COLORADO COURT OF APPEALS 2016COA112
Court of Appeals No. 15CA1953 Moffat County District Court No. 13JV34 Honorable Michael A. O’Hara, Judge
The People of the State of Colorado,
Petitioner-Appellee and Cross-Appellant,
In the Interest of L.K., a Child,
and Concerning C.K.,
Respondent-Appellant and Cross-Appellee.
JUDGMENT AFFIRMED AND ORDERS REVERSED
Division II Opinion by JUDGE WEBB Ashby and Harris, JJ., concur
Announced July 14, 2016
Brett Barkey, County Attorney, Rebecca Tyree, Assistant County Attorney, Craig, Colorado, for Petitioner-Appellee and Cross-Appellant
Heather Cannon, Guardian Ad Litem
Salky Law, LLC, Randall P. Salky, Steamboat Springs, Colorado, for Respondent-Appellant and Cross-Appellee ¶1 In this dependency and neglect proceeding, C.K. (father)
appeals from the judgment terminating the parent-child legal
relationship between him and his daughter, L.K. We affirm the
judgment.
¶2 On cross-appeal, the Moffat County Department of Social
Services (MCDSS) challenges the trial court’s order requiring
payment of $400 to father’s attorney, as a discovery sanction, on
the basis that, among other reasons, it violated sovereign immunity.
This question has not been addressed in Colorado. After
considering federal precedent, we conclude that, because this
sanction violated sovereign immunity, it must be set aside.
I. Background
¶3 In August 2013, MCDSS devised a protective plan for L.K.,
then five years old, after her outcry over sexual abuse by father.
MCDSS placed L.K. with M.K. (grandmother), and contact between
father and L.K. was prohibited. In October, after father was seen
contacting L.K. in violation of the protective plan, MCDSS removed
her from grandmother’s home. Then it filed a petition in
dependency and neglect.
1 ¶4 At the first hearing, the court advised father that he was the
focus of a criminal investigation arising from L.K.’s report of abuse;
the offenses being investigated were “serious offenses,” which could
lead to a lengthy prison term; and he should be careful about what
he said because his statements could be available to other people
and could potentially be used against him in a criminal case. The
court also advised him that if L.K. was adjudicated dependent and
neglected, a treatment plan would be adopted for him; if he failed to
comply with it, either MCDSS or L.K.’s guardian ad litem (GAL)
could move to terminate his parental rights; and if the court found
that “sufficient proof” had been presented, his parental rights would
be terminated.
¶5 Father stipulated that L.K. was dependent and neglected
because she lacked proper parental care. The court accepted his
admission and adjudicated L.K. dependent and neglected.
¶6 MCDSS proposed a treatment plan for father that required
him, among other things, to successfully complete sex offender
treatment. Although the plan did not specifically require him to
take a polygraph examination, it did require him to “participate in a
psychosexual evaluation and complete other assessments required
2 by the evaluator” and “complete therapy according to SOMB
standards.”1
¶7 When the court approved the treatment plan, father was not
present — allegedly because MCDSS failed to advise him of a
change in the hearing date — and he was not represented by
counsel.2 The attorney for MCDSS told the court that father
continued to deny having sexual contact with L.K. but had
indicated that he understood MCDSS would be seeking treatment
for alleged improper sexual contact. Counsel also said that she
believed father would say that he was “not in favor” of such
treatment, but she was under the impression that he would be
willing to do it if the court ordered it.
¶8 Later, and still without counsel, father sent a letter to the
court objecting to “taking a lie detector test.” But he did so on the
ground that he understood such tests were “unscientific” and had a
large margin of error. He did not express any fear that a polygraph
1 SOMB refers to the Sex Offender Management Board. § 16-13-902(2), C.R.S. 2015. 2 Initially, father was not eligible for court-appointed counsel based
on his earnings. When the treatment plan was proposed, he had not yet retained private counsel. However, the trial court found that father had “had knowledge and notice” of the hearing.
