text:
    CITY OF LONGMONT, Petitioner, v. Judith HENRY-HOBBS, Respondent.
    No. 01SC88.
    Supreme Court of Colorado, En Banc.
    July 1, 2002.
    Rehearing Denied Aug. 5, 2002.
    David R. Brougham, Hall & Evans, LLC., Denver, Colorado, Attorneys for Petitioner.
    Karen Colburn, Dean S. Neuwirth, Burke & Neuwirth, Denver, Colorado, Attorneys for Respondent.

      Geoffrey T. Wilson, Denver, Colorado, Attorney for Amicus Curiae Colorado Municipal League.
    Dan E. Wilson, Grand Junction, Colorado, Attorney for Amicus Curiae City of Grand Junction.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.

I. Introduction

A young boy drowned while tubing in an irrigation ditch in the City of Longmont. His mother brought a wrongful death action against the city, contending that the ditch was part of the city's water sanitation system. In this case, as in the recent case of City of Colorado Springs v. Powell, 48 P.3d 561 (Colo.2002), we apply a provision of the Colorado Governmental Immunity Act (CGIA) that waives immunity for injuries resulting from the operation and maintenance of a sanitation facility.

We hold that the irrigation ditch at issue here is a sanitation facility for the purposes of the CGIA because the city uses the ditch as part of its storm drainage system. Specifically, the city discharges storm water into the ditch, is a shareholder of the ditch company that owns the ditch, and maintains the ditch within city limits.

We further hold that because a sufficient nexus between the death and the operation and maintenance of the facility has been established, the CGIA allows the injured party to maintain a suit against the city.

IIL. Facts and Prior Proceedings

This case involves a stretch of a ditch constructed for irrigation which is located within Longmont city limits. A ten year-old boy, Michael Henry, was tubing in this ditch when he slipped off his tube and drowned.

The irrigation ditch is owned by a mutual ditch company of which the city is a shareholder. The city has an agreement with the ditch company that the city will maintain the portion of the ditch within city limits in exchange for the right to empty storm water runoff into the ditch. Several of the city's storm water drains empty into the ditch.

As new residential and recreational areas within the city developed, the city made improvements to the ditch that were needed to accommodate the increased storm water runoff. Where the accident occurred, the ditch was lined in concrete. The city added a four-foot drop within the channel of the ditch designed to slow the velocity of the water (the spillway). The spillway was constructed pursuant to the city's requirements and was transferred to the city upon completion. It is in this spillway that Michael Henry died.

Michael's mother, Judith Henry-Hobbs, brought a wrongful death action against the city and others. She alleged that the defendants "were negligent in failing to maintain the ditch in a manner to prevent injury and failed to warn of the dangers inherent in swimming or tubing in the ditch." She argues that the four-foot drop created a dangerous undertow and that the absence of a protective cage and legible warning signs increased this danger.

The city moved to dismiss Henry-Hobbs's complaint for lack of subject-matter jurisdiction. The city asserted that the CGIA does not permit this suit because the ditch was not a "sanitation facility." The city further asserted that even if the ditch were properly classified as a "sanitation facility," the drowning did not result from the ditch's operation in this capacity.

The trial court held an evidentiary hearing and denied the city's motion to dismiss. The court of appeals affirmed. Henry-Hobbs v. City of Longmont, 26 P.3d 533 (Colo.App.2001), held that the ditch is properly classified as a "sanitation facility" because the city uses it to drain storm water runoff,. The court further held that the trial court did not err in concluding that the city operated and maintained the ditch. We affirm.

III, Analysis

In Powell, we discussed the history and the current status of governmental immunity, 48 P.3d at 568-64, and thus will not repeat it here. Suffice it to say that an injured person may sue the government in tort if there is a specific waiver of immunity in the CIA. Id. at 563-64.

The injured party has the burden of proving subject-matter jurisdiction. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 925 (Colo.1993). In an appeal from a trial court's governmental immunity determination, the reviewing court employs a highly deferential standard of review. Id. In Medina v. State, we noted that if the underlying facts are undisputed, then the trial court's jurisdictional determination is purely a question of law and the appellate review is de novo. 35 P.3d 443, 452-53 (Colo.2001). In the current case, however, there were many disputed questions of fact; the trial court held a Trinity hearing to resolve these. Accordingly, we apply a deferential standard of review.

Here, Henry-Hobbs asserts that immunity has been waived under section 24-10-106(1)(F) of the CGIA. Relevant to this case, that provision waives immunity for injuries "resulting from ... [the operation and maintenance of ... [a] sanitation facility." § 24-10-106(1)(f), 7 C.R.S. (2001). The city advances essentially two arguments as to why the sanitation facility waiver does not apply to the facts of this case. First, the city claims that the ditch is not a sanitation facility because it is privately owned and only carries storm water periodically. Second, the city argues that even if the ditch is a sanitation facility, immunity has not been waived because the injury did not result from the operation and maintenance of the ditch. The trial court and the court of appeals rejected both these arguments. We affirm.

We first examine the term "sanitation facility" as defined in our recent decision, Powell, and conclude that the irrigation ditch at issue here is properly categorized as a sanitation facility for the purposes of the CGIA. Second, we apply the waiver contained in section 24-10-106(1)(f) and find that Henry-Hobbs has shown sufficient facts that the death resulted from the operation and maintenance of the facility to establish a right to sue.

A. The Irrigation Ditch is a Sanitation Facility

In Powell we defined the scope of the term "sanitation facility." Powell, 48 P.3d at 565. Looking to the definition of similar terms in the Colorado Revised Statutes, and keeping in mind that waivers of immunity are to be broadly construed, we concluded that "sanitation facility" is a broad term that included the drainage ditch built to accommodate storm water runoff that was at issue in Powell. Id. at 564-65. This conclusion was consistent with Burnworth v. Adams County, a case in which the court of appeals held that a storm drain constituted a sanitation facility. 826 P.2d 368, 370 (Colo.App.1991).

The city argues that the ditch at issue here should be excepted from the definition of a sanitation facility because it is privately owned and only occasionally carries storm water. We disagree. Every city must deal with the increased storm water runoff caused by urbanization and the many impermeable surfaces created by development. Longmont uses this ditch to control storm water runoff, just as the City of Colorado Springs used the ditch in Powel! for the same purpose. Long-mont is a part owner of the ditch and maintains the section within its city limits, This is an artificial structure not a naturally flowing stream that occasionally collects storm water, We see no reason to treat Longmont differently from Colorado Springs simply because Longmont chose to enter into an ownership and maintenance arrangement with an existing irrigation ditch rather than construct its own ditch. Significantly, the trial court found that the ditch "functions as an integral part of the City's storm drainage system."

The fact that the city shares this ditch with others does not allow it to foreclose tort suits allowed by the CGIA. To allow such a loophole surely would defeat the intention of the General Assembly that the CGIA yield "a just and reasonable result." Stephen v. City & County of Denver, 659 P.2d 666, 667 (Colo.1983).

We similarly reject the city's argument that even if the ditch is occasionally a sanitation facility, it is not so when storm water is not present. There is nothing in the CGIA or in our case law to suggest that injured persons must trace the origins of water in a ditch to determine if government immunity is waived. We rejected governmental immunity as it had developed at common law because of the many arbitrary and fine line distinctions that had developed. See Evans v. Bd. of County Comm'rs, 174 Colo. 97, 100-01, 482 P.2d 968, 969-70 (1971). We refuse to read similar technical distinctions into the CGIA. As the trial court succinetly explained, "(al facility which fits the definition of sanitation facility because it is a device for the collection of storm water remains a sanitation facility whether or not there is the presence of storm water on a particular occasion."

Although the presence or absence of storm water may be relevant to issues of causation and liability, it is not relevant to a determination of subject-matter jurisdiction. See Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384 (Colo.1997). These are matters for the parties to contest and for the jury to decide.

Thus, we hold that a stretch of an irrigation ditch partly owned and maintained by the city, that is an integral part of the city's storm drainage system, is a sanitation facility for the purposes of the CGIA.

B. Immunity is Waived Under These Facts

Having established that the irrigation ditch at issue here is a sanitation facility for the purposes of section 24-10-106(1)(f), we now apply the waiver provision to the facts of this case. Following Powell, we must determine if Henry-Hobbs has alleged an injury that resulted from an act or omission of the city that is connected with the purpose of the facility. Powell, 48 P.3d at 565. We find that she has.

