unconstitutionally gives immunity for harm done in the past, it requires title insurers to give false reports, and it violates the single clear subject clause of the constitution.

Rob Dougherty
Pueblo County
www.stupidslab.com

When I first met Representative Marsha Looper, she was an ordinary property owner like you or me. I found her to be a hard working and sincere individual who seemed genuinely interested in stopping the Front Range Toll Road. Looper came into the toll road wars with some experience. She had been involved in the Excel power lines controversy a couple of years earlier where some believe that she worked so fervently in defense of property rights, that it was in part responsible for a heart attack that she experienced during that period.

In 2005, when all of the toll road coalitions began forming and we were all so afraid that Ray Wells was going to prevail with HB05-1030, a number of leaders began to emerge and Looper was initially the dominant voice among them. In 2005, Looper’s approach was aggressive and effective. She enlisted help from a number of people who had been involved on the Excel issue. These connections served her well because among them was John Malone, the one person with the means to make a significant impact. Malone provided the fledgling toll road movement with lobbyists and legal advice. Malone did not cede any real control over these resources to Looper and wisely stopped short of of trying to “buy” a solution for himself and his grateful neighbors. Instead, Malone knew that if an effective solution would be reached, it was going to take citizen participation.

It was during this period of time that the other coalitions were beginning to try and exert their opinions into the mix. Every group realized that they would have to meet with impacted landowners in their area, spread the word and raise funds. The next and perhaps most difficult step was to decide whether or not that their coalition wanted to follow Looper’s lead or perhaps travel another path. This began a series of confrontations and dissension among the groups. Reasonable minds could argue that Looper’s insistence for the unification under her banner might have been the best strategy, but not everybody found themselves in agreement with her methods. Looper developed a reputation for going about the Eastern Plains, calling meetings and whipping crowds into a near frenzy. Just at what she felt was the right moment, she would ask for cash to fight the good fight. The people trusted in her and the money flowed into her coalition’s coffers.

I was in attendance at a number of these early meetings and felt that the technique was reckless. People would talk about defending their properties with guns. Members of our group, the High Plains Coalition for Responsible Transportation Policy, became reluctant to ask people from the Elbert County area to write her checks. Our group chose to accept donations, but we wanted to raise funds without what appeared to us as the Looper fear tactics. It was also becoming increasingly more clear that Looper, while interested in taking money from other coalitions, was not the least bit interested in sharing in the decision making process with them. A rift began to form that exists to this day.

Marsha Looper likes to take a lot of credit for all of the things that occurred in the 2005 legislative session. To be sure her efforts were praiseworthy, but there were many others working on the cause with just as much passion and commitment. In my opinion, it was becoming increasingly more difficult by late May of 2005 for Looper to take advice or criticism. If others in the movement found themselves not in total agreement with her wishes, Looper began going out of her way to marginalize and smear those in her way. In the opinions of some, power was becoming more important than the message of property rights. Any method was justified, even when it had people in the press talking about those “crazy people” living on the plains.

People began talking about Marsha running an "initiative" that would be the example for others who might find themselves in similar straits. Some even speculated that Looper was going to use this issue as a springboard into Colorado politics. Over the next months, Looper continued on a path where she tried to get an initiative passed. A lot of dedicated people worked very hard to gather the necessary signatures for her. What was obviously a difficult task at best turned out to be a resounding failure. Some believe that money was the issue. Looper’s coalition was unable to continue to produce the large sums of money that they had experienced earlier. Some believe that she had counted on more funding from the benevolent Mr. Malone than was forthcoming. Whatever it was, when Looper became aware that she was not going to be able to garner enough signatures, she threw her volunteers and all of their hard work under the bus. She made statements to the effect that the initiative was always a long shot and she was never convinced that it would succeed. It was a stinging blow to many of her followers.

The 2006 legislative session for Looper was mildly successful in that she was still able to maintain the appearance that she was still a major player in the opposition to private toll roads. She was not happy with some of the other coalitions who had moved to establish a presence at the Capitol. She was not the driving force behind the Wiens bill or the Pommer bill that gave residents their first real protections against Ray Wells. By the end of her second session as a citizens’ advocate, it was apparent to many that she was comfortable with the ways of lobbyists, senators and representatives. She was now taking much more counsel from the likes of lobbyist Andrea Castro and others of that ilk than she was talking to the impacted residents. It was during this period that her desire to become a state representative was brought out into the light of day.