3 examination might require him to incriminate himself. And
otherwise, he did not contest the treatment plan.
¶9 In January 2014, father retained counsel, who told MCDSS
that father could not complete SOMB-approved treatment because
he refused to admit that he had sexually abused L.K. and no
criminal charges were pending against him. At a later status
hearing, counsel provided this information to the court, and the
caseworker confirmed that SOMB-approved providers would not
treat father under these circumstances.
¶ 10 Father’s retained counsel also requested a protective order
under section 19-3-207, C.R.S. 2015, precluding use of any
statements made during treatment in later criminal proceedings.
The court entered the order. But the court never ruled on father’s
letter objecting to “taking a lie detector test.” Nor did his attorney
ask the court to treat the letter as a motion and rule on it.
¶ 11 In April 2014, father completed a sex offense specific
evaluation by an SOMB-listed evaluator. Noting that father
completely denied any inappropriate sexual behavior, the evaluator
recommended that father take a polygraph examination to
determine the next step. If the results indicated that he was
4 truthful, he would not be viewed as an appropriate candidate for
offense specific treatment. But, if the results showed deception and
he continued to deny inappropriate sexual behavior, he could
participate in a “denier’s intervention” program “for the purpose of
helping him reduce his denial and defensiveness in preparation for
a traditional offense specific treatment program.”
¶ 12 MCDSS proposed that father’s treatment plan be amended to
include the evaluator’s recommendations. This time, he did not
object to any aspect of the amended plan. The court amended the
plan.
¶ 13 After father completed the first polygraph examination in June
2014, efforts were made to find a treatment provider for him. But,
during a hearing on September 17, he told the court that he still
could not find a treatment provider who would work with him.
¶ 14 In October 2014, the court expressed concern that father’s
treatment plan might be “impossible” because he could not find a
provider who was willing to treat him. The court ordered MCDSS to
find a provider for father. MCDSS was not successful.
¶ 15 In January 2015, at the court’s request, father moved to
modify his treatment plan. He requested, among other things, that
5 any reference to SOMB requirements or guidelines be eliminated,
and that the therapy requirement be modified to remove any
reference to denier’s treatment or SOMB offense specific treatment.
The motion did not specifically address completing a polygraph
examination. Following a hearing, the court denied the motion and
ordered father to participate in denier’s treatment.
¶ 16 Father was referred to an SOMB-approved provider for denier’s
treatment in March 2015. The provider tried several approaches to
help him “open up” about his behavior, but nothing worked. Father
met with the provider only four times. And he did not meet with or
attempt to contact the provider after May 15.
¶ 17 Father told MCDSS that he could not pay for the second
polygraph examination that was required as part of denier’s
treatment. After MCDSS agreed to pay for the examination, it was
rescheduled for August. But father was terminated from treatment
on July 20, under SOMB standards that require termination if a
denier continues to be in full denial after ninety days. He never
took the examination.
¶ 18 After denier’s treatment ended, MCDSS moved to terminate
father’s parental rights, citing his failure to comply with his
6 treatment plan. During the three-day termination hearing, father’s
attorney cross-examined witnesses and made arguments on father’s
behalf. However, father chose not to testify and his attorney did not
present any evidence.
¶ 19 Relying on the testimony of the denier’s treatment provider
and other witnesses, the court found, among other things, that
father had been referred for a polygraph examination as part of
denier’s treatment, but he had not appeared for the examination.
The court granted the termination motion, citing father’s failure to
successfully complete treatment designed to address the allegations
of “sexual misbehavior” with L.K. as sufficient evidence that father
was unable or unwilling to provide nurturing and safe parenting to
adequately address her needs.
II. Failure to Take the Polygraph Examination
¶ 20 Father first contends the trial court committed reversible error
by considering the denier’s treatment polygraph examination as
evidence supporting its determination that he failed to successfully
complete his treatment plan. We perceive no error.
