author: Justice RICE Justice COATS,

text:
    EVERGREEN HIGHLANDS ASSOCIATION, a Colorado non-profit corporation, Petitioner, v. Robert A. WEST, Respondent.
    No. 02SC242.
    Supreme Court of Colorado, En Banc.
    June 16, 2003.
    Rehearing Denied July 21, 2003.

    Davis Graham & Stubbs, LLP, Andrew M. Low, Sonaly A. Kirkley, Denver, Colorado, Orten & Hindman, P.C., Jerry C.M. Orten, Wheatridge, Colorado, Attorneys for Petitioner.
    Stephen A. Groome, Conifer, Colorado, Attorney for Respondent.
    Tobey & Toro, P.C., Jeanne M. Toro, Gary H. Tobey, Englewood, Colorado, Attorneys for Amicus Curiae Mission Viejo Lot Owners.
    Lynn S. Jordan, Myra J. Lansky, Denver, Colorado, Attorneys for Amici Curiae Community Associations Institute and Mission Viejo Homeowners Association.

       Justice KOURLIS and Justice HOBBS do not participate.

   Justice RICE

delivered the Opinion of the Court.

I. INTRODUCTION

We granted certiorari in this case to determine whether, pursuant to the modification clause of the Evergreen Highlands Subdivision covenants, the requisite majority of lot owners may "change or modify" the existing covenants by the addition of a new covenant which: (1) requires all lot owners to be members of the homeowners association, (2) assesses mandatory dues on all lot owners in the subdivision to pay for the maintenance of common areas, and (8) imposes liens on those lots whose owners fail to pay the mandatory dues.

The district court held that such an amendment was valid and binding. The court of appeals reversed, finding that the modification clause of Evergreen Highlands' covenants did not allow for the addition of a wholly new covenant, but only for the modification of existing covenants. We now reverse the court of appeals, holding that the addition of a new covenant falls within the permissible scope of the modification clause of the Evergreen Highlands covenants.

We also granted certiorari on the related question of whether, in the absence of a covenant imposing mandatory dues, the homeowners association has the implied power to collect assessments from all lot owners to pay for the maintenance of common areas of the subdivision. Although Petitioner counterclaimed on this issue in the trial court, the court never reached the merits of the argument because it upheld the actual modification of the covenant; the court of appeals reversed on the same ground. The issue was nevertheless preserved for certio-rari review, and we now hold that the declarations for Evergreen Highlands were sufficient to create a common interest community by implication with the concomitant power to impose mandatory dues on lot owners to pay for the maintenance of common areas of the subdivision. We accordingly remand the issue to the court of appeals with orders to return it to the trial court for calculation of Petitioner's damages in a manner consistent with this opinion.

II. FACTS AND PROCEDURAL HISTORY

Petitioner Evergreen Highlands Association, a Colorado non-profit corporation ("As- > sociation"), is the homeowner association for Evergreen Highlands Subdivision-Unit 4 ("Evergreen Highlands") in Jefferson County. The subdivision consists of sixty-three lots, associated roads, and a 22.3 acre park area which is open to use by all residents of the subdivision. The Association holds title to and maintains the park area, which contains hiking and equestrian trails, a barn and stables, a ball field, a fishing pond, and tennis courts. The park area is almost completely surrounded by private homeowners' lots, with no fence or other boundary separating the park area from the homes. Respondent Robert A. West owns one of the lots bordering directly on the park area, and has used the facilities there to play tennis, fish, and walk his dog.

Evergreen Highlands Subdivision was created and its plat filed in 1972. The plat indicated that the park area was to be conveyed to the homeowners association. Protective covenants for Evergreen Highlands were also filed in 1972, but did not require lot owners to be members of or pay dues to the Association. The Association, however, was incorporated in 1978 for the purposes of maintaining the common area and facilities, enforcing the covenants, paying taxes on the common area, and determining annual fees. The developer conveyed the park area to the Association in 1976. Between the years of 1976 and 1995, when the modification of the covenants at issue in this case occurred, the Association relied on voluntary assessments from lot owners to pay for maintenance of and improvements to the park area. Such expenses included property taxes, insurance for the park area and its structures, weed spraying, tennis court resurfacing, and barn and stable maintenance.

Article 13 of the original Evergreen Highlands covenants provides that a majority of lot owners may agree to modify the covenants, stating in relevant part as follows:

[TJhe owners of seventy-five percent of the lots which are subject to these covenants may release all or part of the land so restricted from any one or more of said restrictions, or may change or modify any one or more of said restrictions, by executing and acknowledging an appropriate agreement or agreements in writing for such purposes and filing the same in the Office of the County Clerk and Recorder of Jefferson County, Colorado.

Protective Covenants for Evergreen Highlands-Unit 4, art. 183 (Nov. 6, 1972) (emphasis added) (hereinafter "modification clause"). In 1995, pursuant to the modification clause, at least seventy-five percent of Evergreen Highlands' lot owners voted to add a new Article 16 to the covenants. This article required all lot owners to be members of and pay assessments to the Association, and permitted the Association to impose liens on the property of any owners who failed to pay their assessment. Assessments were set at fifty dollars per year per lot.

Respondent purchased his lot in 1986 when membership in the Association and payment of assessments was voluntary, a fact that Respondent contends positively influenced his decision to purchase in Evergreen Highlands. Respondent was not among the majority of homeowners who approved the 1995 amendment to the covenants, and he subsequently refused to pay his lot assessment. When the Association threatened to record a lien against his property, Respondent filed this lawsuit challenging the validity of the 1995 amendment. The Association counterclaimed for a declaratory judgment that it had the implied power to collect assessments from all lot owners in the subdivision, and accordingly sought damages from West for breach of the implied contract. The district court ruled in favor of the Association on the ground that the amendment was valid and binding; therefore, it never reached the merits of the Association's counterclaims.

The court of appeals reversed, finding that the terms "change or modify" as set forth in the modification clause of the covenants did not allow for the addition of a wholly new covenant, but only for modifications to the existing covenants. The court examined two divergent lines of cases from other states and concluded that the particular language used in Evergreen Highlands' modification clause supported the more restrictive interpretation, based on the principle that courts should resolve any ambiguities in covenant language in favor of the free and unrestricted use of property. West v. Evergreen Highlands Ass'n, 55 P.3d 151, 154 (Colo.App.2001). The court of appeals did not address the issue of whether the Association had the implied power to collect assessments from lot owners, and therefore whether Respondent was in breach of an implied contract. We granted certiorari and now reverse and remand.

