Important update on toll road legislation
HB-1007's Unconstitutional Grant of Immunity

The short version: Giving immunity from lawsuits for past acts of negligence is retrospective and therefor unconstitutional.

The long version:
On Tuesday the House Transportation and Energy Committee held its hearing on HB-1343 which would dissolve all toll road corridors and enact a new process for approval of toll road projects. CDOT had opposed the original plan to
require every toll road proposal to enter a public-private initiative
agreement but they withdrew their objection when that process was amended. A lawyer for the Super Slab, David Foster, told the committee that the bill
was unconstitutional because it acted retrospectively (retroactively and
unfairly) which is forbidden by the state constitution Article II, Sec. 11.
His analysis was correct as far as it went but he ignored important factors
that go into the decision of whether a statute is retrospective. In 2006 the

Colorado Supreme Court gave a good explanation of the issue in City of
Golden v. Parker. See "Section III. Analysis" at
http://www.courts.state.co.us/supct/opinions/2005/05SC282.pdf A paragraph
from that opinion tells us what Mr. Parker didn't:

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." 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. In past cases, we have "appl[ied] a
balancing test that weighs public interest and statutory objectives against
reasonable expectations and substantial reliance."

But Foster's take on the issue seemed to be enough to give the committee the willies and it may be the death of the bill.

On Thursday the committee heard another toll road bill, HB-1007, which would

void the notices recorded with county clerks. It would also give immunity
from lawsuits for three categories of actions:
1. The act of preparing, filing, or recording the documents
2. The voiding of those documents
3. The inclusion or exclusion of toll road corridor information by title
insurers

The committee had apparently forgotten the constitutional concerns of two
days before. If not, they would have seen that the item #1, immunity for the filing of documents, is unconstitutionally retrospective. The first issue in that determination is whether the bill acts retroactively. The bill is intended to remedy the situation created by the Front Range Toll Road Company filing documents in 2006 and 2007. After the enactment of this bill companies will no longer file with county clerks. So #1 is always retroactive and never prospective. The other issue is whether the statute would impair a vested right. If the Super Slab filed the required documents
incorrectly (and they did in some cases), the landowners have a right to sue which is a vested right. A statute which denies them that right is retrospective and therefore unconstitutional.

In 2006 the Supreme Court of Georgia declared a newly enacted tort reform
statute to be unconstitutional because it prevented certain lawsuits even if

the injury occurred before the enactment date. There is a similar
controversy in Missouri (and probably elsewhere.) In 2007 the Colorado
Supreme Court issued its opinion in City of Colorado Springs v. Powell
( http://www.courts.state.co.us/supct/opinions/2005/05SC743-05SC746.pdf )
The issue was whether immunity from liability created by a 2003 statute was
retrospective and therefore unconstitutional. They determined that that
statute did not act retroactively so the statute was constitutional. But the case shows that the Colorado court would reject a statute barring lawsuits retroactively. That would be the case with HB-1007's immunity for acts that occurred in 2006 and 2007.

Item #2, immunity for voiding documents, would never be retroactive so there is no problem with it. But it seems unnecessary. The statute declares the
documents void and doesn't tell anyone to remove them or take other action.
So I don't know who could be at risk.

HB-1007 tells title insurers that they are not to include the voided
corridor documents in their reports and policies. But then item #3 gives
them immunity from lawsuits whether or not they obey the law. What's the
point of passing a law if there are no consequences for violating it?

So there are several problems with the immunity language in this bill. Most
importantly the unconstitutional attempt to bar lawsuits for wrongs already
committed by incorrectly filed disclaimers, maps and notices. That paragraph

should be deleted and the other two either deleted or made logical in some
way.

The committee passed the bill on a 10-2-1 vote. It now goes to the full
House. The bill is at www.stupidslab.com/HB08-1007TE_01.pdf

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Rob Dougherty
Pueblo County
www.stupidslab.com