7 A. Additional Background
¶ 21 The court allowed MCDSS to present evidence of efforts to
schedule an appointment for a polygraph examination during
denier’s treatment and evidence that father did not keep the
appointment. In granting the termination motion, the court cited
father’s failure to successfully complete treatment designed to
address the allegations of “sexual misbehavior” with L.K. The court
specifically referred to father’s failure to take the second polygraph
examination required by the denier’s treatment program as evidence
of his failure to successfully complete treatment.
B. Preservation and Standard of Review
¶ 22 Father preserved this issue by raising it in his closing
argument at the termination hearing.3 Whether the trial court
improperly considered father’s failure to take the polygraph
examination is reviewed for an abuse of discretion. See People v.
Banks, 2012 COA 157, ¶ 96 (holding that the trial court did not
3 However, father’s counsel did not then argue, nor had he argued at any earlier stage of the proceedings, either that father had been coerced into participating in denier’s treatment or that the polygraph examination required by this treatment implicated father’s privilege against self-incrimination. Father does not make either argument on appeal.
8 abuse its discretion in admitting testimony as to whether a
polygraph examination was performed), aff’d in part and rev’d in
part on other grounds sub nom. People v. Tate, 2015 CO 42.
C. Law
¶ 23 “Evidence of polygraph test results and the testimony of
polygraph examiners are per se inadmissible in both criminal and
civil trials.” People in Interest of M.M., 215 P.3d 1237, 1248 (Colo.
App. 2009). In M.M., which involved termination of parental rights,
the division held that evidence of polygraph examinations should
not have been admitted, and the trial court should not have listened
to or considered the opinions of any experts based in whole or in
part on polygraph results. Id. at 1250.
D. Application
¶ 24 According to father, the question before the trial court was
whether evidence of polygraph examination results could be
considered. Not so. The record shows the question to have been
whether evidence of compliance (or lack thereof) with a polygraph
examination requirement should be admitted and considered, and
for what purpose. Because father never took the polygraph
9 examination required for denier’s treatment, the court had no
results to consider.
¶ 25 Father does not dispute either that his treatment plan
required him to participate in denier’s treatment or that a polygraph
examination is required in denier’s treatment. For these reasons,
the court concluded that it could properly admit evidence of efforts
to schedule an appointment for a polygraph examination during
appointment. We agree with the court that admitting this evidence
did not violate the prohibition against considering polygraph
results. Based on L.K.’s outcry over sexual abuse by father, the
mandatory participation in sex offender treatment, and the
treatment requirement that he take a polygraph examination,
father’s failure to take the examination was a proper matter for the
court to consider in determining whether he had successfully
completed his treatment plan.
¶ 26 Therefore, we conclude that the court did not err in admitting
evidence of father’s failure to take the polygraph examination
required as part of the denier’s treatment component of his
10 treatment plan and considering this evidence in terminating his
parental rights.
III. The Burden of Proof
¶ 27 Next, father contends the burden was on MCDSS to prove by
clear and convincing evidence that his parental rights should be
terminated, but the trial court erred by unfairly shifting the burden
of proof to him when he decided not to testify in the termination
hearing. Again, we perceive no error.
A. Additional Background
¶ 28 Neither MCDSS nor the GAL attempted to call father to testify
at the hearing. On the second day of the termination hearing, after
MCDSS and the GAL had rested, the court inquired whether father
intended to present any evidence. After consulting with his
attorney and being advised by the court of the consequences of his
decision, father declined to testify or present any other evidence. At
that time, neither father nor his attorney mentioned a concern over
self-incrimination.
¶ 29 Later, the court asked the parties to address in their closing
arguments whether it could draw a negative inference from father’s
failure or refusal to participate in the polygraph examination
11 required by denier’s treatment. The court cited Asplin v. Mueller,
687 P.2d 1329 (Colo. App. 1984), as a potentially relevant case, but
it acknowledged that the opinion did not appear to be “on point.”
¶ 30 Father preserved the issue of whether the trial court
improperly considered his choice not to testify when his counsel
raised it in his closing argument at the termination hearing.