III, ANALYSIS

Interpretation of a covenant is a question of law requiring de novo review. Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860, 862 (Colo.2001). Courts must construe covenants as a whole based upon their underlying purpose, but will enforce a covenant as written if clear on its face. Id. Ambiguities will be resolved in favor of the free and unrestricted use of property. Id.; see also Newman v. Wittmer, 277 Mont. 1, 917 P.2d 926, 929 (1996) (noting that although ambiguities should be resolved in favor of the unrestricted use of property, "the free use of the property must be balanced against the rights of the other purchasers in the subdivision.").

We begin our analysis by examining the modification clause of the Evergreen Highlands covenants in order to determine if its scope is broad enough to allow for the addition of a wholly new covenant by the requisite majority of property owners. Because this is an issue of first impression in Colorado, we examine cases from other jurisdictions interpreting similar covenant modification language. We conclude that the terms "change" and "modify," as used in the Evergreen Highlands covenants, are expansive enough to allow for the addition of a new covenant. We hold that the 1995 amendment to the Evergreen Highlands covenants, approved by the requisite majority of lot owners, is valid and binding on all lot owners in Evergreen Highlands. We therefore reverse the court of appeals.

We next examine the question of whether the Association has an implied right to levy assessments against lot owners in order to maintain common areas of the subdivision. Although many subdivisions have covenants which mandate the payment of assessments for this purpose, others, such as Evergreen Highlands, do not. Without the implied authority to levy assessments, these latter communities are placed in the untenable position of being obligated to maintain facilities and infrastructure without any viable economic means by which to do so. In order to avoid the grave public policy concerns this outcome would create, we today adopt the approach taken by many other states as well as the Restatement of Property, which provides that "the power to raise funds reasonably necessary to carry out the functions of a common interest community will be implied if not expressly granted by the declaration." Restatement (Third) of Property: Servitudes § 6.5 emt. b (2000). We therefore hold that, even in the absence of an express covenant mandating the payment of assessments, the Association has the implied power to levy assessments against lot owners in order to raise the necessary funds to maintain the common areas of the subdivision.

A. Modification Clause of the Evergreen Highlands Covenants

The Association argues that the court of appeals erred when it held that the language of the Evergreen Highlands' modification clause only provided for "changes to the existing covenants, not the creation and addition of new covenants that have no relation to the existing covenants." West v. Evergreen Highlands Ass'n, 55 P.3d 151, 154 (Colo.App.2001). Specifically, the Association argues that the word "change" is broad enough to encompass not only the modification of existing covenants, but the addition of new covenants as well. Based on our analysis of the language used in the Evergreen Highlands modification clause, as well as the prevailing case law from other states, we agree.

1. The Lakeland Line of Cases

The court of appeals adopted the line of cases following Lakeland Property Owners Association v. Larson, 121 Ill.App.3d 805, T7 Ill.Dec. 68, 459 N.E.2d 1164 (1984). That case involved a situation nearly identical to the present one, in which a majority of lot owners voted to add a new covenant creating mandatory assessments and vesting the homeowner association with the power to impose liens for non-payment. Interpreting very similar covenant modification language (allowing a majority of the property owners to "change the said covenants in whole or in part," id. at 1167), the court disallowed the adoption of the new covenant. It held that "tlhe provision ... clearly directs itself to changes of existing covenants, not the adding of new covenants which have no relation to existing ones." Id. at 1169. The Lakeland reasoning has been adopted by other states.

In Caughlin Ranch Homeowners Association v. Caughlin Club, 109 Nev. 264, 849 P.2d 310 (1993), a subdivision's original covenants imposed assessments only on residential parcels, although the modification clause provided for amendment of the rates. A year after the covenants were filed, a commercial club was developed and began operations on the property. Some six years later, after control of the homeowners association had passed from the developer to the lot owners, the homeowners association amended the covenants to levy assessments against the commercial parcel. Basing its reasoning on Lakeland, the Nevada Supreme Court disallowed the amendment, holding that the covenant - modification - clause - allowing "amendments" referred only to "amendments of existing covenants as opposed to the creation of new covenants unrelated to the original covenants." Id. at 812.

In Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610, 613 (1994), the modification clause allowed the majority of the homeowners to "change [the covenants] in whole or in part." The plaintiffs' lot was allegedly rendered unbuildable when the requisite majority of the homeowners association amended an existing covenant to increase the setback requirements. - The Boyles court disallowed the additional covenant because, even though the restriction was appended onto an existing covenant, it was "new and different." Id. at 616.

Finally, in Meresse v. Stelma, 100 Wash.App. 857, 999 P.2d 1267 (2000), the covenants for a six-lot subdivision allowed a majority of the lot owners "to change or alter them [the covenants] in full or in part." Id. at 1269. Five of the lot owners voted to alter the covenants to increase the access road casement, thereby stripping the sixth lot owner of a portion of his property. The court disallowed the amendment, holding that the amendatory language of the covenants "does not place a purchaser or owner on notice that he or she might be burdened, without assent, by road relocation at the majority's whim." Id. at 1278-74.

2. The Zito Line of Cases

Despite the fact that the Lakeland reasoning has been followed by other courts as recently as 2000, the same court that decided Lakeland issued a contrary opinion in 1992 with little explanation. In Zito v. Gerken, 225 Ill.App.3d 79, 167 Ill.Dec. 433, 587 N.E.2d 1048 (1992), existing subdivision covenants granted the homeowners association the authority to modify the covenants, although the exact language of the modification clause is not provided. The homeowners association adopted mandatory assessments and disgruntled homeowners sued. This time, however, the Illinois Appellate Court held in favor of the homeowners association, holding that: "[al restrictive covenant which has been modified, altered or amended will be enforced if it is clear, unambiguous and reasonable"; "(tlhe 1987 amendment does not seek to change the character of [the subdivision] or to impose unreasonable burdens upon any lot owners"; and "the terms and conditions of the 1987 amendment impose a minimal collective burden upon the residents." Id. at 1050.

In Sunday Canyon Property Owners Association v. Annett, 978 S.W.2d 654 (Tex.Ct.App.1998), the modification language allowed the covenants, upon a majority vote of the lot owners, to be "waived, abandoned, terminated, modified, altered or changed." Id. at 656. Based on this language, the court allowed the requisite majority to adopt an amendment creating a homeowners association levying mandatory lot assessments. The court held that, despite the fact that the creation of the homeowners association

exceeded the original purpose of the right to amend contemplated by purchasers pri- or to the amendment, it is of no moment. Recognized long ago was the right of persons ... to contract with relation to their property as they see fit in the absence of contraventions of public policy and positive law. That right is derived from ownership of the property, and embraces the ability to impose on the property restrictive covenants and to abrogate or modify them.

Id. at 658 (citations omitted).