As someone who has now spent time doing double duty, trying to advocate for a coalition while simultaneously campaigning for office, I must admit that I was impressed by what Looper was able to accomplish in her run for the State House. I had no doubt she would be able to raise money based on her earlier escapades, but I was surprised when I saw just how much money she was willing to donate to her own campaign. It appeared that she wanted this job with all of its trappings of power and authority so badly she would have been willing to spend more on the campaign than the job actually paid. To some, that looked like a fervent desire to stand up for the people that elected her. Of course, anyone who has followed her career as a Colorado State Representative knows that she was driven by important motives. Representing the thousands of people whose properties she vowed to protect does not seem to be one of them.

The first toll road bill she tried to pass as a representative was HB07-1068. To say that she did not know what she was doing would be a gigantic understatement. She tried to convince the coalitions with which she still maintained positive relationship to trust her. Looper resorted to her earlier tactics of disenfranchisement. Looper asked that these friendly groups withhold information on what she was trying to accomplish from other meddlesome coalitions who might screw things up for her. When the HPCRTP was finally given the language of HB07-1068, we denounced it as a poor piece of legislation. Looper was happily forcing a wedge between the coalitions until everyone finally became aware that the bill was indeed horrible.

Looper then held out an olive branch and began working with all of the coalitions. I must say, I spent many hours on the bill and at one point was even asked by Looper to help the legislative drafter. Unfortunately Looper was convinced by lobbyists representing the title insurance industry, county clerks and David Foster (Superslab Attorney) that they had better ideas than the citizens. At the last moment, before anybody from the Eastern Plains had the language, a rewritten version made it to committee. Citizens testified in favor of the bill without knowing that Looper had sold them down the river and was making concessions to everybody but them. Before anyone was the wiser, Looper got her deceitful bill through to the Senate. Fortunately, the coalitions finally regrouped and convinced Senator Williams (senate sponsor) that she should pull the bill.

Looper was angry. Representative Buffie McFayden was openly hostile toward the coalitions for going against the House Transportation and Energy Committees recommendations. Ray Wells was angry. The lobbyists were unhappy. It was clear that the next session would be a bumpy and contentious ride. The gauntlet was dropped and we all went about trying to advocate for our respective coalitions. Looper on the other hand let no grass grow under her feet. She had HB08-1007, a near duplicate of the previous session’s bill in hand at the opening bell of the 2008 session.

This year, Marsha Looper did not even try to deceive the people of the Eastern Plains coalitions that she had any intentions of listening to what they wanted. This bill was reprehensible from the start. It was lobbied at an astronomical expense by developers, private toll road types, title insurers, and generally any industry that despises citizen involvement. Tricks were played, deadlines drawn out and smear campaigns instituted. No stone was left unturned. The bill went down to the wire on the final day and is now ready for the Governor’s signature.

The reasons that I would give to Governor Ritter not to sign this bill could fill a book. But if I had to pare it down to just a few they would be these:
• The lobbyist for the title insurance companies told the Military Affairs Committee that the bill needed to grant them immunity from law suits because the bill required them to commit fraud
• Retrospective immunity from lawsuits is unconstitutional
• The bill does not fit its title because it deals with things other than toll road legislation that needed to be fixed from 2006
• The notion of a toll road corridor and the financial devastation it might impose on thousands of innocent property owners is immoral

In conclusion, let me say that, in my opinion, Representative Marsha Looper is a complete disappointment. She had the support of thousands of impacted residents who were in need of a real champion. When it counted most, Looper turned her back on the weary masses and instead has chosen to protect the corporate interests of big development. She should be voted out of office for her deceit.

Robert Thomasson

On Friday the conference committee on HB-1007 held a second session and reached agreement on a new amendment to the bill. This amendment was then returned to the house and senate for their approval. The senate passed it on Friday on a 32-3 vote. It is on the schedule for the house to hear on Monday and there is little doubt that it will pass. Wednesday is the last day for the 2008 legislature so they will be done one way or the other by then.