The city argues that the death did not result from the sanitation facility because the water in which Michael drowned was not the city's water. To support this argument, the city sought to introduce evidence at the Trinity hearing that there had been no rainfall near the time of the accident; Henry-Hobbs sought to admit evidence to rebut this. The trial court disallowed evidence of rainfall, ruling that it went to causation rather than the subject-matter jurisdiction inquiry. We agree.

Henry-Hobbs . essentially alleges design flaws in the facility. See id. at 566 (characterizing allegations of negligent failure to post warning signs and negligently constructing a ditch without adequate means of escape as design flaws). Under this theory, the origin of the water is of no import.

Henry-Hobbs alleges that Michael drowned when he was sucked under the water by an undertow in the spillway of the ditch. She alleges that the design of this spillway, including the four-foot drop and the absence of both a protective cage and legible warning signs, led to Michael's death. The trial court concluded that the spillway in which Michael died was constructed to the city's specifications and was accepted by the city upon completion. Moreover, the spillway was constructed for the purpose of accommodating the increased water flow caused by the storm water runoff. This spillway, then, relates to the purpose of the sanitation facility.

Thus, Henry-Hobbs has shown facts sufficient to establish a waiver of immunity in this case. She has alleged an act or omission relating to the purpose of the facility and the facility is a sanitation facility under the CGIA. Hence, she may proceed with her action against the city, as the trial court previously held. We do not address issues of negligence or liability in this decision, only the jurisdictional basis for the suit to proceed. See Swieckowski, 934 P.2d at 1384. Nor do we hold that all irrigation ditches are sanitation facilities. The facts here show the City of Longmont's lack of immunity because it constructed, operated, and maintained portions of the ditch as part of the municipal sanitation system.

IV. Conclusion

In sum, we find that an artificial irrigation ditch of which the city is a shareholder and which is an integral part of the city's storm drainage system is a sanitation facility for the purposes of the CGHIA. Furthermore, we find that the immunity waiver encompassed in section 24-10-106(1)(f) establishes jurisdiction under the facts of this case. The spillway in which Michael Hobbs drowned was constructed for and adopted by the city as part of the use of the ditch as a sanitation facility and the alleged negligence relates to the design of this spillway. Thus, his death may have resulted from the operation and maintenance of a sanitation facility,. The court of appeals' judgment is affirmed.

      . The agreement details that the city will clean the ditch, removing any obstructions; trim weeds and trees to the extent needed to maintain proper operation of the ditch make repairs amounting to less than $2,500 each; indemnify the ditch company for damages caused to third parties by excess storm waters; and pay the cost of listing the city as an additional insured party on the company's liability insurance policy.

      . Although other spillways on the ditch have protective cages restricting access to them, this spillway does not. Furthermore, although the city replaced the signs warning of the danger of the spillway after Michael's death, at the time of the accident, the existing signs were illegible.

      . Section 24-10-106(1)(f) allows an injured party to sue a governmental entity for injuries resulting from the operation and maintenance of a sanitation facility. Section 24-10-106(1)(e), on the other hand, allows an injured party to sue a governmental entity for injuries resulting from the dangerous condition of a sanitation facility. Here, Henry-Hobbs alleges a section 24-10-106(1)(f) operation and maintenance waiver of immunity, not a section 24-10-106(1)(e) dangerous condition waiver of immunity. Thus, as in Powell, we consider only the operation and maintenance provision and do not address the dangerous condition provision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Gabriel KARR; Donald H. Meyer; Suzanne Meyer; L. Douglas Beatty; Beatty, Gresham & Colerick, LLP; Zane Bowers; Ross E. Bryant; Ryan Karr; Ronald L. Kidd; Charles L. Oliver; Randall W.B. Purvis; Haley R. Realty, Inc.; and Inovest, LLC, Petitioners. v. Paul WILLIAMS a/k/a Paul Chayne Williams; Paul C. Williams; Ronald Lee Stewart; and Ronald L. Stewart, Respondent.
    No. 02SA18.
    Supreme Court of Colorado.
    July 1, 2002.
    Rehearing Denied Aug. 5, 2002.

      John Randolph Torbet, Colorado Springs, Colorado, Attorney for Petitioners, Gabriel Karr; Ross E. Bryant; Ronald L. Kidd; Ryan Karr; Inovest, LLC; Donald H. Meyer; and Suzanne Meyer.
    L. Douglas Beatty, Colorado Springs, Colorado, Attorney for Petitioners, L. Douglas Beatty, pro se; Beatty, Gresham & Colerick, LLP.
    Randall W.B. Purvis, Colorado Springs, Colorado, Attorney for Petitioners, Randall W.B. Purvis pro se; Zane Bowers; Charles L. Oliver; Haley Realty Inc.
    Paul Williams, Las Animas, Colorado, pro se Respondent.
   PER CURIAM.

In this original proceeding, we issued a rule to show cause why Respondent, Paul Williams, should not be enjoined from proceeding pro se as a plaintiff in pending or future litigation in the courts of this state. We now make that rule absolute but with this modification: Respondent may proceed pro se if he obtains leave of the court in which he intends to file an action in the manner we prescribe below. Otherwise, he must be represented by an attorney licensed to practice law in the State of Colorado.

I. FACTS AND PROCEDURAL HISTORY

Respondent, who is currently serving a term of incarceration in the Department of Corrections, has used the judicial process to engage in a campaign of harassment and intimidation spanning more than twenty years. Petitioners, whom Respondent has named as defendants in the suit underlying this petition, and many other individuals and entities in the State of Colorado have been the victims of this campaign. The cost of this "wholesale assault," see Bd. of County Comm'rs v. Winslow, 862 P2d 921, 923 (Colo.1993)-both to the state and to the parties against whom Respondent's groundless suits are brought-has been enormous.

Repeatedly, Respondent has filed frivolous, vexatious lawsuits against his adversaries in an attempt to either gain leverage over them or exact vengeance on them. For example, Petitioners Gabriel Karr, Ross E. Bryant, and Ronald L. Kidd, were witnesses in two criminal cases in which Respondent was ultimately convicted. Petitioners Donald H. and Suzanne Meyer were victims of a securities fraud for which Respondent was convicted and sentenced to sixteen years in the Department of Corrections. Respondent has sued Petitioners Karr, Bryant, and Kidd before. Williams v. Karr, No. 97CV0108 (El Paso County Dist. Ct.); Williams v. Karr, No. 95CV1517 (El Paso County Dist. Ct.); Williams v. Bryant, No. 96CV1831 (El Paso County Dist. Ct.), Williams v. Kidd, No. 98CV3288 (El Paso County Dist. Ct.). All of these cases were dismissed. In addition, Respondent has brought civil actions in both state court and the United States District Court for the District of Colorado against the district attorneys and investigators who contributed to his criminal convictions. See, eg., Williams v. Cafasso, No. 01CV0080 (El Paso County Dist. Ct.); Williams v. Cafasso, No. 00S1225 (D.Colo). These actions were dismissed too.

Furthermore, on multiple occasions, Respondent has unjustifiably clouded title to property in this state-including the property of some of the Petitioners in this case-by filing a frivolous lawsuit and an accompanying notice of lis pendens. See, eg., Willams v. Kidd, No. 98CV3288 (El Paso County Dist. Ct. Nov. 9, 1998) (order granting summary judgment and decree quieting title) East Fillmore Investors v. Chrysler First Bus. Credit Corp., No. 94CV2314, (El Paso County Dist. Ct. Mar. 21, 1995) (order); Williams v. Borison, No. 94CV951, (Arapahoe County Dist. Ct. Oct. 16, 1995) (findings of fact, conclusions of law, and judgment order); see also Williams v. Dowdle Sheet Metal Co., 867 P.2d 208, 209 (Colo.App.1998) (holding that Respondent's misuse of lis pendens justified trial court's order dismissing action, striking a lis pendens filed against defendants property, and prohibiting Respondent from filing any more pro se pleadings concerning a lis pendens against the defendant's property).