Finally, in Windemere Homeowners Association, Inc. v. McCue, 297 Mont. 77, 990 P.2d 769 (1999), a majority of homeowners voted to amend the covenants to create a homeowners association authorized to levy the costs of road maintenance against property owners. - Basing his argument on Lakeland, Caughlin, and Boyles, plaintiff homeowner challenged the amendment as an impermissible new covenant. The court, however, held that the modification clause in these covenants was "markedly different" than those in Lakeland and its progeny; specifically, the clause, like that in Sunday Canyon, allowed a majority of property owners to "waive[ ], abandon{ ], terminate[ ], modify{ ], alter[ ], or change[ ]" the covenants. Id. at 778. Consequently, the court held that this amendatory language was "broad enough" to justify the amendment. Id.

3. Application to the Evergreen Highlands Covenants

As this summary of cases from other jurisdictions iflustrates, there exists a split in the law with respect to this issue. Respondent contends that these cases can be distinguished by how narrowly or broadly the particular modification clause is written, and argues that the amendatory language in Evergreen Highlands' covenants is much more akin to the narrow language found in the Lakeland line of cases than the more expansive language found in the Zito line of cases. He therefore argues that the Lakeland reasoning should prevail here.

There is little substance to the distinction between the "broad" or "narrow" amendato-ry language upon which Respondent relies. The covenant modification language in Lake-land and Boyles allowed a majority of lot owners to "change" the covenants, 459 N.E.2d at 1167, 517 N.W.2d at 613, and in Meresse to "change or alter" the covenants. 999 P.2d at 1269. The amendatory language in Sunday Canyon and in Windemers, however, provided that the covenants could be "waived, abandoned, terminated, modified, altered or changed." 978 S.W.2d at 656, 990 P.2d at 772. In the latter cases, the first three words-"waived, abandoned, and terminated"-all deal with ending a covenant, not adding a new one, and are therefore inapplicable here. The last three words-"modified, altered, or changed"-are the same as those in the Lakeland line of cases, with the addition of "altered," which is simply a synonym for "change" and "modify." Thus, distinguishing these cases from one another based on the breadth of the language used is an artificial, and ultimately unpersuasive, distinction.

Moreover, from a linguistic standpoint, the Lakeland conclusion that "change or modify" can only apply to the alteration of existing covenants, and not the addition of new and different ones, is not well-founded. Webster defines "change" as "to make different." Webster's Third New International Dictionary 373 (1986); see also Ticor Title Ins. Co. v. Rancho Santa Fe Ass'n, 177 Cal.App.3d 726, 223 Cal.Rptr. 175, 179 (1986) ("the words 'changed' and 'modified' include any alteration whether involving an increase or decrease."). Applying this definition to the language at issue, covenants could certainly be changed or made different either by the addition, subtraction, or modification of a term. Confining the meaning of the term "change" only to the modification of existing covenants, then, seems illogically narrow.

For these reasons, we find the court of appeals' reliance on a linguistic analysis to distinguish covenant modification language unsatisfactory. We instead conclude that the different outcomes in the Lakeland and Zito lines of cases are based on the differing factual scenarios and severity of consequences that the cases present. In those cases where courts disallowed the amendment of covenants, the impact upon the objecting lot owner was generally far more substantial : and unforeseeable than the amendment at issue here. See, eg., Caughlin Ranch, 109 Nev. 264, 849 P.2d 310 (covenants previously imposing assessments only on private lots amended to assess the sole commercial parcel in the subdivision at a substantially higher rate); Boyles, 246 Neb. 181, 517 N.W.2d 610 (changed setback requirement rendered plaintiff's lot unbuilda-ble); Meresse, 100 Wash.App. 857, 999 P.2d 1267 (increased access road easement deprived plaintiff of a portion of his private lot).

In contrast, Zito, Windemere, and Sunday Canyon, like this case, all specifically considered-and allowed-the amendment of covenants in order to impose mandatory assessments on lot owners for the purpose of maintaining common elements of a subdivision. We accordingly find the Zito line of cases more applicable to the situation here. This interpretation also avoids the absurd result that could follow from application of the Lakeland reasoning; Evergreen Highlands would be unable to adopt a mandatory-assessment covenant when its original covenants were silent on the subject, yet could adopt such a covenant if its original covenants had expressly prohibited a mandatory-assessment covenant.

Moreover, the amendment at issue in this case was changed according to the modification clause of the original Evergreen Highlands covenants, and it is undisputed that Respondent was on actual notice of that clause when he purchased his lot in 1986. In addition, we note that, at fifty dollars per year, the mandatory assessment imposed on Respondent is neither unreasonable nor burdensome.To the contrary, the existence of a well-maintained park area immediately adjacent to Respondent's lot undoubtedly enhances Respondent's property value.

We conclude that the modification clause of the Evergreen Highlands covenants is expansive enough in its scope to allow for the adoption of a new covenant, and hold that the 1995 amendment to the Evergreen Highlands covenants, passed by the requisite majority of lot owners, is valid and binding on all lot owners in Evergreen Highlands.

B. The Implied Power of Homeowners Associations to Impose Mandatory Dues on Lot Owners for the Maintenance of Common Areas

The Association additionally argues that, even in the absence of an express covenant imposing mandatory assessments, it has the implied power to collect assessments from its members. To this end, the Association brought a counterclaim against West for breach of an implied contract obligating him to pay a proportionate share for repair, upkeep, and maintenance of the common area. The Association now argues that, based on West's breach of the implied contract, it is entitled as a matter of law to collect the unpaid assessments from Respondent.

We agree. Our review of case law from other states, the Restatement of Property (Servitudes), and the declarations for Evergreen Highlands in effect when West purchased his property, as supported by our understanding of the purpose of the Colorado Common Interest Ownership Act ("CCIOA"), convinces us that such an implied power exists in these circumstances. We therefore hold that Evergreen Highlands is a common interest community by implication, and that the Association has the implied power to levy assessments against lot owners to provide for maintenance of and improvements to common areas of the subdivision.