However, counsel sought to dissuade the court from relying on
Asplin by arguing that an adverse inference could not be drawn
because unlike in that case, father had not declined to testify on
Fifth Amendment grounds.
¶ 31 “The proper burden of proof is a question of law which we
review de novo.” McCallum Family L.L.C. v. Winger, 221 P.3d 69, 72
(Colo. App. 2009).
¶ 32 Under the Fifth Amendment to the United States Constitution,
no person “shall be compelled in any criminal case to be a witness
against himself.”4 The Fifth Amendment “also privileges [the
4Article II, section 18 of the Colorado Constitution similarly provides that “[n]o person shall be compelled to testify against
12 individual] not to answer official questions put to him in any other
proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings.” Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973). And a witness protected by the
privilege “may rightfully refuse to answer unless and until he is
protected at least against the use of his compelled answers and
evidence derived therefrom in any subsequent criminal case in
which he is a defendant.” Id. at 78.
¶ 33 Even so, “the Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse to testify
in response to probative evidence offered against them.” Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976); see Sec. & Exch. Comm’n v.
Colello, 139 F.3d 674, 677 (9th Cir.1998) (“Parties are free to invoke
the Fifth Amendment in civil cases, but the court is equally free to
draw adverse inferences from their failure of proof.”) (cited with
approval in Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 141 (Colo.
2004)). And while refusing to testify may be necessary to prevent a
waiver of the privilege, “[c]ourts generally have refused to find a
himself in a criminal case.” Father does not argue that article II, section 18 provides any greater protection than the Fifth Amendment at trial.
13 [F]ifth [A]mendment violation when, as in this case, the refusal to
testify does not automatically lead to sanctions.” Rosenberg v. Bd.
of Educ., 710 P.2d 1095, 1100 n.11 (Colo. 1985).
¶ 34 In Asplin, a division of this court held that although in a
criminal case instructing the jury that it may draw an inference of
guilt from a defendant’s failure to testify about facts relevant to his
case is reversible error, in a civil case a party’s refusal to answer
questions by asserting the Fifth Amendment privilege against
self-incrimination may be the basis for an inference that the answer
would have been unfavorable to him. 687 P.2d at 1331-32.
¶ 35 Father argues, as he did below, that Asplin is inapposite
because he did not assert his privilege against self-incrimination as
a reason for declining to testify at the termination hearing. Instead,
father continues, because he merely chose not to put on evidence,
the court could not draw an adverse inference from this decision.
¶ 36 In closing argument, father’s counsel understandably
addressed whether the trial court could draw an adverse inference.
After all, the court had raised Asplin sua sponte. But by any fair
reading, the record tells us that the trial court did not draw an
14 adverse inference from father’s failure to testify or otherwise put on
evidence. Still, father persists with this argument on appeal.
¶ 37 True enough, in the court’s oral findings, it recognized “[t]he
question about [father] not participating in the second polygraph
examination and whether that can be used to draw an adverse
inference.” But then the court explained that, as with any
respondent parent’s failure to comply with a portion of a treatment
plan:
I would draw an adverse inference from that behavior. [Father] made a decision. And the reason for the decision doesn’t really matter too much. He knew what was required, I’m convinced of that. He knew how to meet the requirement, and I’m convinced of that. He made a decision to stop complying.
¶ 38 In the written “Order Concerning Motion to Terminate Parent
Child Relationship,” the trial court noted only that father had not
testified. Then, and without making any reference to either Asplin
or drawing adverse inferences, the court found — from the
testimony of other witnesses and not disputed by father — that he
did not participate in a polygraph examination as required by the
15 denier’s treatment element of his treatment plan.5 As a result, the
court further found that “father failed to complete the treatment
plan.” The record supports the court’s holding that father’s failure
to successfully complete his denier’s treatment — because he did
not participate in a required polygraph examination — was similar
to holding that a parent’s failure to participate in any other activity
required by the parent’s treatment plan, such as drug testing to
complete substance abuse treatment, resulted in a lack of
compliance with the treatment plan.