In Williams v. Kidd, Respondent brought a case against Ronald L. Kidd, a petitioner in this case, claiming title to property owned by Kidd. Respondent also filed a notice of lis pendens against the subject property. The trial court granted summary judgment in favor of Kidd and quieted title to the property in Kidd's favor. Furthermore, the trial court permanently enjoined Respondent from asserting any claim, right, title, or interest, in and to the property." Nevertheless, Respondent recorded two more notices of lis pen-dens on the same property, and Petitioner Kidd was then forced to incur further legal expenses to have them declared void and of no effect, In response, Mr. Williams filed another suit claiming that Kidd and his attorney had conspired to present false evidence to the trial court. In this action, he requested damages and a quiet title decree. This case was also dismissed upon the defendant's motion for summary judgment.

Similarly, in East Fillmore Investors, the court dismissed Respondent's complaint with prejudice and discharged the lis pendens filed against the defendant's property. It also enjoined Respondent from filing complaints against Chrysler First Business Credit Corporation or a lis pendens against its property unless such complaint or lis pen-dens is signed by an attorney licensed to practice law in this state. In doing so, the court noted that Respondent had already filed several complaints against Chrysler involving the same real property. Moreover, the court observed that although Respondent had made no attempt to serve the defendant, he "appears to be sufficiently informed to cloud this Defendant's title to the property by filing a lis pendens." The court found that the purpose of the suit was to harass the defendant and that "Mr. Williams has used both federal and state courts to create confusion" and a "needless expenditure of court time and expense."

Likewise, in Williams v. Borison, Respondent's complaint named over seventy defendants. Respondent made no effort to serve the bulk of these defendants. As to defendants Patrick Dowdle, Alexander Makkai, and the Dowdle Sheet Metal Company, the trial court found that since 1981 Respondent had repeatedly filed "groundless and frivolous civil actions" against them, not only in the Arapahoe County District Court, but also in the District Court for the City and County of Denver, United States District Court for the District of Colorado, and the United States Bankruptey Court for the District of Colorado. "All of these proceedings have been adversely adjudicated against the Plaintiff." The court pointed out that the very first action filed against these defendants in 1981 resulted in judgment being entered against Respondent for groundless and frivolous Htigation and awarded defendant Patrick D. Dowdle $100,000 actual damages as well as $1,000,000.00 in exemplary damages. This judgment was not appealed and has become final and binding.

With regard to defendants Angelica N.O. Larson and Robert E. Larson, the trial court similarly found that "the pending action is merely one ... more example of Plaintiffs repeated filing of groundless and frivolous lawsuits against the Larson's, commencing in the early 1980's." All of these proceedings have also been adversely adjudicated against Respondent and usually involved the same issues. In addition, the court found that

the complaints in these consolidated cases are virtually incomprehensible and make allegations which no reasonable person could find to have a basis in fact, including multiple allegations that virtually every witness who has ever testified against the Plaintiff in prior cases is not really a witness but someone occupying the body and assuming the identity of the real doctors and witnesses who the Plaintiff claims have joined in some type of conspiracy to cause the prior criminal convictions of Mr. Williams.

Finally, the court found that Respondent's tactics were designed to harass, and that Respondent's pro se filings were confusing, vexatious, needless expenditures of court time, and expensive to other parties who have to defend such groundless claims. In the trial court's opinion, "Mr. Williams will continue to file these complaints ad nauseam unless he is permanently enjoined therefrom." Accordingly, acknowledging the severity of Respondent's conduct and the fact that monetary sanctions had not been effective, the court permanently enjoined Respondent from filing any pleadings or lis pendens within its jurisdiction unless a licensed attorney signs such pleadings or lis pendens.

Respondent's abuse of the judicial process has not been limited to the state courts. In Williams v. Madden, No. 001330, 2001 WL 661086, 9 Fed.Appx. 996, 2001 U.S.App. Lexis 13520 (10th Cir. June 18, 2001), the Tenth Circuit affirmed the federal district court's finding that the proceeding was repetitive, vexatious, and frivolous. In dismissing the action, the district court pointed out that Respondent had brought virtually identical claims unsuccessfully three times before. Id. at *2, 9 Fed.Appx. at 997. The district court explained the cireumstances giving rise to the suit:

All of Mr. Williams' claims in this action arise out of a series of events that began in 1979. Mr. Williams alleges that he was involved in various real estate transactions that ultimately led to his convictions in Colorado state court for criminal impersonation and theft. Mr. Williams contends that the alleged victim of the criminal impersonation actually was murdered and that one of the defendants assumed the victim's identity in order to secure Plaintiff's conviction in that case. He maintains that in both state court criminal cases a group of public and private individuals conspired to deprive him of fair trials by perjuring themselves and by failing to disclose exculpatory evidence.

Id. at *3, 9 Fed.Appx. at 998. Although the Tenth Cireuit affirmed the district court's dismissal on the ground that the suit was frivolous and malicious, it noted in dicta that the suit was also probably subject to dismissal on both res judicata and statute of limitations grounds, or failing to contain a short and plain statement of a claim showing a right to legal relief. Id. at *4, 9 Fed.Appx. at 998.

These cases are only examples of Respondent's prolonged and serious abuse of the judicial process. Indeed, the records of the state's courts are replete with many more examples of meritless actions filed by Respondent that we need not detail here. It is clear that Respondent "has exacted and continues to exact a serious strain on the judicial resources of this state." Winslow, 862 P.2d at 923. "Accordingly, the primary question before us concerns the appropriate remedy which this court should institute in order to minimize Respondent's interference with state judicial processes." Id.

II. ANALYSIS AND APPLICATION

Our constitution guarantees every person access to the courts of this state. Colo. Const. art. II, § 6. This right is not, however, absolute. It must be balanced against the equally important constitutional principle that "right and justice should be administered without sale, denial, or delay." Id. To maintain this balance, we have, on a number of occasions, enjoined parties from appearing pro se in all the courts of the state. See Bd. of County Comm'rs v. Winslow, 862 P.2d 921 (Colo.1998); Bd. of County Comm'rs v. Howard, 640 P.2d 1128 (Colo.1982); People v. Dunlap, 623 P.2d 408 (Colo.1981); People v. Spencer, 185 Colo. 377, 524 P.2d 1084 (1974); Shotkin v. Kaplan, 116 Colo. 295, 180 P.2d 1021 (1947); see also Bd. of County Comm'rs v. Barday, 197 Colo. 519, 594 P.2d 1057 (1979); (enjoining respondent from appearing pro se in present or future suits arising out of or related to his marital difficulties). "The common thread running through these opinions is that a litigant's right of access to the courts must[,] ... in a proper case, ... yield to the interests of other litigants and of the public in general in protecting judicial resources from the deleterious impact of repetitious, baseless pro se litigation." Bd. of County Comm'rs v. Win-slow, 706 P.2d 792, 794 (Colo.1985). In each of these cases, the enjoined party was using the judicial process not to vindicate his rights, but to harass and intimidate his adversaries by repeatedly filing groundless and vexatious claims against them. Respondent's conduct here falls within this same pattern.

This court has both the duty and the power to protect courts, citizens, and opposing parties from such abuse. People v. Dunlap, 623 P.2d 408, 410 (Colo.1981); Howard, 640 P.2d at 1129; Colo. Const. art VI, § 2(1), § 3. Mere litigiousness is not grounds for an injunction prohibiting a party from proceeding pro se; however, no one has a right to use the judicial process for the purpose of harassing or intimidating his adversaries. "Opposing litigants must bear the expense of defending against meritless claims, and citizens in general suffer the hardships brought about by increased court costs, crowded dockets, and the unreasonable delay and confusion that accompany a disruption of proper judicial administration." Winslow, 862 P.2d at 923; accord Spencer, 185 Colo. at 381, 524 P.2d at 1086. As the United States Supreme Court has aptly observed "pro se litigants have a greater capacity than most to disrupt the fair allocation of judicial resources because they are often not subject to financial considerations ... that deter other litigants from filing frivolous petitions." In re Sindram, 498 U.S. 177, 180, 111 S.Ct. 596, 112 L.Ed.2d 599 (1991). Likewise, "an injunction may be necessary to prevent further abuse of judicial resources by a pro se litigant because a party acting in his own behalf is not subject to the disciplinary procedures that prevent abuse of the system by attorneys." Winslow, 706 P.2d at 794; accord Shotkin, 116 Colo. at 298, 180 P.2d at 1022 (noting that frivolous pro se litigation cannot be curbed through this court's disciplinary authority over members of the bar).