This being a question of first impression in Colorado, we first examine case law from other jurisdictions and find it largely in concurrence with our holding. When faced with this issue, a substantial number of states have arrived at the conclusion that homeowner associations have the implied power to levy dues or assessments even in the absence of express authority. See, eg., Spinnler Point Colony Ass'n, Inc. v. Nash, 689 A.2d 1026, 1028-29 (Pa.Commw.Ct.1997) (holding that where ownership in a residential community allows owners to utilize common areas, "there is an implied agreement to accept the proportionate costs for maintaining and repairing these facilities."); Meadow Run & Mountain Lake Park Ass'n v. Berkel, 409 Pa.Super. 637, 598 A.2d 1024, 1026 (1991) (same); Seaview Ass'n of Fire Island, N.Y., Inc. v. Williams, 69 N.Y.2d 987, 517 N.Y.S.2d 709, 510 N.E.2d 793, 794 (1987) (holding that when lot purchaser has knowledge that homeowners association provides facilities and services to community residents, purchase creates an implied-in-fact contract to pay a proportionate share of those facilities and services); Perry v. Bridgetown Cmty. Ass'n, Inc., 486 So.2d 1230, 1234 (Miss.1986) ("A landowner who willfully purchases property subject to control of the association and derives benefits from membership in the association implies his consent to be charged assessments and dues common to all other members."). But see Popponesset Beach Ass'n, Inc. v. Marchillo, 39 Mass.App.Ct. 586, 658 N.E.2d 983, 987-88 (1996) (holding that where lot owner had no notice in his chain of title of assessments and had not used the common areas, there existed no implied-in-fact contract to pay past and future assessments).

Reflecting this considerable body of law, the newest version of the Restatement of Property (Servitudes) provides that "a common-interest community has the power to raise the funds reasonably necessary to carry out its functions by levying assessments against the individually owned property in the community...." Restatement (Third) of Property: Servitudes § 6.5(1)(a) (2000). In addition, as explained in a comment to that section, the power to levy assessments "will be implied if not expressly granted by the declaration or by statute." Id. at § 6.5 emt. b; see also Wayne S8. Hyatt, Condominium and Homeowner Association Practice: Community Association Law 36 (1981) ("The assessment is not equivalent to membership dues or some other discretionary charge.... As long as legitimate expenses are incurred, the individual member must bear his or her share.").

We find the Restatement and case law from other states persuasive in analyzing the issue before us today. In addition, these authorities are in harmony with the legislative purpose motivating the enactment of CCIOA. See, eg., § 38-83.3-102(1)(b), 10 C.R.S. (2002) ("That the continuation of the economic prosperity of Colorado is dependent upon the strengthening of homeowner associations ... through enhancing the financial stability of associations by increasing the association's powers to collect delinquent assessments"); § 38-38.3-102(1)(d) ('That it is the policy of this state to promote effective and efficient property management through defined operational requirements that preserve flexibility for such homeowner associations").

Respondent, however, argues that the implied power to mandate assessments can only be imputed to "common interest communities," which both CCIOA and the Restatement define as residential communities in which there exists a mandatory obligation or servitude imposed on individual owners to pay for common elements of the community. Respondent therefore contends that because the original covenants did not impose such a servitude, Evergreen Highlands is not a common interest community, and accordingly cannot have the implied power to levy assessments against its members pursuant to these authorities.

Respondent's argument, however, relies on the assumption that the servitude or obligation to pay which would have defined Evergreen Highlands as a common interest community was required to have been made express in the covenants or in his deed. This assumption is incorrect. CCIOA provides only that the obligation must arise from the "declarations," which are defined as "any recorded instruments however denominated, that create a common interest community, including any amendments to those instruments and also including, but not limited to, plats and maps." § 88-33.3-108(18), 10 C.R.S. (2002); see also Restatement (Third) of Property: - Servitudes § 6.2(5)(2000) (" 'Declaration' means the recorded doeument or documents containing the servitudes that create and govern the common-interest community.").

The declarations in effect for Evergreen Highlands in 1986 incorporated all documents recorded up to that date, and included not only: (1) the covenants, but also; (2) the 1972 plat, which noted that the park area would be conveyed to the homeowners association; (8) the 1973 Articles of Incorporation for the Association stating that the Association's purposes were to "own, acquire, build, operate, and maintain" the common area and facilities, to pay taxes on same, and to "determine annual membership or use fees"; and (4) the 1976 deed whereby the developer quit-claimed his ownership in the park area to the Association.

At the time Respondent purchased his lot in 1986, the Evergreen Highlands' declarations made clear that a homeowners association existed, it owned and maintained the park area, and it had the power to impose annual membership or use fees on lot owners. These declarations were sufficient to create a common interest community by implication. As explained by the Restatement:

An implied obligation may ... be found where the declaration expressly creates an association for the purpose of managing common property or enforcing use restrictions and design controls, but fails to include a mechanism for providing the funds necessary to carry out its functions. When such an implied obligation is established, the lots are a common-interest community within the meaning of this Chapter.

Restatement (Third) of Property: Servitudes § 6.2 emt. a (2000); see also id. at illus. 2 (citing an example virtually identical to that of Evergreen Highlands and finding it a common interest community by judicial decree).

We accordingly adopt the position taken by the Restatement and many other states, and hold that the declarations for Evergreen Highlands were sufficient to create a common interest community by implication. The Association therefore has the implicit power to levy assessments against lot owners for the purpose of maintaining the common area of the subdivision. Respondent, as a lot owner, has an implied duty to pay his proportionate share of the cost of maintaining and operating the common area. We therefore remand the case to the court of appeals with orders to return it to the trial court to caleu-late Petitioner's damages in a manner consistent with this opinion.

IV. CONCLUSION

We hold that the 1995 amendment to the Evergreen Highlands restrictive covenants was valid and binding because its terms were within the seope of the modification clause of the original covenants, and it was duly enacted by the requisite majority of property owners. We reject the court of appeals' conclusion that the language of the modification clause allowing a majority of the property owners to "change or modify" a covenant does not provide for the addition of a new covenant, but only for the modification of an existing covenant. We therefore reverse the court of appeals, and hold that Respondent is bound by the terms of the 1995 amendment to the Evergreen Highlands covenants.

We also hold that the declarations for Evergreen Highlands in effect when Respondent purchased his property in 1986 were sufficient to create a common interest community by implication with the concomitant power to impose assessments or dues against individual lot owners. We therefore remand the case to the court of appeals with orders to return it to the trial court for calculation of Petitioner's damages in a manner consistent with this opinion.

Justice KOURLIS and Justice HOBBS do not participate.

Justice COATS, concurring only in the judgment of the court and Part III. A. of the majority opinion.

Justice COATS,

concurring only in the judgment of the court and Part III. A. of the majority opinion.

I agree with the majority's determination that the Evergreen Highlands covenants permitted the adoption of the 1995 amendment by 75 percent of the lot owners and that the trial court was justified in finding the amendment binding on all lot owners, whether they voted for it or not. Because the amendment is an express covenant providing for the imposition of mandatory assessments, I would not address the hypothetical question whether the Association would have the implied power to collect assessments in the absence of such an express provision. I would especially not, under these cireumstances, legislate a new category of common-interest community and impute powers to that entity, as I believe the majority does.