The senate amendment added last week specified that any existing toll road corridor "IS VOID AND SHALL NOT BE DEEMED TO GIVE THE FILING TOLL ROAD OR TOLL HIGHWAY COMPANY ANY PROPERTY RIGHT OR EXCLUSIVE DEVELOPMENT RIGHT OF ANY KIND WHATSOEVER WITHIN THE CORRIDOR." The conference committee deleted the words "IS VOID" and amended the words "ANY KIND WHATSOEVER WITHIN THE CORRIDOR" to say that if the company meets the start of work requirements they will have the exclusive right to seek approval for the road.

Where the senate amendment would have eliminated existing corridors entirely, the committee amendment leaves them in existence but makes it more explicit that they only signify the first step of the approval process. There is really very little difference in the status of the existing corridors before and after this bill if it passes. Here are the differences as applied to the Super Slab.

Currently:
Front Range Toll Road Company has the exclusive right to develop the toll road subject to all of the required approvals.

If HB-1007 passes:
Front Range Toll Road Company has the exclusive right to seek all of the required approvals and if successful has the exclusive right to develop the toll road.

It's hard to believe that this slight difference will give much relief to depressed real estate prices. Only time will tell.

The bill still contains the immunity from lawsuits for toll road companies and title insurers and the requirement that title insurers omit any mention of toll roads in their searches and policies. The legislature was very concerned with protecting the "rights" of the Front Range Toll Road Company but not so much with the rights of the people who actually own the land in the corridor.

Rob Dougherty
Pueblo County
www.stupidslab.com

In a TRW Update dated April 29, 2008 we erroneously said that if the majority of the Conference Committee members voted to approve HB08-1007 with changes, that it went to the Governor's desk to be signed into law. That message neglected to point out that the Conference Committee's changes to the bill must first be approved by the House and the Senate. We apologize for any confusion.

Also, the Conference Committee meeting that took place yesterday morning regarding HB08-1007 was declared 'VOID' because Senator Cadman, a member of the Committee, was not present. So, it seems that the Committee will re-convene tomorrow morning and start all over slicing and dicing Senator Wiens' amendment out of the bill.

BTW: the 2008 Colorado Legislature adjourns next Wednesday, the 7th of May. All legislation must have completed its journey through the hallowed halls of the State Capitol by then.

The joint conference committee met this morning on HB-1007. They made some minor wording changes but primarily they have stripped the amendment that nullifies toll road corridors. We need to email the members of the senate and ask them to "adhere to the the senate version" of the bill.

The House has rejected the Senate amendment to HB-1007 which would eliminate all toll road corridors. The bill will now be heard by a joint conference committee tomorrow to see if they can arrive at an agreeable version. Considering the committee membership (Sens. Tapia, William, Cadman and Reps. Looper, McFadyen, Butcher) they will almost certainly strip the Wiens amendment out of the bill and send it back for a final vote. If that's how it goes we'll ask the house and senate to kill the bill and as a last resort we'll ask the Governor to veto it. The conference committee will be Weds., April 30 at 8:15 a.m. in Room 0109.

According to a recent article in the Pueblo Chieftain Senator Abel Tapia was told by legislative lawyers that "any measure that effects laws retroactively is a guarantee for a lawsuit." It is unbelievable (almost) that legislative lawyers would give such a mistaken report and disappointing that the President Pro Tem of the Senate wouldn't know better. The legislature passes bills every year which act retroactively or impose new obligations. The Colorado Supreme Court applies a number of tests to determine whether a retroactive statute is constitutional. Their criteria are listed below.

Note that the proposed elimination of the three-mile wide Super Slab corridor does not prevent the company from building the toll road, it just changes the procedure. Statutes which only effect procedures are not retrospective, they are constitutional. I've highlighted that and a few other relevant parts.

It seems to be only the proponents of this bill warning of a lawsuit. During committee testimony this year the Super Slab lawyer was asked if they would sue if their corridor were eliminated. He said that they have never discussed bringing a lawsuit.