Respondent's conduct is at least as egregious as the conduct of those we enjoined from appearing pro se in Winslow, Howard, Dunlap, Spencer, and Shotkin. His actions clearly demonstrate that he seeks to use the judicial process in order to disrupt the lives of his adversaries. See Winslow, 862 P.2d at 924. Moreover, Respondent's constant, duplicitous, and groundless complaints and appeals "have resulted in an unjustifiable burden on the judicial process and are contrary to the public interest." Id. Where, as here, monetary penalties are ineffective and our disciplinary authority cannot curb the litigant's transgressions because he is not licensed, an injunction is the proper recourse. See id. at 923-24. The scope of this injunetion, however, requires careful consideration.

Although in the past, we have simply enjoined the offending party from proceeding pro se in the courts of this state, see Winslow, 862 P.2d at 924; Howard, 640 P.2d at 1130; Dunlap, 623 P.2d at 411; Spencer, 185 Colo. at 382, 524 P.2d at 1087; and Shotkin, 116 Colo. at 298-99, 180 P.2d at 1022, we hesitate to impose that remedy here. In his brief to this court, Respondent claims that because he is indigent, an order preventing him from appearing without counsel will effectively prevent him from appearing at all. This, he argues, deprives him of his constitutional right of access to the courts of this state. We have never considered this issue. Doing so now, we find that there is some merit in Respondent's argument.

Because an injunction limiting a party's right to proceed pro se impinges on his constitutional right of access to the courts, it must be narrowly tailored. Respondent is incarcerated and claims he is indigent. Indeed, he has been granted permission to proceed in forma pauperis in a number of cases in the past few years. We are therefore wary of conditioning his access to the courts on the requirement that counsel represent him.

Addressing this same issue in the federal context, both the Tenth Cireuit and the Eleventh Cireuit have reversed district court orders conditioning access to the federal courts solely on representation by an attorney. See Colo. ex rel. Colo. Judicial Dept. v. Fleming, No. 89-1040, slip op. (10th Cir. Oct. 10, 1989) (reproduced in relevant part on remand in Colorado ex rel. Colo. Judicial Dep't. v. Fleming, 726 F.Supp. 1216, 1220 (D.Colo.1989); Procup v. Strickland, 792 F.2d 1069, 1071 (11th Cir.1986). In Procup v. Strickland, 567 F.Supp. 146 (M.D.Fla.1983), the federal district court enjoined Robert Procup from filing any complaints with the court without the aid of an attorney. Id. at 146. It observed that virtually every action filed by Procup had been brought pursuant to 42 U.S.C. § 1983 and thus, given the provision for recovery of attorney's fees in 42 U.S.C. § 1988, if Procup had an arguably meritorious claim, he could find an attorney to bring it before the court. Id. at 160. The district court also noted the availability of legal assistance to indigent inmates from Florida Institutional Legal Services, Inc. Id. It therefore concluded that requiring Procup to be represented by counsel would not deprive Procup of meaningful access to the federal courts. Id. at 162.

The Eleventh Circuit reversed. It concluded that Procup's reputation and his history of suing lawyers "may well foreclose him from filing any suits at all." Procup, 792 F.2d at 1071. Private attorneys, the court reasoned, might well be unwilling to devote the time and effort necessary to sift through Procup's generally frivolous claims to see if there is one of sufficient merit to undertake legal representation, and a legitimate claim could well go undiscovered. Even the legal services office would be deterred from representing such a difficult client, the court reasoned. Id. "With the premise that Procup would simply be unable to get any attorney to represent him, the injunction effectively enjoins Procup from filing any suit. An absolute bar against a prisoner filing any suit in federal court would be patently unconstitutional." Id.; see also Colo. ex rel. Colo. Judicial Dep't, 726 F.Supp. at 1220; Winslow v. Romer, 759 F.Supp. 670, 677-78 (D.Colo.1991).

We find this reasoning both persuasive and applicable. Indeed, given that attorney's fees generally would not be recoverable in the types of actions filed by Respondent, his chances of obtaining free representation are even less than Procup's. We therefore hold that Respondent may proceed pro se, but only if he first obtains permission of the court in which he intends to file the action. This permission must be obtained in the following manner, which we adapt from the Colorado Federal District Court's opinions in Colorado ex rel. Colo. Judicial Dep't and Winslow v. Romer.

To obtain leave of the court in which Respondent intends to bring a claim, he must file with that court: (1) a petition requesting permission to file a pro se action; (2) an affidavit in proper legal form as directed below; and (8) a copy of the complaint or claims sought to be filed in the district.

The petition requesting permission to file a pro se action shall contain the following:

(1) a copy of this opinion, and a statement advising the court that the petition to file a pro se action is being submitted pursuant to this opinion;
a statement advising the court whether any defendant to the lawsuit was a party, litigant, judge, attorney, court officer, public official or participant to, or was any way involved in, any prior lawsuit involving Respondent;
a list of all lawsuits in the courts of this state, the United States District Court for the District of Colorado; and the Court of Appeals for the Tenth Cireuit in which Respondent was or is a party. This list shall include the name, case number, and citation, if applicable, of each case; a statement indicating the nature of Respondent's involvement in the lawsuit; and its current status or disposition. If judgment was rendered against Respondent, he must indicate the amount of the judgment, the amount of the judgment that remains outstanding, if any, and the reasons that amount remains outstanding. Respondent must also identify the procedural or monetary sanctions, assessment of attorney fees, contempt orders, or jail sentences arising out of a civil prosecution imposed against him by any court, including all appellate courts, if any. Respondent shall include a brief statement explaining the sanctions, contempt order, attorney fees or jail sentence imposed; the type or amount of sanctions; the outstanding amount of any sanctions or attorney fees; and the current status or disposition of the matter.

The affidavit that we require Respondent to submit to the court in which he intends to file an action shall be in proper form, and shall contain the following recitals:

(1) that the claim or claims Respondent wishes to present have never before been raised by him and disposed of by any state or federal court and are not, to the best of his knowledge, barred by collateral estoppel or res judicata;
(2) that to the best of his knowledge the claim or claims are not frivolous or taken in bad faith; that they are well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; that the lawsuit is not interposed for any improper purpose, such as to harass, cause unnecessary delay or needless increase in the cost of litigation, or to avoid the execution of a valid judgment;
(3) that the claim or claims are not meant to harass any judicial officer, attorney, individual, organization, or entity; and
(4) that in prosecuting the action, Respondent will comply with all state and local rules of procedure, including those requiring service to other parties of all pleadings and papers filed with the court and will provide the court with acceptable proof that such service was made.

Finally, we require Respondent to submit a copy of the complaint he intends to file and any other documents associated therewith.

Based on these documents, the court in which Respondent intends to file his action shall either approve or disapprove the petition for leave to file a pro se complaint. In doing so, the court shall consider:

(1) whether Respondent has complied with this opinion;
(2) whether Respondent's complaint complies with the Colorado Rules of Civil Procedure and the Local Rules of Practice;
(8) whether the complaint is frivolous, abusive, harassing, or malicious;
(4) whether the claims raised in Respondent's complaint have been previously adjudicated by any state or federal court; .
(5) whether Respondent has complied in all respects with C.R.C.P. 11;
(6) whether the complaint alleges claims against judges, court officials, public officers, or any other individuals who may have immunity from suit; and
(7) whether the complaint meets such other reasonable requirements established by the court in which Respondent intends to file his action.

The court shall not otherwise address the merits of the complaint at this stage.

IH. CONCLUSION

Respondent, Paul Williams, is hereby enjoined from proceeding as a proponent of any claim in the courts of the State of Colorado without the representation of any attorney licensed to practice in this state, unless he has first obtained permission to proceed pro se in accordance with the procedures set forth herein. As to the cases now pending, Respondent is ordered to comply with this opinion within forty-five days. If he does not, the court in which the action is pending may dismiss the action. With these modifications, we make the rule absolute.

      . The court records indicate that Respondent has also filed suits under the aliases Paul Chayne Williams, Paul C. Williams, Ronald Lee Stewart, and Ronald L. Stewart.

      . Respondent has also sued at least one other witness who testified against him in a criminal case. See Williams v. Young, No. 01CV1591 (El Paso County Dist. Ct.). This case was dismissed.