Whether or not it was adequately preserved for appeal, the Association's alternate argument concerning implied powers was addressed by neither the district nor the appellate court below. In light of this court's finding of a valid, express covenant providing for the imposition of mandatory assessments, resolution of the implied powers question is not only unnecessary but actually premised upon a condition held by the court not to exist in this case. Perhaps most importantly, however, in its attempt to formulate and announce a new rule of general applicability (unanchored by its effect on the outcome of any existing case or controversy), the majority needlessly construes Colorado's Common Interest Ownership Act and the American Law Institute's restatement of the law concerning common-interest communities, and does so in a way that, in my opinion, is at least questionable.

Unsurprisingly, other jurisdictions have found on occasion, in the particular cireum-stances of individual cases, an implied power of a community to levy mandatory assessments on individual lot owners, flowing from an implied-in-fact contract. See maj. op. at 7-8. Without restricting those fact-specific holdings in any way, the Restatement suggests the more general concept of a "common-interest community," defined by certain common characteristics, from which its powers, including the implied power to levy assessments, necessarily flow. While its definition is perhaps broader than that of Colorado's Common Interest Ownership Act, even the Restatement would categorize as a "common-interest community" only a development or neighborhood in which individually owned lots are burdened by a servitude that imposes an obligation to support common property or pay assessments to an association with the responsibility of maintaining it or enforcing servitudes on the property in the development. See Restatement (Third) of Property: Servitudes § 6.2 (2000).

The Restatement specifically emphasizes that "[it does not purport to authorize the imposition of assessments by property-owner groups that are not common-interest communities." Id. at $ 6.5 emt. &a. Although it makes no attempt to describe all of the circumstances under which a qualifying servitude might be found, the Restatement imputes the power of assessment as a general matter only to communities in which membership in the association is mandatory or the individual lots are so burdened. Rather than suggesting that all residential developments or neighborhood organizations necessarily have the power of assessment, the Restatement merely finds that a power of assessment is implied from the need to enforce existing servitudes on individual lots.

In relying on the Restatement as authority for its broad notion of a "common interest community by implication," the majority, in my view, needlessly dilutes the necessary characteristics of a common-interest community from which its inherent powers derive and injects a kind of circularity into its reasoning. - If the declarations in this case actually "made clear that a homeowners association ... had the power to impose annual membership or use fees on lot owners," maj. op. at 8-9, without their voluntary participation, injecting the general concept of a common-interest community would seem to be superfluous. The power to levy assessments on lot owners would already be express, or at least be clearly implied by the particular provisions of the declarations. And to the extent that the majority's expansive definition of "declarations," as including the Association's Articles of Incorporation, is dependent upon their character as "governing documents" of a common-interest community, the servitude necessary to create the common-interest community in the first place certainly could not be inferred from the articles themselves.

Even if I considered guidance from this court to be both important and appropriate in some situations, I would nevertheless be reluctant to give it were I to find no greater clarity or consensus concerning the applicable legal principles than I find here. I fear that the majority's discussion of implied powers of assessment is likely to raise more questions than it resolves. Because I consider this dictum to be both gratuitous and highly questionable, I would omit it altogether. I therefore concur only in the judgment of the court and Part III. A. of the majority opinion.

      . The Association also counterclaimed that West was unjustly enriched; this issue was not appealed to us.

      . We granted certiorari on the following issues:
      1. Where a planned community's covenants empower a certain percentage of the owners to "change or modify any one or more" of the covenants, may the specified percentage of owners adopt a covenant requiring all owners to pay assessments to the homeowner association?
      2. Does a planned community's homeowner association have the implied power to collect assessments from all owners to defray the cost of maintaining common areas?

      . Amicus Curiae Community Associations Institute, a national nonprofit research and education organization, estimates that approximately 2,000 Colorado communities, housing an estimated 450,000 people, fall into the latter category.

      . Zito was issued by a different division of the Illinois Appellate Court with only a "but see" reference to the earlier ruling in Lakeland, to wit:
      "The trial court, therefore, erred when it failed to enforce the 1987 amendment to the restrictive covenants. But see Lakeland Property Owners Ass'n v. Larson [citation omitted]."
      Zito, 167 Ill.Dec. 433, 587 N.E.2d at 1050.

      . By way of comparison, the amendment approved in Zito provided for lot assessments at $100 per year. 167 Ill.Dec. 433, 587 N.E.2d at 1049. The amendment approved in Sunday Canyon imposed an open-ended annual assessment for the maintenance and improvement of the roads, water system, and common areas; for providing architectural control over lot improvements; and for promoting "the health, welfare, and safety of the residents." 978 S.W.2d at 656. Finally, the amendment approved in Windemere created a homeowners association that was responsible for maintenance, repair, reconstruction, and snow removal on the common subdivision road, and allowed the association to assess lot owners for the paving of the road. 990 P.2d at 771.

      . CCIOA is located at sections 38-33.3-101 through 38-33.3-304, 10 C.R.S. (2002).

      . We note that in contrast to Marchillo, testimony in this case showed that West had, in fact, availed himself of the benefits of the park area.

      . CCIOA defines a "common interest community" as:
      real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. ...
      § 38-33.3-103(8), 10 C.R.S. (2002). The Restatement defines a "common interest community" as:
      a real estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by nonuse or withdrawal
      (a) to pay for the use of, or contribute to the maintenance of, property held or enjoyed in common by the individual owners, or
      (b) to pay dues or assessments to an association that provides services or facilities to the common property or to the individually owned property, or that enforces other servi-tudes burdening the property in the development or neighborhood.
      Restatement (Third) of Property: Servitudes § 6.2(1)(a) and (b) (2000).

      . "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. § 38-33.3-103(8), 10 C.R.S. (2002).


source: Caselaw Access Project

author: Justice HOBBS

license: Public Domain

text:
    Scott Richard CAMPBELL, Petitioner, v. The PEOPLE of the State of Colorado, Respondents.
    No. 02SC454.
    Supreme Court of Colorado, En Banc.
    June 23, 2003.
    Rehearing Denied July 21, 2003.

      Thomas K. Carberry, Denver, Colorado, Attorney for Petitioner.
    Ken Salazar, Attorney General, Monica Marquez, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.
   Justice HOBBS

delivered the Opinion of the Court.

We granted certiorari in this case to review the court of appeals decision in People v. Campbell, 58 P.3d 1080 (Colo.App.2002). The trial court rejected Campbell's argument that section 18-18-405(1)(a), 6 C.R.S. (2002), prohibiting possession of a controlled substance, violates equal protection because it prescribes a harsher sentence than section 18-18-404(1), 6 C.R.S. (2002), prohibiting use of a controlled substance. Campbell pleaded guilty to possession of cocaine.

