Trinity Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss
Publication year | 2004 |
Pages | 91 |
Citation | Vol. 33 No. 12 Pg. 91 |
2004, December, Pg. 91. Trinity Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss
Vol. 33, No. 12, Pg. 91
The Colorado Lawyer
December 2004
Vol. 33, No. 12 [Page 91]
December 2004
Vol. 33, No. 12 [Page 91]
Specialty Law Columns
Government and Administrative Law News
"Trinity" Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss
by Debra Asimus Overn
Government and Administrative Law News
"Trinity" Hearings: Understanding Colorado Governmental Immunity Act Motions to Dismiss
by Debra Asimus Overn
This column provides information to attorneys dealing with
various state and federal administrative agencies, as well as
attorneys representing public or private clients in the areas
of municipal, county, and school or special district law
Column Editors
Carolynne C. White, of Brownstein Hyatt & Farber, P.C
(303) 223-1197, cwhite@bhf-law.com; Brad Bailey, Assistant
City Attorney, City of Littleton - (303) 795-3725, bbailey@
littletongov.org; Tiffanie Bleau, Denver, an attorney with
Light, Harrington & Dawes, P.C. - (303) 298-1601,
tbleau@lhdlaw.com
About The Author:
This month's article was written by Debra Asimus Overn,
Denver, Assistant City Attorney with the Denver City
Attorney's Office - (303) 342-2561,
Debra.Overn@diadenver.net.
Procedure and proof for motions to dismiss based on the
Colorado Governmental Immunity Act differ significantly from
other motions to dismiss. This article analyzes common areas
of confusion about the Act and discusses the seminal Trinity
case. It addresses issues litigators on either side of a case
against a public entity should consider.
The Colorado Governmental Immunity Act ("CGIA")1
provides state public entities with immunity from causes of
action that "lie in tort or could lie in tort."2
The CGIA is a unique statutory creation; therefore, procedure
and proof for motions to dismiss based on the CGIA differ
significantly from more "routine" motions to
dismiss with which most litigators are familiar.
Many aspects of the CGIA are difficult to apply - from basic
issues, such as what claims "could lie in tort," to
more academic concepts, such as the differences between
motions under Colorado Rules of Civil Procedure
("C.R.C.P.") 12(b)(1) versus 12(b)(5). Even
experienced judges and litigators can be confused by these
differences.
Much misunderstanding has been caused by CRS § 24-10-108,
which states, "If a public entity raises the issue of
sovereign immunity," the court shall "decide such
issue on motion." In Trinity Broadcasting of Denver,
Inc. v. City of Westminster,3 the Colorado Supreme Court
interpreted CGIA § 108 as requiring courts to resolve the
jurisdictional facts raised by a claim of immunity prior to
trial through an evidentiary hearing, if necessary. In 2003,
the Colorado Supreme Court expanded the role of what have
come to be called "Trinity" hearings to include
determination of all facts related to a CGIA defense,
"regardless of whether the immunity issue is
jurisdictional."4 As a result, Trinity hearings are
likely to become more common.
This article provides an overview of CGIA and Trinity
hearings and analyzes common sources of confusion about
Trinity hearings. Also discussed are issues litigators should
consider in the early stages of any case involving a claim
against a public entity.5
Origins of the CGIA
Before 1971, Colorado courts assumed state public entities
were immune from tort claims through the doctrine of
"sovereign immunity," unless constitutional or
statutory provisions waived that immunity.6 However, in 1971,
the Colorado Supreme Court abrogated that common law immunity
through a trio of cases and asked the legislature to
determine whether and to what extent public entities should
be immune from suit.7 The legislature responded by enacting
the CGIA, which partially reestablished tort immunity8 for
public entities9 for all actions that "lie in tort or
could lie in tort."10
The CGIA provides six exceptions and waivers to that
immunity.11 However, it then limits the amount of recovery
available on permitted claims and imposes detailed procedural
requirements, including specific notice procedures, which
must be followed before claims may be brought.