      . Respondent is still free to proceed pro se in his own defense.


author: Judge KAPELKE.

text:
    HOME DEPOT USA, INC., Petitioner-Appellant, v. PUEBLO COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee, Colorado State Board of Assessment Appeals, Appellee.
    No. 00CA2328.
    Colorado Court of Appeals, Div. L.
    May 9, 2002.

      Munger Chadwick, P.L.C., Mark E. Chadwick, Tueson, Arizona, for Petitioner-Appellant.
    Daniel C. Kogovsek, Pueblo County Attorney, Tami Yellico, Assistant County Attorney, Terry Hart, Assistant County Attorney, Pueblo, Colorado, for Respondent-Appellee.
    No Appearance for Appellee.
   Opinion by

Judge KAPELKE.

In this property tax case, petitioner, Home Depot USA, Inc. (taxpayer), appeals from an order of the Board of Assessment Appeals (BAA) concerning the taxable personal property at taxpayer's store in Pueblo County. The BAA rejected taxpayer's challenges to the valuation and classification of the subject property for the 1998 and 1999 tax years, as assigned by the county assessor and previously upheld by respondent, the Pueblo County Board of Commissioners (BOCC). We affirm.

After taxpayer's petition for abatement or refund was denied by the BOCC, taxpayer appealed to the BAA. In de novo evidentiary proceedings before the BAA, taxpayer and the BOCC presented evidence in support of their opposing valuation and classification positions.

Taxpayer's appraisal witness valued the subject property, hundreds of items of per-somal property at the store, at a total of $480,940 for each of the two tax years. In reaching this valuation, the witness relied primarily on a market approach analysis, using certain used equipment pricing guides when available and pricing information from various web sites for other items. The items were valued as of December 31, 1998, and this valuation was applied to both tax years.

Taxpayer's valuation did not include certain items that taxpayer contended should be classified as real property, rather than as personal property. Specifically, taxpayer's appraisal witness asserted that a pneumatic tubing system used for cash deliveries within the building and a sensormatic system in the building used to prevent theft constituted real property fixtures. That witness also opined that exterior signs and nonfunctioning kitchen and bath displays constructed in the building should be classified as real property.

In contrast, the BOCC presented evidence in support of the county assessor's valuation of the subject property at a total of $1,455,586 for the 1998 tax year, and $1,458,828 for the 1999 tax year. These valuations were based solely on the application of a cost approach analysis and included those items in dispute that taxpayer contended were properly classified as real property.

Following the hearing, the BAA denied taxpayer's petition, thus upholding the valuation and classification of the subject property assigned by the county assessor. Although the BAA found the market approach to be an appropriate methodology here, it ultimately found taxpayer's market approach evidence to be unpersuasive because of various deficiencies. Based on its consideration of all the valuation evidence, the BAA found that there was insufficient information to determine an accurate valuation under the market approach, but found that the BOCC's cost approach evidence was sufficient to show that the assigned valuations were correct. The BAA was also ultimately persuaded that each of the disputed items should be classified as personal property.

1.

Taxpayer first contends that the BAA's valuation determinations cannot stand because the assessor and the BAA failed to give appropriate consideration to the market approach as required by law. We perceive no reversible error in the BAA's rulings on the valuation issues under the applicable standard of review.

As noted by taxpayer, a reviewing court must set aside a BAA decision if it reflects a failure to abide by the statutory scheme for calculating property tax assessments. Bd. of Assessment Appeals v. E.E. Sonnenberg & Sons, Inc., 797 P.2d 27 (Colo.1990); see § 24-4-106(7), (11)(e), C.R.8.2001.

By statute, the valuation of personal property for property tax purposes must be determined by "appropriate consideration" of such of the three appraisal approaches as are applicable to the appraisal of the property, that is, the cost approach, the market approach, and the income approach. Sections 39-1-108(5)(a), 89-1-104(12.3)(a)(I), CRS. 2001.

Consequently, if an approach to value is applicable, it must be given appropriate consideration by the assessor, as well as by the BAA, as the trier of fact. Cherry Hills Country Club v. Bd. of County Comm'rs, 832 P.2d 1105 (Colo.App.1992); see Bd. of Assessment Appeals v. E.E. Sonnenberg & Sons, Inc., supra.

In this regard, we note that the proceedings before the BAA were de novo and that the scope of our review is limited to the propriety of the BAA's determinations, not those of the assessor. See §§ 39-2-125(1)(f), 89-10-114.5(2), C.R.S.2001. Thus, if the BAA's determinations are sustainable, any impropriety in the limited extent of the assessor's consideration of the market approach would be harmless error, providing no basis for reversal of the BAA's ruling. See Cherry Hills Country Club v. Bd. of County Comm'rs, supra; see also Johnston v. Park County Bd. of Equalization, 979 P.2d 578 (Colo.App.1999).

Contrary to taxpayer's argument, the BAA did not disregard or fail to consider its valuation evidence under the market approach. Rather, the BAA expressly considered and weighed that evidence, but ultimately found it unpersuasive.

The BAA noted that taxpayer's appraisal witness failed to provide descriptive testimony and supporting documentation specifically indicating how he derived his market valuations of numerous personal property items from his pricing sources. For example, the year of manufacture was not provided for any of the personal property items, and make and model information was lacking as to numerous items. Taxpayer also did not submit any detailed information from the used equipment pricing guides themselves.

The BAA further noted that taxpayer's appraisal witness applied the same valuation to both tax years, notwithstanding the additions and deletions of various items of personal property from year to year, thus calling into question the accuracy of the inventory upon which taxpayer's valuations were based. Taxpayer's appraisal witness also apparently used the same pricing information for each tax year, without adjustment for any particular tax year.

The BOCC's valuation witness, a personal property department supervisor in the assessor's office, testified that he had considered all three approaches to valuation before determining the property's value. - He ultimately based the valuation on the cost approach. He elected not to use the income approach because none of the property items were leased, and he did not use the market approach because he had been unable to find any comparable sales in the jurisdiction. He further noted that the assessor's office had attempted to find sales outside the jurisdiction, but because Home Depot deals directly with the manufacturer, comparable sales information was unavailable.

The BAA concluded that the market value approach was an appropriate method of valuation, but that without detailed information on the source and year of manufacture, it was difficult to determine whether the taxpayer's market valuation was correct.

It is the function of the BAA, not a reviewing court, to weigh the evidence and resolve any conflicts. Bd. of Assessment Appeals v. E.E. Sonnenberg & Sons, Inc., su-pro. Moreover, the BAA, as the trier of fact, is not bound to accept as dispositive even the uncontroverted evidence of a single party, but may properly consider any reasonable inferences and cireumstances tending to weaken or discredit such evidence. Weingarten v. Bd. of Assessment Appeals, 876 P.2d 118 (Colo.App.1994).

Under the applicable standard of review, we will not reweigh the evidence presented or substitute our judgment for that of the BAA as to its factual determinations ultimately crediting the BOCC's cost approach valuations and discrediting taxpayer's market approach valuations.

Because the BAA's factual findings as to the appropriate valuation of the subject property for the 1998 and 1999 tax years are supported by competent and substantial evidence in the record as a whole, its valuation determinations will not be disturbed on review. See § 24-4-106(7), (11)(e); Lawrence v. Bd. of Equalization, 989 P.2d 232 (Colo.App.1999).

IL.

Next, taxpayer contends that the BAA erroneously classified each of the disputed items as personal property. Again, we find no basis for reversal.

The ultimate determination as to the appropriate classification of property for property tax purposes involves mixed issues of law and fact. Thus, under the applicable standard of review, the BAA's classification determinations must be sustained if they have a reasonable basis in law and are supported by substantial evidence in the record as a whole. Johnston v. Park County Bd. of Equalization, supro; see § 24-4-106(7), (11)(e).

Furthermore, the burden of proof in BAA proceedings is on the taxpayer to establish the basis for any reclassification claims concerning the subject property. See Paimer v. Bd. of Equalization, 957 P.2d 348 (Colo.App.1998); see also Johnston v. Park County Bd. of Equalization, supra.

For property tax purposes, "personal property" is generally defined as everything that is the subject of ownership and that is not included within the term "real property." Section 89-1-102(11), C.R.98.2001. Pursuant to § 89-1-102(14)(c), C.R.S$.2001, "real property" is defined as including "improvements," which, pursuant to § 39-1-102(7), C.R.S. 2001, include all structures, buildings, and fixtures erected upon or affixed to land.