The court of appeals upheld the possession conviction against Campbell's equal protection challenge, on the assumption that his guilty plea was to possession of a different amount of cocaine than he actually utilized. We uphold the judgment of conviction and sentence for a different reason.

The challenge is based on an alleged violation of the equal protection provision of the Colorado Constitution. Campbell argues that the use and possession statutes proscribe identical conduct. They do not. Section 18-18-405(1)(a), the possession statute, and section 18-18-404(1), the use statute, do not contain identical elements. In Colorado, a person is denied equal protection when two eriminal statutes proscribe different penalties for identical conduct, unless there are reasonable differences or distinctions between the proscribed behaviors. People v. Stewart, 55 P.3d 107, 114 (Colo.2002). Statutory classifications of crimes must be based on differences that are both real in fact and reasonably related to the general purposes of criminal legislation. Id. Further, the General Assembly may establish more severe penalties for acts that it believes have graver consequences, even if the differences are only a matter of degree. Id. at 114-15.

I.

During an investigation of two empty cars parked in a no parking area, police stopped defendant Campbell to determine if he owned one of the vehicles. Campbell informed the officers that he owned one of the cars and led the officers to an area where he and his three companions had been sitting. The officers found a box containing cocaine, two vials of liquid and hypodermic needles. During a pat down of Campbell, the officers also discovered marijuana and a marijuana pipe. The officers advised Campbell of his rights, and Campbell told them he had been using cocaine. A search of Campbell's person conducted at the police station revealed a switchblade and a hypodermic syringe. Campbell was charged with possession of an illegal weapon, illegal use of a controlled substance, simple possession of a controlled substance, and possession of drug paraphernalia. The People later amended the information to include charges of distribution of a controlled substance and possession of a controlled substance.

Campbell filed various pretrial motions invoking an equal protection challenge to seetion 18-18-405(1)(a), the possession statute. Before the trial court ruled on these motions, Campbell pleaded guilty to possession of a controlled substance; the prosecution dismissed the remaining charges. The plea agreement reserved these questions: (1) whether Campbell would be sentenced for a class four or five felony for his guilty plea to possession, and (2) whether a class four felony sentence under section 18-18-405(1)(a) would violate the equal protection guarantee of the Colorado Constitution. Both sides reserved their appeal rights.

The trial court rejected the equal protection argument and sentenced Campbell for a class four felony to ten years in prison based on aggravating cireumstances that included prior use, unsuccessful rehabilitation attempts, and the overdose death of two of Campbell's girlfriends in his presence.

The court of appeals upheld the trial court's punishment of Campbell for possession, on the assumption that the punishment did not offend equal protection because the drugs he possessed were separate and distinct from the drugs he consumed. We determine that possession and use of a controlled substance are not identical conduct for equal protection purposes, even when the drugs possessed and used are the same.

IL

We hold that section 18-18-405(1)(a), the possession statute, and section 18-18-404(1), the use statute, do not contain identical elements for purposes of an equal protection analysis. The General Assembly's choice to classify possession as a graver offense than use is reasonably related to the general purposes of the criminal legislation.

A.

Equal Protection Under the Colorado Constitution

A statute is presumed to be constitutional and Campbell has the burden to prove the statute's unconstitutionality beyond a reasonable doubt. Stewart, 55 P.3d at 115.

The Due Process Clause of the Colorado Constitution guarantees equal protection of the laws. Colo. Const., art. II, see. 25. Unequal treatment of similarly situated persons is prohibited. People v. Cagle, 751 P.2d 614, 619 (Colo.1988). Under Colorado's equal protection guarantee, a person is denied equal protection when two criminal statutes proseribe different penalties for identical conduct and a person is convicted and sentenced under the statute with the harsher penalty, unless there are reasonable differences between the proscribed behavior and the differences are both real in fact and reasonably related to the general purposes of the legislation. Stewart, 55 P.3d at 114. A single act may violate more than one criminal statute without violating the equal protection guarantee. Id.; Cagle, 751 P.2d at 619.

Our equal protection jurisprudence under Colorado law prohibits the General Assembly from providing the prosecution with complete unrestrained discretion in the charging decision. The General Assembly is restrained from allowing the prosecutor to choose between provisions that punish identical conduct by different penalties. Colorado jurisprudence holds that equal protection is satisfied when the two statutes at issue pro-seribe different conduct.

B.

Identical Versus Different Conduct

When criminal statutes prescribe different penalties for identical conduct, a person cannot be sentenced to the harsher punishment - without violating Colorado's equal protection guarantee. See Stewart, 55 P.3d at 114 (collecting and citing Colorado cases on point). In determining whether two statutes proscribe identical conduct, we compare their statutory elements. Id. at 115.

Possession of a controlled substance under section 18-18-405(1)(a), and use of a controlled substance under section 18-18-404(1), do not contain identical statutory elements. Section 18-18-405(1)(a), a potential class four felony, provides, "it is unlawful for any person knowingly to ... possess ... a controlled substance." As to use, section 18-18-404(1), provides in relevant part:

any person who uses any controlled substance, except when it is dispensed by or under the direction of a person licensed or authorized by law to prescribe, administer, or dispense such controlled substance for bona fide medical needs, commits:
(a) a class five felony ...

One can possess a controlled substance without using it; this distinction is real in fact and is reasonably related to the purposes of the criminal legislation.

We have consistently held that possession and use of a controlled substance are not identical conduct for equal protection purposes. Although possession can occur without use, use is preceded by possession. Possession ends when the drug is consumed. Cagle, 751 P.2d at 620.

In People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (Colo.1969), the defendant argued that because one must, out of necessity, possess marijuana in order to use it, there is no rational basis for the distinction between the treatment of possession as a felony and use as a misdemeanor. Id. at 288. We determined, however, that possession and use were two distinct offenses because, "Under the Drug Act, the State must prove that the accused had actual or constructive possession of a narcotic drug. And under the Use Act, it is sufficient to prove that the accused used or was under the influence of a narcotic." Id. at 235.

In Cagle, we again determined that possession and use are not identical conduct, and that possession occurs prior to use.

Possession of a controlled substance does not necessarily involve use. If a person is holding a plastic bag containing a psilocy-bin mushroom, he possesses a schedule I controlled substance. He does not use it until he ingests the mushroom. To use the mushroom, he must first possess it. Once he uses the mushroom, he no longer possesses it. Use and possession are therefore not identical acts.