Facts About C.R.C.P. 12(b)(1) Motions and the CGIA
Trinity hearings are conducted under C.R.C.P. 12(b)(1), not
C.R.C.P. 12(b)(5), which is the more familiar rule. The CGIA
adds its own twists. With C.R.C.P. 12(b)(1) motions based on
the CGIA:
1. The burden of proof is on the non-moving party.
2. The plaintiff is not entitled to favorable inferences, unless he or she presents evidence on a point.
3. Allowing evidence beyond the statements in the pleadings does not convert the motion to one for summary judgment.
4. Non-jurisdictional facts must be determined, as well as jurisdictional facts.
5. The judge is the sole finder of fact, even for non-jurisdictional facts.
Remember: One motion can include requests for dismissal under both C.R.C.P. 12(b)(1) and 12(b)(5).
2. The plaintiff is not entitled to favorable inferences, unless he or she presents evidence on a point.
3. Allowing evidence beyond the statements in the pleadings does not convert the motion to one for summary judgment.
4. Non-jurisdictional facts must be determined, as well as jurisdictional facts.
5. The judge is the sole finder of fact, even for non-jurisdictional facts.
Remember: One motion can include requests for dismissal under both C.R.C.P. 12(b)(1) and 12(b)(5).
Definition of Trinity Hearing
In Trinity, the Colorado Supreme Court interpreted CGIA § 108
as requiring courts to resolve jurisdictional facts raised by
an immunity defense through an evidentiary hearing held prior
to trial.12 Although Trinity focused on the notice provisions
of the CGIA, later cases expanded Trinity to other
jurisdictional aspects of that Act. A number of cases also
declared that certain parts of the CGIA were not
jurisdictional and, therefore, no different than other
affirmative defenses. This meant that if several CGIA
defenses were raised in one motion, some would require a
Trinity hearing and application of the Trinity procedural and
substantive requirements, whereas others would not. This
created an area ripe for confusion.
In December 2003, in Finnie v. Jefferson County School
District R-1,13 the Colorado Supreme Court expanded the scope
of Trinity hearings. Specifically, Finnie clarified that the
CGIA
requires the trial court to definitively resolve all issues
of immunity before trial, regardless of whether the issues
have been classified as jurisdictional. Trial courts must
employ the procedures used in [Trinity] and its progeny to
resolve issues of immunity, even when such issues are not
jurisdictional.14 (Emphasis added.)
Thus, a Trinity hearing is used to resolve a public
entity's motion to dismiss a claim under the CGIA.
Evidence beyond the statements in the pleadings may be
presented. The trial court decides, prior to trial and
perhaps even prior to an answer being filed, the factual
disputes raised by the public entity's motion, using a
C.R.C.P. 12(b)(1) analysis.
C.R.C.P. 12(b)(1) Versus 12(b)(5) Motions
The procedural and substantive difference between motions
under C.R.C.P. 12(b)(1) and 12(b)(5) is a fertile source of
confusion. Most litigators and judges routinely handle
motions under C.R.C.P. 12(b)(5). However, under Trinity, a
CGIA defense is determined under C.R.C.P. 12(b)(1), which is
invoked far less frequently.
There are significant differences between motions made under
C.R.C.P. 12(b)(1) and 12(b)(5) for both plaintiff attorneys
and defense counsel. The most significant differences are
discussed below.
Burden of Proof
The plaintiff, not the public entity making the motion, bears
the burden of proving jurisdiction.15 This point is often
forgotten, even by attorneys representing public entities.
No Summary Judgment
The hearing remains under C.R.C.P. 12, and is not converted
to a summary judgment under C.R.C.P. 54, even though
additional evidence is allowed. This is another commonly
forgotten procedural point, and courts sometimes still
improperly refer to summary judgment in CGIA opinions.
Non-Jurisdictional Facts
Included
Included
In Finnie, the Colorado Supreme Court acknowledged that
C.R.C.P. 12(b)(1) motions typically are...
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