The term "fixtures" is generally defined as items that, although onee movable chattels, have become an accessory to and a part of real property by having been physically incorporated in or affized to it. Section 89-1-102(4), C.R.S.2001. Nevertheless, these statutory provisions go on to exclude from the definition of "fixtures" "machinery, equipment, or other articles related to a commercial or industrial operation which are affixed to the real property for proper utilization of such articles." Such items are specifically included within the statutory definition of "personal property" under corresponding provisions of § 89-1-102(11).

A. The Pneumatic and Sensormatic Systems

The pneumatic and sensormatie systems have been affixed to or physically incorporated in the building and serve different business needs in the operation of taxpayer's store. Taxpayer sought to reclassify these items from personal property to real property as fixtures, but the BAA was not persuaded.

In distinguishing between real property fixture systems and personal property items under the foregoing statutory provisions, a division of this court ruled that a distinction must be drawn between items that are related to the operation of a building in general and items that are related to the operation of a business in the building. Del Mesa Farms v. Bd. of Equalization, 956 P.2d 661 (Colo.App.1998). Specifically, the division in that case held that, regardless whether a particular item is affixed to a building and may otherwise constitute a fixture, the item constitutes personal property if its use is primarily tied to a business operation.

Applying this test, the BAA ruled that the pneumatic and sensormatic systems are primarily tied to the business operations of taxpayer and should therefore be classified as personal property. Because these classification determinations have a reasonable basis in law under § 89-1-102(4), (11) and are supported by the evidentiary record, the BAA's ruling as to these items will not be disturbed on review. See § 24-4-106(7), (11)(e); Del Mesa Farms v. Bd. of Equalization, supra.

Contrary to taxpayer's argument, it is immaterial whether these systems could also be used by other types of businesses that could occupy the building. The determinative issue is whether these items are primarily related to business operations in the building, as opposed to primarily serving the operations of a building in general. See Del Mesa Farms v. Bd. of Equalization, supra.

, , We also note that, in support of its arguments in this regard, taxpayer relies on certain provisions in a former version of one of the reference manuals published by the Property Tax Administratq (PTA). However, the PTA has since revised this reference manual concerning this issue, and it now incorporates the test set forth in Del Mesa Farms. See 5 Assessors Reference Library § II, at 2.21 (rev.Mar.2000).

B. The Kitchen and Bath Displays and the Exterior Signs

The kitchen and bath displays and the exterior signs have also been affixed to the building or the land. Taxpayer sought to reclassify these items from personal property to real property improvements, but again the BAA was not persuaded.

Resolving the conflicts in the evidence concerning these items adversely to taxpayer's position, the BAA found that the kitchen and bath displays are of a temporary nature, having a considerably shorter life than that of the building itself, and that the signs are not pelimanently attached, but instead could be easily removed. Based on these factual determinations, the BAA ruled that there was an insufficient basis to reclassify these items from personal property to real property.

Again, we may not reweigh the evidence presented or substitute our judgment for that of the BAA on such factual matters. The BAA's classification determinations as to these items must be sustained on review, because they have a reasonable basis in law and are supported by substantial evidence in the record as a whole. See $ 24-4-106(7), (11)(e); Johnston v. Park County Bd. of Equalization, supra.

20. . Taxpayer's remaining contentions of error are also unpersuasive.

Finally, in view of our disposition of the issues, we need not address the alternative arguments advanced by the BOCC.

The BAA's order is affirmed.

Judge METZGER and Judge ROTHENBERCG concur. -


author: Judge DAVIDSON.

text:
    CINAMERICA THEATRES, L.P.; Cinema Saver Theatre Corporation; and United Artist Theatre Circuit, Inc., Plaintiffs-Appellants, v. CITY OF BOULDER, a political subdivision of the State of Colorado, and Stephen T. Honey, an individual, solely in his capacity as the City Manager of the City of Boulder, Defendants-Appellees.
    No. 01CA0374.
    Colorado Court of Appeals, Div. V.
    May 9, 2002.

      Joseph H. Thibodeau, P.C., Joseph H. Thi-bodeau, Denver, CO; Barry J. London, Sun-river, OR, for Plaintiffs-Appellants.
    Joseph N. de Raismes, III, City Attorney, Alan E. Boles, Jr., First Assistant City Attorney, Boulder, CO, for Defendants-Appel-lees.
   Opinion by

Judge DAVIDSON.

Plaintiffs, Cinamerica Theatres, L.P., Cinema Saver Theatre Corporation, and United Artist Theatre Circuit, Inc., appeal from the judgment entered in favor of defendants, City of Boulder and Stephen T. Honey as City Manager of the City of Boulder, applying an intermediate scrutiny standard to determine that the Boulder admissions tax, B.R.C. § 3-4-1, et seq. (1981), is not unconstitutional as applied to plaintiffs. We affirm.

Under B.R.C. $ 3-4-2, the City imposes an excise tax of five percent on the "price paid to gain admission to any place or event in the city that is open to the public." The term "place or event open to the public" is defined as:

[Alny place or event, the admission or access to which is open to members of the public upon payment of a charge or fee. This term includes, without limitation, the following places and events when a charge or fee for admission to such places and events is imposed upon members of the public:
(1) Any performance of a motion picture, stage show, play, concert, or other manifestation of the performing arts;
(2) Any sporting or athletic contest, exhibition, or event, whether amateur or professional;
(8) Any lecture, rally, speech, or dissertation;
(4) Any showing, display, or exhibition of any type, such as an art exhibition; and
(5) Any restaurant, tavern, lounge, bar, or club, whether the admission is called a "cover charge," "door charge," or any other such term.

B.R.C. § 8-1-1.

The tax is imposed upon the person who pays to gain admission, but is to be collected by the person charging admission. BR.C. § 3-4-3. However, rather than charging its customers the amount of the tax, plaintiffs chose to pay the tax out of general operating revenue. While the tax is imposed on other activities in the City at the same rate, plaintiffs' movie theaters paid between approximately fifty-eight and seventy-seven percent of the total tax collected by the City in the years 1998-1997.

Each plaintiff filed a claim for a refund of the amount of tax paid, which the City denied. Plaintiffs brought an action seeking a review of that denial pursuant to C.R.C.P. 106(a)(4). Plaintiffs also filed an action seeking a declaration that the Boulder admissions tax is unconstitutional as applied and an injunction prohibiting the City from enforcing or collecting the tax. The trial court consolidated the two actions.

This is the second time this case has come before this court. Initially, the trial court granted defendants' cross-motion for summary judgment. It applied an intermediate scrutiny standard, determining that the tax was constitutional and affirming the City's administrative decision denying plaintiffs' claims for refunds. In the first appeal, a division of this court determined that, although the tax is neutral on its face, a strict scrutiny standard might be appropriate if the tax were content based in application. The division remanded the case for additional factfinding and directed the trial court to determine:

whether the tax is being applied disproportionately to a small group of businesses engaged in protected activity; if so, whether this triggers the strict scrutiny test, rather than the intermediate serutiny test; and after application of the appropriate standard, whether the tax is violative of the Theatres' constitutional rights.

Cinamerica Theatres, L.P. v. City of Boulder, (Colo.App. No. 98CA0340, July 8, 1999)(not selected for official publication)(Ci-namerica I ).

The trial court determined on remand that the tax is not content based in application, the intermediate serutiny standard is appropriate, and the tax is not unconstitutional. This second appeal followed.

Plaintiffs' primary contention on appeal is that the trial court erred in applying an intermediate serutiny standard. We perceive no error.

Generally, the standard of review for laws burdening First Amendment rights is determined by first examining whether the laws are content based. "[Rlegulations that suppress, disadvantage, or impose differential burdens upon speech because of its content" are subject to strict serutiny, while "regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497, 517 (1994). See also Denver Publ'g Co. v. City of Aurora, 896 P.2d 306 (Colo.1995). However, in cases dealing with taxation of the press, strict serutiny may be applied in certain cireumstances even when a provision is content neutral. See Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991); Minneapolis Star & Tribune Co. v. Minmesota Comm'r of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983).