¶ 39 Therefore, we conclude that when father failed to present
evidence, the court did not improperly shift the burden of proof,
infringe on father’s privilege against self-incrimination, or draw
impermissible adverse inferences.
IV. Sufficiency of the Evidence
¶ 40 Finally, father contends MCDSS did not prove its case by clear
and convincing evidence. Specifically, he asserts the absence of
5 Although we discern no principled difference between the court’s oral findings and its written order, “when a court makes oral findings and conclusions that differ from its final written rulings, the final written order controls.” Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist., 271 P.3d 587, 589 (Colo. App. 2011).
16 such evidence that he had sexually abused L.K., which was the
basis for the petition in dependency and neglect. We reject this
contention because the question of father’s wrongdoing was not at
issue in the termination hearing.
¶ 41 In terminating father’s parental rights based on his failure to
complete his treatment plan, the court did not make any findings
whether father had sexually abused L.K. And the court specifically
noted in its termination order that whether father in fact sexually
abused L.K. was not an issue for it to decide at the termination
hearing. Instead, the court found that the issue before it was
whether father had complied with his treatment plan. Ultimately,
the court concluded that because father had not completed his
treatment plan, it had not been successful in rehabilitating him.
¶ 42 In his closing argument to the trial court, father’s counsel
asserted that MCDSS had failed to present clear and convincing
evidence that father had sexually molested L.K. Counsel also
argued that father should not have been required to participate in
and complete an SOMB-type treatment program, which was
17 “designed for failure” because completion of such treatment was not
possible within a year, as required in an expedited permanency
planning case.
¶ 43 “In determining whether the evidence is sufficient to sustain
an adjudication, we review the record in the light most favorable to
the prevailing party, and we draw every inference fairly deducible
from the evidence in favor of the court’s decision.” People in Interest
of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).
¶ 44 A child may be adjudicated dependent and neglected if any of
the circumstances set forth in section 19-3-102, C.R.S. 2015, is
admitted or proven to exist. For example, a child may be deemed
dependent and neglected if “[a] parent . . . has subjected him or her
to mistreatment or abuse” as provided in section 19-3-102(1)(a).
But proof of abuse would not be necessary if the child is determined
to be dependent and neglected on other grounds, such as lack of
proper parental care as provided in section 19-3-102(1)(b). And
L.K. had been adjudicated dependent and neglected in November
2013, based on father’s stipulation that she lacked proper parental
care.
18 ¶ 45 A court may terminate parental rights if it determines that the
criteria in section 19-3-604, C.R.S. 2015, have been established by
clear and convincing evidence. And under section 19-3-604(1)(c), a
parent’s failure to comply with or successfully complete an
appropriate treatment plan approved by the court is a factor that
the court may consider in determining whether the criteria for
termination have been established. Such a treatment plan is one
that “sets out a course of action that will ‘help the parent overcome
those difficulties which led to a finding that the child was neglected
[and] dependent.’” E.S.V. v. People, 2016 CO 40, ¶ 35 (quoting
People in Interest of C.A.K., 652 P.2d 603, 610 (Colo. 1982)).
¶ 46 The question before the court at the termination stage was not
whether a factual basis for adjudicating L.K. dependent and
neglected existed. That basis had already been established.
Instead, MCDSS had the burden of proving the criteria for
termination, including, as the court noted, father’s failure to comply
with his treatment plan.
¶ 47 Because MCDSS was not required to prove that father had
sexually abused L.K. to establish that at least one of the
19 termination criteria set forth in section 19-3-604(1)(c) had been
met, and he does not contend that the evidence is otherwise
insufficient, we reject his contention that the evidence was
insufficient to support the judgment.