Cagle, 751 P.2d at 620 (emphasis added). The General Assembly specifically declared that "strict control of controlled substances in this state is necessary for the immediate and future preservation of the public peace, health, and safety." Id.; § 1818-401. The legislature demarcated the difference between possession and use with the temporal concept that consumption ends possession. Cagle, 751 P.2d at 620 (reasoning that a person who uses a controlled substance primarily threatens only his or her own health and well-being, while one who possesses a controlled substance poses a greater threat to the public). The principle is that use ends the capability of the defendant to place the controlled substance in the hands of another.

In People v. District Court, 964 P.2d 498 (Colo.1998), we again found that possession and use of a controlled substance are not identical acts because possession may occur without use.

An examination of the two statutes indicates that proof of the elements of the unlawful possession offense does not establish the elements of the unlawful use offense. That is, one may be convicted of unlawful possession even though one has not used the controlled substance.

Id. at 501. In the same opinion, we also proceeded to state that the converse is also true.

Conversely, proof of the elements of the unlawful use offense does not establish the elements of the unlawful possession offense. In other words, the offenses do not comply with the statutory elements test where each offense necessarily requires proof of at least one additional fact which the other does not.

Id. We later corrected this statement in People v. Villapando, 984 P.2d 51 (Colo.1999). In Villepando, a probable cause case, we determined that use of a controlled substance necessarily requires possession of the substance. "While it is possible to possess a controlled substance without using it, we can envision no scenario in which an individual could voluntarily use a controlled substance without first possessing it." Id. at 54. Regardless, the fact that use of a controlled substance necessarily requires possession does not make the conduct identical for equal protection purposes.

We affirm our determinations in McKenzie, Cagle, and District Court on the point that possession of a controlled substance does not require use of the substance; nor, is possession of a controlled substance equivalent to use of a controlled substance. The elements of the crimes are different. The conduct is not identical; rather, possession precedes use.

The General Assembly's disparate classifications and punishments of possession and use of a controlled substance are based on differences that are real in fact and reasonably related to the general purposes of the legislation. The General Assembly may impose greater penalties for acts that it perceives to have graver social consequences, even if the difference is only a matter of degree. Stewart, 55 P.3d at 115. Punishment of possession more harshly than use is justified by the fact that, as long as one is in possession of a controlled substance, he or she has the capability to distribute or dispense it, whether or not the defendant actually does so or has the intent to do so. See Cagle, 751 P.2d at 620. This distinction is not arbitrary.

Campbell's sentence under section 18-18-405(1)(a), the possession statute, does not offend equal protection. Section 18-18-405(1)(a), prohibiting possession of a controlled substance, and section 18-18-404, prohibiting use of a controlled substance, do not describe or punish identical conduct. Furthermore, possession and use of a controlled substance are not identical conduct for equal protection purposes, even when the drugs possessed and used are the same.

THL.

Accordingly, we affirm the judgment of the court of appeals upholding Campbell's convietion and sentence.

      . We granted certiorari on the following question:
      Whether the court of appeals erred in holding that the imposition of a sentence for "possession" of cocaine that was greater than that permitted for "use" of cocaine did not violate the Colorado Constitution's guarantee of equal protection.

      . See § 18-12-102, 6 C.R.S. (2002)(possession of an illegal weapon); § 18-18-404(1), 6 C.R.S. (2002)(illegal use of a controlled substance); § 18-18-406(1), 6 C.R.S. (2002) (simple possession of a controlled substance); § 18-18-428(1), 6 C.R.S. (2002) (possession of drug paraphernalia).

      . See § 18-18-405(1)(a), 6 C.R.S. (2002) (distribution and possession of a controlled substance).


author: Justice MARTINEZ

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Miguel MOJICA-SIMENTAL, Respondent.
    No. 02SC44.
    Supreme Court of Colorado, En Banc.
    June 23, 2003.
    As Modified on Denial of Rehearing July 21, 2003.

      GF. Sandstrom, District Attorney, M. Katherine Howard, Deputy District Attorney, Pueblo, Colorado, Attorneys for Petitioner.
    David S. Kaplan, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.
   Justice MARTINEZ

delivered the Opinion of the Court.

I. Introduction

We granted certiorari in this case to consider two issues: first, whether section 16-8-309(5), 6 C.R.S. (2002), which allows eriminal-istics laboratory reports to be admitted without the testimony of the lab technician, applies in a driving under the influence (DUI) case; and second, whether section 16-8-309(5) is constitutional. We determine that section 16-3-309(5) does apply in a DUI case and is constitutional on its face.

At the commencement of the jury trial, the county court ruled that blood test results would not be admitted without the testimony of a lab technician under section 16-8-809(5), reasoning that to allow the results would effectively shift the burden of proof to the defense. Further, the county court held that the statute was not applicable in a trial for a DUI charge. On appeal, the district court ruled that the statute applies to all eriminal cases where laboratory tests are required. However, the district court further concluded that the statute is unconstitutional because it allows defendants to waive constitutional rights passively, without an affirmative, intelligent, and knowing waiver, thus depriving the defendant of his right to confrontation. The district court stated that, "[the legislature cannot make those rights contingent on affirmative action by the defendant."

II. Analysis

As we would not reach the question of the constitutionality of section 16-3-309(5) in this case unless it applies to the trial of DUI cases, we first address the statute's applicability. After determining that section 16-8-309(5) applies at a DUI trial, we next discuss the constitutionality of section 16-8-809(5). In our constitutional analysis, we begin by reviewing the district court's conclusion that section 16-8-309(5) is unconstitutional on its face. This inquiry is followed by a consideration of the defendant's argument that seetion 16-3-809(5) is unconstitutional as applied.

We hold that, on its face, section 16-8-309(5)'s provision, which requires a defendant to affirmatively request a lab technician's presence at trial, is an acceptable precondition to a defendant's exercise of his right to confrontation and is therefore not unconstitutional. A defendant's right to confrontation is not denied as he can preserve that right, pursuant to section 16-38-3809, with minimal effort, Finally, we decide that the defendant's as applied challenge is not actually at issue because the statute has not yet been applied in this case.

A. Section 16-3-309(5) Is Applicable To A Driving Under The Influence Trial

Before we address any constitutional challenges to section 16-8-809(5), we must decide that it applies in the case before us, namely a DUI case. The trial court ruled that section 16-8-809(5) was inapplicable in a DUI case. The appellate court reversed that holding, stating that under the language of section 16-8-309(5), the section is applicable to all eriminal cases where laboratory tests are required. We now affirm the district court's decision and hold that section 16-3-309(5) applies in a DUI trial.