Plaintiffs specifically rely on Minneapolis Star, supra, to contend that a strict serutiny standard is applicable and that the admissions tax is unconstitutional as applied because it is imposed "almost exclusively" on a small number of taxpayers that are engaged in activities likely to be protected by the First and Fourteenth Amendments to the U.S. Constitution and article II, section 10 of the Constitution of the State of Colorado. We disagree.

I.

Minmeapolis Star is one of a series of Supreme Court cases involving selective taxation of the press. Prior to Minneapolis Star, the Supreme Court invalidated a tax on advertisements that was imposed solely on newspapers over a certain cireulation size, noting:

The form in which the tax is imposed is in itself suspicious. It is not measured or limited by the volume of advertisements. It is measured alone by the extent of the cireulation of the publication in which the advertisements are carried, with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers.

Grogjean v. American Press Co., 297 U.S. 233, 251, 56 S.Ct. 444, 449, 80 L.Ed. 660, 669 (1936).

Minneapolis Star involved a use tax imposed on the paper and ink used in publications, with an exemption for the first $100,000 of ink and paper. The Supreme Court first noted that Grosjean was not dis-positive because the result there was attributable, at least in part, to improper motives on the part of the enacting legislature. Absent any evidence of improper motivations on the part of the Minnesota legislature, the Court nevertheless found the tax to be unconstitutional on two other grounds. First, it was facially discriminatory in that it was not a generally applicable tax, but was a "special tax" imposed only on certain publications protected by the First Amendment and was the only tax imposed on nonretail sales. Second, the $100,000 exemption had the effect of targeting a small subset of newspapers for taxation without a legitimate justification, "Lalnd when the exemption selects such a narrowly defined group to bear the full burden of the tax, the tax begins to resemble more a penalty for a few of the largest newspapers than an attempt to favor struggling smaller enterprises." Minneapolis Star, supra, 460 U.S. at 592, 103 S.Ct. at 1375, 75 L.Ed.2d at 309.

A subset of a particular type of press, namely magazines, was also targeted in Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987), which involved a sales tax exemption for religious, professional, trade, and sports journals, but not other magazines. The Supreme Court found this scheme to be "a more disturbing use of selective taxation than Minneapolis Star, because the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content." Arkansas Writers' Project, Inc. v. Ragland, supra, 481 U.S. at 229, 107 S.Ct. at 1728, 95 L.Ed.2d at 219-20.

Subsequently, the Supreme Court decided Leathers v. Medlock, supra, which involved a sales tax exemption for newspapers, magazines, and, for a time, satellite television, but not for cable television. The Court addressed the question whether a tax imposed on only selected segments of the media violated the First Amendment. In first discussing Grosjean, Minneapolis Star, and Arkansas Writers' Project, the Court noted that there are three general situations in which strict serutiny is appropriate:

These cases demonstrate that differential taxation of First Amendment speakers is constitutionally suspect when it threatens to suppress the expression of particular ideas or viewpoints. Absent a compelling justification, the government may not exercise its taxing power to single out the press. The press plays a unique role as a check on government abuse, and a tax limited to the press raises concerns about censorship of critical information and opinion. A tax is also suspect if it targets a small group of speakers. Again, the fear is censorship of particular ideas or viewpoints. Finally, for reasons that are obvious, a tax will trigger heightened scrutiny under the First Amendment if it discriminates on the basis of the content of taxpayer speech.

Leathers v. Medlock, supra, 499 U.S. at 447, 111 S.Ct. at 1443-44, 113 L.Ed.2d at 503-04 (citations omitted).

The Court in Leathers found that none of these three types of discrimination was present, noting that the tax was a general sales and use tax and did not single out the press; it was not imposed only on some cable and satellite systems; it was not content based; there was "no indication ... that Arkansas has targeted cable television in a purposeful attempt to interfere with its First Amendment activities"; and the tax was not "structured so as to raise suspicion that it was intended to do so." Leathers, supra, 499 U.S. at 448, 111 S.Ct. at 1444, 113 L.Ed.2d at 504.

The Court in Leathers next addressed whether the fact that the tax was imposed on some First Amendment speakers, but not others, constituted "an additional basis" for concluding that the tax violated the plaintiffs' First Amendment rights. In finding that it did not, the Court held that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas." Leathers, supra, 499 U.S. at 453, 111 S.Ct. at 1447, 113 L.Ed.2d at 507-08.

Grosjean, Minneapolis Star, Arkansas Writers' Project, and Leathers each involved taxes imposed on the press, and the Court there relied, at least in part, on the role of the press "as a watchdog of government activity." Leathers, supra, 499 U.S. at 447, 111 S.Ct. at 1444, 113 L.Ed.2d at 504. While exhibition of commercial motion pictures is expression subject to protection under the First Amendment and article II, section 10 of the Colorado Constitution, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Houston v. Manerbino, 185 Colo. 1, 521 P.2d 166 (1974), it is not always considered to be a part of the "press." See David A. Anderson, Freedom of the Press, 80 Tex. L.Rev. 429 (Feb.2002). But see In re Hearings Concerning Cannon 35, 132 Colo. 591, 593, 296 P.2d 465, 467 (1956)("freedom of the press is not confined to newspapers or periodicals, but is a right of wide import and '... in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion' ").

In any event, other activities that plaintiffs allege are the target of the tax clearly fall into the category of "speech" rather than the "press," and for purposes of this appeal, we will assume, without deciding, that the reasoning of the Supreme Court cases applies not only to taxation of the press, but also to taxation of other protected speech. See People v. Seven Thirty-Five E. Colfax, Inc., 697 P.2d 348 (Colo.1985)(article II, section 10 of the Colorado Constitution provides broader protection than the First Amendment).

IL.

Plaintiffs appear to concede that Boulder's admissions tax does not, on its face, single out movie theaters, apply only to a subset of movie theaters, or discriminate based on content. And, the tax applies to all places or events for which a price is charged for admission, regardless whether the activity involves protected speech and regardless of content. See also Communications & Cable of Chicago, Inc. v. City of Chicago, 282 Ill.App.3d 1038, 1050-51, 218 Ill.Dec. 200, 668 N.E.2d 1032, 1040 (1996)(amusement tax applied to a wide variety of activities and events found to be a tax of general applicability).

Plaintiffs contend, however, that the trial court erred in determining that, absent censorial motivation, the tax was not content based in operation and thus not unconstitutional as applied. We disagree.

Plaintiffs are correct that "[ilicit legislative intent is not the sine gua non of a violation of the First Amendment." Minneapolis Star, supra, 460 U.S. at 592, 103 S.Ct. at 1376, 75 L.Ed.2d at 309. However, Minneapolis Star and other cases dispensing with proof of legislative intent to censor the press involved statutes that were differential or content based on their face, such that improper intent could be inferred. Minneapolis Star, supra, 460 U.S. at 585, 103 S.Ct. at 1372, 75 L.Ed.2d at 305 ("differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression"). See also Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991)("Son of Sam" law was content based on its face, so evidence of improper censorial motive was unnecessary).

When, as here, the tax is generally applicable and content neutral on its face, it will not be subjected to strict serutiny unless there is evidence of a legislative "interest in censoring the expressive activities" of the taxed speaker or evidence that the tax is "likely to stifle the free exchange of ideas." Leathers, supra, 499 U.S. at 453, 111 S.Ct. at 1447, 113 L.Ed.2d at 508.

Where an intent to censor expressive activities is shown, the regulation is deemed content based. "[E)ven a regulation neutral on its face may be content-based if its manifest purpose is to regulate speech because of the message it conveys," and whether the purpose of a challenged provision is to regulate a particular message may be revealed in its design and operation. See Turner Broad. Sys., Inc. v. FCC, supra, 512 U.S. at 645, 114 S.Ct. at 2461, 129 L.Ed.2d at 520. See also Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 738 (1st Cir.1995)(an ordinance is content based "if the municipality differentiates between speakers for reasons unrelated to the legitimate interests that prompted the regulation"); News Am. Publ'g, Inc. v. FCC, 844 F.2d 800, 804-05 (D.C.Cir.1988)("Where legislation affecting speech appears underinelusive, i.e., where it singles out some conduct for adverse treatment, and leaves untouched conduct that seems indistinguishable in terms of the law's ostensible purpose, the omission is bound to raise a suspicion that the law's true target is the message."); Regal Cinemas, Inc. v. City of Mayfield Heights, 137 Ohio App.3d 61, 738 N.E.2d 42 (2000)(admissions taxes in four cities, under which movie theaters paid eighty-eight to one hundred percent of the tax, but other entities were also subject to the tax, was not structured in a way that indicated the cities' intent was to suppress certain ideas, and therefore strict scrutiny was not required).