V. Attorney Fees Sanction
¶ 48 On cross-appeal, MCDSS contends the trial court erred in
assessing attorney fees against it for discovery violations in the
absence of a case management order, a court order mandating
discovery, or a stipulation as to discovery. It further contends the
trial court erred in assessing attorney fees against a governmental
entity, at least without finding a C.R.C.P. 11 violation. Addressing a
novel question in Colorado, we conclude that sovereign immunity
precludes orders assessing attorney fees against a governmental
entity for discovery violations.6
¶ 49 Both parties chose to handle discovery in a more formal
manner than is typical of a juvenile court proceeding. Father
propounded formal discovery requests to MCDSS. MCDSS filed a
6We express no opinion on the application of sovereign immunity to a monetary sanction against a governmental entity in any other context.
20 “Certificate of Compliance Pursuant to [C.R.C.P.] 26(a)(1)” to
document each group of documents produced.
¶ 50 On May 9, 2014, father moved to compel discovery, asserting
that although MCDSS had produced sixty-two pages of “alleged
discovery,” those documents did not include anything in several
categories that had been requested several months earlier, and
MCDSS had not responded to an interrogatory submitted at the
same time. He requested an order compelling MCDSS to respond to
his discovery requests as well as sanctions.
¶ 51 Several months later, MCDSS responded to the motion to
compel, explaining that it had not responded earlier because the
attorney for MCDSS believed that the “remainder of discovery”
sought by father had been provided to him on May 13, 2014. Citing
section 13-17-102(8), C.R.S. 2015, which provides that section
13-17-102 “shall not apply to . . . matters brought under the
provisions of the ‘Colorado Children’s Code,’” MCDSS also argued
that attorney fees could not be awarded in juvenile matters. Father
replied, detailing his reasons for dissatisfaction with the response to
his discovery requests and renewing his request for sanctions.
21 ¶ 52 During a later review hearing, the motion to compel was
raised, the trial court asked about sovereign immunity, the parties
presented arguments, and an agreement on how discovery would be
handled going forward was reached. A few weeks later, the court
entered an order granting father’s motion for sanctions. The court
approved the new “open file” policy that MCDSS was adopting, but
it found that a discovery violation had occurred. Adding that “this
is not the first time that this court has heard similar complaints”
about MCDSS, the court ordered MCDSS to pay $400 to father’s
attorney as a sanction under C.R.C.P. 37.
¶ 53 MCDSS moved to vacate the sanction order under C.R.C.P. 59.
The court denied the motion without comment.
¶ 54 The same challenges to the attorney fees award that MCDSS
asserts on appeal were addressed in the trial court.
¶ 55 Discovery rulings are within the discretion of the trial court
and will not be disturbed absent an abuse of discretion. People in
Interest of S.G., 91 P.3d 443, 450 (Colo. App. 2004). The court’s
decision on imposing sanctions under C.R.C.P. 37 is also reviewed
for an abuse of discretion. Winkler v. Shaffer, 2015 COA 63, ¶ 7. A
22 court abuses its discretion when it misunderstands or misapplies
the law. Reisbeck, LLC v. Levis, 2014 COA 167, ¶ 7.
¶ 56 Sovereign immunity raises a jurisdictional issue. Springer v.
City & Cty. of Denver, 13 P.3d 794, 798 (Colo. 2000). If the issue
involves a factual dispute, the clearly erroneous standard of review
applies to the trial court’s findings of jurisdictional fact. But where
the facts are undisputed, the appellate court reviews this issue de
novo. Id.; see also Churchill v. Univ. of Colo., 293 P.3d 16, 25 (Colo.
App. 2010) (collecting cases), aff’d, 2012 CO 54.
¶ 57 A party may move to compel disclosure and for appropriate
sanctions if another party fails to make a disclosure required by
C.R.C.P. 26(a). C.R.C.P. 37(a)(2)(A). But C.R.C.P. 26, which
governs disclosure and discovery in most civil matters, does not
apply in expedited proceedings “[u]nless otherwise ordered by the
court or stipulated by the parties.” C.R.C.P. 26(a). A motion to
compel is also available if a party fails to respond to formal
discovery, such as by not answering an interrogatory or producing
documents requested by the discovering party. C.R.C.P. 37(a)(2)(B).