Rob Dougherty
Pueblo County
www.stupidslab.com

This is the section of a 2006 Colorado Supreme Court case which explains the criteria for determining whether a retroactive statute is unconstitutional. The case, City of Golden v. Parker, can be read at

www.courts.state.co.us/supct/opinions/2005/05SC282.pdf

III. Analysis

Under the Colorado Constitution, the General Assembly is prohibited from enacting any law that is “retrospective in its operation . . . .” Colo. Const. art. II, § 11.

* * *

A. Retrospectivity

The general prohibition against retrospective legislation is intended to prevent any unfairness that might result from the application of new law to rights already in existence. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002). Legislation is presumed to operate prospectively unless there is legislative intent to the contrary. Id. Retroactive application of a law, although disfavored, is not necessarily unconstitutional and may be permitted if the law at issue effects a change that is procedural or remedial. Kuhn v. State, 924 P.2d 1053, 105657 (Colo. 1996). In order to distinguish legislation that is merely retroactive, we use the term “retrospective” only in regard to legislation that “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.” Ficarra v. Dep’t of Regulatory Agencies, 849 P.2d 6, 16 (Colo. 1993) (citations omitted)

We use a two-step inquiry to determine whether or not a law is retrospective in its operation. DeWitt, 54 P.3d at 854. First, we look to the legislative intent to determine whether the law is intended to operate retroactively. Id. We require a clear legislative intent that the law apply retroactively to overcome the presumption of prospectivity. Ficarra, 849 P.2d at 14. However, express language of retroactive application is not necessary to find that a law is intended to apply retroactively. Id.

If we find intent of retroactive application, the second step of the inquiry is to determine whether the retroactively applied law operates retrospectively. A law is retrospective if it either “(1) impairs a vested right, or (2) creates a new obligation, imposes a new duty, or attaches a new disability . . . .” DeWitt, 54 P.3d at 855. We consider each of these prongs of the retrospectivity analysis in turn. In regard to the first prong, we have found that a right is vested only when it has an “independent existence.” People v. D.K.B., 843 P.2d 1326, 1331 (Colo. 1993). A vested right may be derived from a statute or the common law, but “once it vests it is no longer dependent for its assertion upon the common law or statute under which it may have been acquired.” Ficarra, 849 P.2d at 15.

We do not employ a fixed formula or a brightline test for determining whether a right is vested. Id. at 17. Rather, we look to three factors: “(1) whether the public interest is advanced or retarded; (2) whether the statute gives effect to or defeats the bona fide intentions or reasonable expectations of the affected individuals; and (3) whether the statute surprises individuals who have relied on a contrary law.” DeWitt, 54 P.3d at 855.

A determination that retroactive application of a law impairs a vested right is not dispositive of the retrospectivity inquiry because such a finding “may be balanced against public health and safety concerns, the state’s police powers to regulate certain practices, as well as other public policy considerations.” Id. Retroactive application of a law that implicates a vested right is only permissible, however, if the law bears a rational relationship to a legitimate government interest. Id. In past cases, we have “appl[ied] a balancing test that weighs public interest and statutory objectives against reasonable expectations and substantial reliance.” Kuhn, 924 P.2d at 105960 (quoting Ficarra, 849 P.2d at 17).

If a vested right is not implicated, we consider the second prong of the analysis. Under this prong, “retrospectivity may result from the creation of a new obligation, imposition of a new duty, or attachment of a new disability with respect to” past transactions or considerations. Dewitt, 54 P.3d at 855. Application of a law is not deemed retrospective, however, “merely because the facts upon which it operates occurred before” its adoption. City of Greenwood Village, 3 P.3d at 445.

Because we review legislation with the presumption that it is constitutional, see, e.g., In re Submission of Interrogatories on House Bill 991325, 979 P.2d 549, 554 (Colo. 1999), our cases have not often found a law retrospective. However, we have prohibited retrospective application of a statute when the reasonable expectations and substantial reliance of a party vested prior to the enactment of the statute. Kuhn, 924 P.2d at 1060 (statute could not be retrospectively applied to defeat attorneys’ right to court-ordered reasonable fee paid out of common fund).