In June, the Colorado Supreme Court held oral argument in a case that is set to shape the way condemnation actions will be tried to commissions in the future. In Colorado, a landowner has the right to choose whether a jury or commission will determine just compensation. If the landowner chooses a jury, the trial is presided over by the judge just like any other civil action. A commission trial, on the other hand, is usually conducted without the presence of the judge, leaving certain evidentiary rulings to the commission. This approach has been standard since at least 1970, when the Colorado Supreme Court noted that trial judges are not required to preside during a commission valuation trial.
The case currently pending before Colorado’s Supreme Court, RTD v. 750 West 48th Ave (previously discussed in “Colorado Courts and Commissions May Overrule Each Other in Eminent Domain Cases”), is on appeal from a Colorado Court of Appeals decision issued in the Spring of 2014 holding that in a trial to a commission, the court has authority to overrule a commission’s decision on the admissibility of evidence and to instruct it on how to use that evidence when determining just compensation. The court of appeals also concluded that a commission may modify a trial court’s pre-trial ruling on the admissibility of evidence based on a developed trial record.
Taken together, these holdings suggest that a party could have three opportunities to object to evidence during the course of an eminent domain proceeding — once in pre-trial motions, again during the commissioner trial and finally during post-trial argument on instructions. At oral argument, RTD’s counsel referred to this “three-strike” scenario as “judicial mischief,” arguing that when a court rules on a motion in limine, commissions should not be allowed to revisit such a ruling even in the context of a more developed record, and that similarly, a judge should not be allowed to revisit a commission’s evidentiary rulings made during trial via instructions, even on matters of condemnation law.
While not going so far as to refer to the three-strike scenario as mischievous, Justice Boatright expressed concern that the Court of Appeals’ ruling would result in “chaos” for practitioners, pointing out that: “If a motion in limine is granted, people alter their trial strategy: they may or may not have a witness available, they may or may not ask questions” — to which he followed up with the question: “There has to be some degree of reliability on [] motions in limine, does there not?” Justice Hood, on the other hand, questioned why a ruling on a motion in limine would ever be final, pointing out that “things change” and that “trials are a fluid process.” The court of appeals opinion, for example, recognized that a successor judge may modify or alter a prior judge’s rulings based on the discovery of new evidence or facts.
The Colorado Supreme Court also appeared to be skeptical of the 30 or so years of court of appeals’ case law granting commissioners the authority to rule on evidentiary issues in the first place. Specifically, Justice Marquez pointed out that while she recognized that several court of appeals cases had interpreted Colorado’s eminent domain statutes to allow for commissioners to make evidentiary rulings, she was “not aware of any decision from [the Colorado Supreme Court] that has so ruled” and wondered “is that something we need to consider anew?” Justice Coats similarly wanted to know whether it is clear from the statutes that the “commission has the power ... to make evidentiary rulings at all.” Both parties appeared to be of the opinion that the statutes did grant commissions such authority, but as RTD noted, that particular issue was not explicitly briefed on this appeal.
Finally, the Court appeared to be wrestling with the parties’ distinction between rulings on admissibility based on eminent domain common law and rulings on admissibility based on the rules of evidence. Colorado’s eminent domain statutes require “all questions and issues, except the amount of compensation” to be determined by the Court, and further require the Court to instruct the commission “as to the applicable and proper law to be followed by them in arriving at their ascertainment.” C.R.S. §§ 38-1-101 and 105. Both parties took the position that despite the commission’s ability to make evidentiary rulings during trial, there are areas of condemnation law that a trial court, not a commission, must issue rulings on, including for example, a landowner’s entitlement to certain categories of damages and evidence related thereto. The Court appeared to struggle with where, or indeed whether, to draw a line between such matters of common law and evidentiary rulings.
We will keep you updated on any significant developments with respect to 750 West.