But because C.R.C.P. 37 does not contain similar language limiting
23 its application in expedited proceedings, the question remains
whether this rule could apply where Rule 26 did not.
¶ 58 If a motion to compel is granted, or if the requested discovery
is provided after the motion was filed, the court may require the
party whose conduct necessitated the motion, that party’s attorney,
or both to pay to the moving party the reasonable expenses
incurred in making the motion. Even so, attorney fees should not
be awarded if the court finds that either the moving party did not
first make a good faith effort to obtain the discovery without court
action, or the opposing party’s response was substantially justified
or that other circumstances make an award of expenses manifestly
unjust. C.R.C.P. 37(a)(4)(A).
1. Availability of Discovery Sanctions
¶ 59 MCDSS argues that the court lacked authority to impose
sanctions under C.R.C.P. 37 in the absence of either an agreement
between the parties to conduct discovery under C.R.C.P. 26 or a
court order mandating discovery and requiring the parties to
conduct it under C.R.C.P. 26. Even if we assume that the trial
court could impose sanctions under C.R.C.P. 37(a)(4)(A) without
24 having first entered an order making Rule 26(b) applicable, because
MCDSS is a governmental entity, our inquiry must address
sovereign immunity.
2. Sovereign Immunity
¶ 60 In 1971, citing the injustice and inequity that often resulted
from the application of the doctrines of sovereign immunity and
governmental immunity, the Colorado Supreme Court abrogated
these doctrines for causes of action arising after June 30, 1972.
Evans v. Bd. of Cty. Comm’rs, 174 Colo. 97, 99-106, 482 P.2d 968,
969-72 (1971). The court declared that the situation was “in the
hands of the General Assembly,” which had the authority to restore
sovereign immunity and governmental immunity in whole or in
part, if it wished to do so. Id. at 105, 482 P.2d at 972.
¶ 61 The General Assembly responded by enacting the Colorado
Governmental Immunity Act (CGIA), currently codified at sections
24-10-101 to -120, C.R.S. 2015. With certain exceptions not
applicable here, section 24-10-108, C.R.S. 2015, provides that
“sovereign immunity shall be a bar to any action against a public
entity for injury which lies in tort or could lie in tort regardless of
whether that may be the type of action or the form of relief chosen
25 by a claimant.” Injury is defined as “death, injury to a person,
damage to or loss of property, of whatsoever kind, which, if inflicted
by a private person, would lie in tort or could lie in tort.”
§ 24-10-103(2), C.R.S. 2015.
¶ 62 This definition of injury shows why the CGIA is inapplicable to
discovery sanctions. The “injury” sustained by a party who has
been disadvantaged by another party’s failure to comply with rules
governing discovery is not “death, injury to a person, damage to or
loss of property, of whatsoever kind, which, if inflicted by a private
person, would lie in tort or could lie in tort.” And, although torts
involving litigation have been recognized in Colorado — see, e.g.,
Mintz v. Accident & Injury Med. Specialists, PC, 284 P.3d 62, 65-66
(Colo. App. 2010) (discussing abuse of process and malicious
prosecution), aff’d, 2012 CO 50 — we are unaware of any Colorado
authority treating failure to comply with discovery rules as a tort.
¶ 63 For these reasons, we conclude that the CGIA does not apply
to discovery sanctions. But this conclusion only circles back to
Evans, which ended governmental and sovereign immunity. So,
how could immunity still preclude the sanction at issue?
26 ¶ 64 Colorado procedural rules and cases construing those rules
provide some guidance. For example, under C.R.C.P. 54(d):
Except when express provision therefor is made either in a statute of this state or in these rules, reasonable costs shall be allowed as of course to the prevailing party considering any relevant factors which may include the needs and complexity of the case and the amount in controversy. But costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.