On remand, the trial court found no indication from the design or operation of the tax that the City's purpose was to burden a particular message or that there was a threat of such a burden, despite the fact that plaintiffs paid the majority of the tax. We agree that there is no evidence in the record of actual or threatened suppression of, or a legislative intent to burden, particular ideas or viewpoints. There is no evidence that the tax was imposed selectively on plaintiffs events, and plaintiffs were required to remit a high amount of tax solely because they enjoyed a correspondingly high, amount of business. Thus, we also conclude that the tax is not content based in operation and does not demonstrate intent on the part of the City to burden plaintiffs' speech.

TIL

Plaintiffs contend, nevertheless, that strict serutiny is required. Specifically, noting that ninety percent of the tax is collected from ten or fewer businesses and that plaintiffs pay between approximately fifty-eight and seventy-seven percent of the tax, plaintiffs contend that the tax is thus imposed on a small number of speakers, places a "disproportionate burden" on their First Amendment activities, and provides the "potential for abuse," such that strict serutiny is automatically required under Leathers and Minneapolis Star. We disagree.

A.

Although the majority in Minneapolis Star stated that the Minnesota tax violated the First Amendment because it "target[ed] a small group of newspapers," that tax was imposed on only a portion of all newspapers without a sufficient justification for the differential treatment. Minneapolis Star, supra, 460 U.S. at 591-92, 103 S.Ct. at 1375, 75 L.Ed.2d at 308-09.

Similarly, when the majority in Leathers referred to the total number of cable operators affected by the tax in determining that the tax did not resemble a penalty on a few speakers, it was noting only that the tax was structurally dissimilar to that in Arkansas Writers' Project. In contrast to the tax in Arkansas Writers' Project, which was limited to only a few of the magazines in the state, the tax in Leathers was imposed uniformly on all "the approximately 100 cable systems then operating in the State." Leathers, supra, 499 U.S. at 448, 111 S.Ct. at 1444, 113 L.Ed.2d at 504. See also Reuters Am., Inc. v. Sharp, 889 S.W.2d 646, 652 (Tex.App.1994)("the cases in which the Supreme Court found a state tax scheme to target a small group within the press involved discrimination within the same medium").

Here, the Boulder tax applies to all movie theaters that charge admission, regardless of their size or the content of movies shown. Thus, there is no intramedium discrimination and no impermissible targeting of a small group of speakers as occurred in Minneapolis Star.

B.

Plaintiffs argue that, even in the absence of intramedium discrimination, impermissible differential treatment exists if the movie theaters paid most of the tax because the community lacked many other activities subject to the tax. They rely on several state court cases from other jurisdictions that arguably applied such a test, such as United Artists Communications, Inc. v. City of Montclair, 209 Cal.App.3d 245, 257 Cal.Rptr. 124 (1989)(admissions tax was unconstitutional burden where ninety percent of the tax was paid by two theaters and two adult bookstores, even though the tax applied to some other businesses); Festival Enterprises, Inc. v. City of Pleasant Hill, 182 Cal.App.3d 960, 227 Cal.Rptr. 601 (1986)(where a single theater paid all of the tax and there was no justification for imposing the tax solely on entertainment businesses, the tax violated the First Amendment); and Forbes v. City of Seattle, 113 Wash.2d 929, 785 P.2d 431 (1990)(admissions tax did not have a discriminatory impact on First Amendment activities where movie theaters accounted for only two dozen of several hundred entities subject to the tax and theaters paid only twenty percent of the total tax). We disagree.

We first note that each of these cases was decided prior to Leathers. Further, we agree with the trial court that the First Amendment is violated cannot depend on the quantity of events to which the public can purchase admission." Cases subsequent to those cited by plaintiffs have also rejected a test that is based solely on the number of taxpayers. See Tucson Newspapers, Inc. v. City of Tucson, 172 Ariz. 378, 837 P.2d 180 (Ariz.Ct.App.1992); Am. Multi-Cinema, Inc. v. City of Warrenville, 321 Ill.App.3d 349, 358, 255 IIL.Dec. 42, 748 N.E.2d 746, 753 (2001)((Minneapolis Star does not prohibit the enactment of a content-neutral and facially nondiscriminatory tax that primarily impacts one [Flirst [AJmendment actor due to market conditions rather than the structure of the legislation."); Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394, 401, 410 S.E.2d 652, 655 (1991)(Such an interpretation "would virtually eliminate the ability of local governments to raise operating revenues through general taxation ordinances whenever there happened to be a single, or only a few, enterprises engaging in First Amendment activities.... The number of First Amendment speakers affected is not, in our opinion, the test established in Leathers.").

Contrary to plaintiffs' argument, Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), does not say otherwise. The Court in Arcarag merely noted that heightened scrutiny was not limited to cases involving regulation of conduct containing an expressive element and cited the Minneapolis Star regulation of the purchase of paper and ink as an example.

C.

Plaintiffs argue that even if the Boulder tax is broadly based and content neutral, and does not demonstrate any legislative intent to burden a particular viewpoint, a mere "potential" for future discrimination is sufficient to render the tax subject to strict serutiny. They contend that such a potential exists here, arguing that because they pay most of the tax, the City could threaten to raise the tax based on a disagreement with their choice of movies to exhibit without the restraining force of having to impose a similar increase on other activities. This argument is closely related to plaintiffs' argument that strict scrutiny is required because the tax is imposed on a small number of taxpayers engaged in protected activities. Again, we disagree.

Most importantly, Minneapolis Star and other cases that relied on the dangers of differential taxation and the "potential for abuse" to impose a strict serutiny standard involved taxes that either targeted the press or a portion thereof, rather than being generally applicable, or were content based, neither of which is the case here. As described in Leathers, the bases for subjecting a tax to strict serutiny are limited to targeting the press as a whole, targeting only a small subset of a particular type of press, or discriminating based on content or with intent to suppress speech.

Plaintiffs present no persuasive authority to support the proposition that a statute which is content neutral and generally applicable is subject to strict scrutiny in the absence of evidence of an intent to burden a particular viewpoint or message, or a likelihood that such a burden will result. While each of the situations described in Leathers may present the "potential for abuse," that potential alone is not the test for application of strict serutiny. See Leathers, supra, 499 U.S. at 449-50, 111 S.Ct. at 1445, 113 L.Ed.2d at 505 (rejecting idea that "interme-dia and intramedia discrimination, even in the absence of any evidence of intent to suppress speech or of any effect on the expression of particular ideas, violates the First Amendment"); Am. Multi-Cinema, Inc. v. City of Warrenville, supra (absent evidence of intent to discriminate, tax was not subject to strict scrutiny even though a single movie theater paid ninety-nine percent of the tax and the city was lax in enforcing collection of the tax from other entities).

Additionally, we see little potential for abuse here. While plaintiffs allege that the tax is imposed "almost exclusively" on them, they acknowledge that it is also imposed on other activities, some protected by the First Amendment and others not. The other taxed places and events are as diverse as Broadway-style dinner theater, live striptease and nude dancing, music concerts and live performances, theatrical performances, radio shows, ballet performances, dance parties, fundraising events, bars and nightclubs, and foot races. Any increase in the tax rate would also be borne by these other activities and events. Thus, contrary to plaintiffs' assertion, a restraining force exists to prevent the City from changing the tax based solely on plaintiffs' choice of movies to exhibit. Moreover, because the activities covered by the tax are so diverse, the tax does not affect a limited range of views and does not "threaten[ ] to suppress the expression of particular ideas or viewpoints." See Leathers, supra, 499 U.S. at 447, 111 S.Ct. at 1443, 113 L.Ed.2d at 503.

In sum, we conclude that the trial court correctly determined on remand that, even if plaintiffs in fact pay most of the admissions tax, the applicable standard is the intermediate scrutiny test. Furthermore, plaintiffs do not challenge the trial court's determination that, under that standard, the tax is not unconstitutional.

Accordingly, the judgment is affirmed.

Judge CASEBOLT and Judge NIETO concur.