(Emphasis added.) In City & County of Broomfield v. Farmers
Reservoir & Irrigation Co., 239 P.3d 1270, 1278-79 (Colo. 2010), our
supreme court noted that this rule serves to “protect the public
treasury, which, in turn, is consistent with the concept that the
government cannot be sued without its consent.” The court further
observed that “[t]he legislature alone has the power to balance the
interests between protecting the public against excessive financial
burdens and allowing individual parties to sue the government.” Id.
at 1279.
¶ 65 Still, the specific question before us — whether sovereign
immunity bars an award of attorney fees against a public entity
under C.R.C.P. 37 — remains unresolved in Colorado. Because the
state and federal versions of Rule 37 are substantially similar,
27 federal court decisions provide guidance in construing C.R.C.P. 37.
Garcia v. Schneider Energy Servs., Inc., 2012 CO 62, ¶ 7.
¶ 66 To be sure, some federal courts have ordered monetary
sanctions against government attorneys, citing statutory language
or procedural rules as authority for doing so. See, e.g., Chilcutt v.
United States, 4 F.3d 1313, 1325-27 (5th Cir. 1993) (affirming order
requiring government attorney to personally reimburse plaintiffs for
attorney fees incurred because of the government’s discovery
abuse). Based on 28 U.S.C. § 2412 (2012), a provision of the Equal
Access to Justice Act (EAJA), the Chilcutt court concluded that
Congress intended to subject the government and its attorneys to
Fed. R. Civ. P. 37(b)(2)(E) (now found at Fed. R. Civ. P. 37(b)(2)(C)),
under which the court could order “the recalcitrant party, the
attorney, or both” to pay reasonable expenses, including attorney
fees, to the opposing party for violations of discovery orders. 4 F.3d
at 1326. The court noted that the EAJA specifically deleted
subsection (f) of Rule 37, which had precluded courts from
imposing discovery sanctions on the United States. Id. at 1325-26.
¶ 67 At the same time, federal courts have been reluctant to impose
monetary sanctions against a government agency — as opposed to a
28 government attorney — absent language that specifically authorizes
such sanctions. “[A] provision authorizing sanctions does not
automatically waive sovereign immunity, and thus does not apply,
without more, to fee awards against the government.” In re
Graham, 981 F.2d 1135, 1139-40 (10th Cir. 1992) (finding no
waiver of sovereign immunity “sufficiently explicit” in the Federal
Rules of Bankruptcy Procedure to justify awarding fees against the
government for, among other things, failure to produce certain
documents).
¶ 68 In other words, “[a] waiver of the Federal Government’s
sovereign immunity must be unequivocally expressed in statutory
text,” and will not be implied. Lane v. Pena, 518 U.S. 187, 192
(1996). Thus, although generally “it is unassailable that a court’s
inherent authority includes the power to assess attorneys’ fees or
other monetary fines against either parties or their attorneys,”
absent a waiver of sovereign immunity, that power “does not
encompass the authority to impose monetary sanctions against the
government.” Alexander v. Fed. Bureau of Investigation, 541 F.
Supp. 2d 274, 301 (D.D.C. 2008).
29 ¶ 69 C.R.C.P. 37(a)(4)(A) permits a trial court to order a party, that
party’s attorney, or both to pay the “reasonable expenses” incurred
by an opposing party who has had to file a motion to compel as a
result of the failure of the party or the party’s attorney to make
disclosures or provide discovery as required by the rules governing
discovery. But C.R.C.P. 37 does not expressly authorize an award
against a public entity. Nor are we aware of any Colorado authority
that permits such an award.
¶ 70 Given all this, we conclude that the trial court’s sanctions
order must be set aside.
VI. Conclusion
¶ 71 The judgment terminating the parent-child legal relationship
between father and L.K. is affirmed. The order requiring MCDSS to
pay $400 to father’s attorney, as well as the order denying post-trial
relief to MCDSS, is reversed.
JUDGE ASHBY and JUDGE HARRIS concur.