In order to determine whether seetion 16-3-809(5) is applicable in a DUI trial, we must examine the language of section 16-83-309(5) and of the DUI statute, section 42-4-1801, 11 C.R.S. (2002). When interpreting statutes, our primary goal is to give effect to the intent of the legislature. People v. Smith, 971 P.2d 1056, 1058 (Colo.1999). We first look to the plain language; if the language is clear, our analysis need go no further. Id. When two statutes conflict, "we will favor a construction that avoids potential conflict between the relevant provisions." Id.

The two statutes in this case do not conflict. Section 424-1801 describes the procedures for administering tests to be used in DUI cases. Section 16-3-809(5) merely allows the results of such tests to be admitted "in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person." § 16-8-309(5). Furthermore, section 42-4-1301 states that failure to comply with the regulations for administering the tests does not bar their admission, but goes only to the weight given to the test results. § 42-4-1301. Thus, section 42-4-1301 does not conflict with section 16-8-809(5)'s manner of admitting test results.

Section 42-4-18301 also guarantees a defendant the right to challenge the results of such tests. Again, however, section 16-3-309(5) does not conflict with section 42-4-1301's provisions as section 16-3-309(5) does not in any way proscribe such challenges.

While we favor a more specific provision over a general one when there is conflict between statutory provisions, in the absence of such a conflict, we give effect to both statutes. Smith, 971 P.2d at 1058. The statutes in this case do not conflict. Consequently, we hold that section 16-8-309(5) is applicable to the trial of a DUI case.

B. Section 16-3-309(5) is Facially Constitutional

Statutes are presumed to be constitutional. People v. Hickman, 988 P.2d 628, 634 (Colo.1999). A party challenging a statute's constitutionality has the burden of showing that the statute is unconstitutional beyond a reasonable doubt. Id. If there is more than one possible interpretation of the statute, we must adopt the constitutional construction. People v. McBurney, 750 P.2d 916, 920 (Colo.1988). We review the district court's determination that the statute is unconstitutional de novo. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440 (Colo.2000).

Section 16-3-809(5) allows for any report or finding of a eriminalisties laboratory to be received into evidence with the same force as if the laboratory technician had testified in person. § 16-3-3809. However, any party may request that the technician testify in person, "by notifying the witness and other party at least ten days before the date of such eriminal trial." Id.

On its face, section 16-8-309(5) is constitutional. The right to confrontation is a fundamental right, but it is not a right without limit. Section 16-8-309(5) merely creates a precondition, that the defendant must request a technician's presence at least ten days before trial, which must be met to ensure such a witness's presence at trial. Thus, with minimal effort, a defendant can preserve the right to confrontation. Requiring a defendant to satisfy section 16-3-309(5)'s precondition does not shift the burden of proof away from the prosecution. We have required defendants to satisfy such conditions before. It is the prosecution that still must prove the elements of each charge beyond a reasonable doubt, whether it does so by subpoenaing the witness and presenting her at trial, or by simply introducing the lab report.

In sum, this statute seeks only to streamline the trial process by admitting a report without the testimony of the technician in cases where the parties do not feel that the technician's testimony would be useful. However, when a defendant wants to confront and question that witness, all he must do is notify the prosecution, at least ten days before trial, that he would like the technician present; if he does so, his simple request will prevent the admission of the lab report without the foundational testimony of the appropriate lab technician.

1. The right to confrontation is not without limit

The United States Constitution states that in all criminal cases, the accused shall have the right "to be confronted with the witnesses against him." U.S. Const. amend. VIL, XIV. In Colorado, the right is even more explicit: "the accused shall have the right ... to meet the witnesses against him face to face." Colo. Const. art. II, § 16. Despite the strong language of the federal and state clauses, the Confrontation Clause has not been interpreted literally to require that any statements presented that were not made by a declarant at trial be excluded. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The United States Supreme Court has stated that if the clause were so interpreted, it "would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." Id.

Further, the United States Supreme Court has noted that competing interests "may warrant dispensing with confrontation at trial." Id. at 64, 100 S.Ct. 2581. We have reiterated that sentiment, stating, "[clompet-ing interests in effective law enforcement and in the development and precise formulation of rules of evidence are valid considerations to balance against the confrontation right in appropriate cases." People v. Dement, 661 P.2d 675, 680 (Colo.1983) (citing Roberts, 448 U.S. at 63, 100 S.Ct. 2581). Thus, a defendant's right to confront the witnesses against him is not without limit, and "must occasionally give way to considerations of public policy and the necessities of the case." Mattox v. United States, 156 U.S. 237, 259-60, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

Section 16-3-809(5) represents an attempt by the legislature to preserve a defendant's right to confrontation, while still allowing lab reports to come in without a technician to testify to their results, where the technician's presence is not desired by either party. As the scientific evidence used in law enforcement and prosecutions grows, lab analysts are faced with a growing backlog of work. Taking them out of the lab to testify to reports that are often not contested is not an efficient use of resources. However, where a defendant wishes to contest a lab test, the analyst's presence is crucial to secure the defendant's right to confront the witnesses against him. Section 16-8-809(5) appropriately balances these considerations by allowing reports to come in without a lab technician to testify as to their contents unless the defendant wants that technician there. As the defendant can ensure the witness's presence with minimal effort, the statute adequately protects the defendant's right to confrontation.

2. Requiring a defendant to request a witness's presence is an acceptable precondition to the exercise of the right of confrontation

While section 16-8-809(5) places a small burden on the defendant if he wishes to have a lab technician testify, it does not shift the burden of proof to the defendant. Section 16-3-809(5) requires the defendant to notify the prosecution and the witness if the defense would like the lab technician to testify at trial However, this burden is minimal and, as discussed below, is no more than we have required of defendants in other cireum-stances. Thus, section 16-8-309(5) does not impermissibly shift the burden of proof to the defendant.

"Preconditions to the exercise of a right are not unknown to the criminal law and, when reasonable in nature do not constitute an abridgement of that right." People v. Hampton, 696 P.2d 765, 774 (Colo.1985). While the prosecution bears the burden of proving the case against the defendant, In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), a defendant still must avail himself of his opportunity to cross-examine by being present at trial and standing up and questioning the witnesses. Section 16-8-309(5) infringes on a defendant's right of confrontation no more than those minimal requirements. Under section 16-8-309(5), a defendant must inform the prosecutor that he would like the lab analyst present at trial ten days before the trial in order to avail himself of the right of cross-examination.

We have upheld as constitutional many conditions which require defendants to take some step in order to preserve their rights. For example, in Hampton, we held that a rule of criminal procedure which requires the defendant to serve notice of an alibi statement upon the prosecutor is constitutional. Hampton, 696 P.2d at 774. The rule requires that the statement include where the defendant claims to have been, and the names and addresses of all of the witnesses he will call in support of his alibi. Id. at 772. The defendant was required to provide this evidence within a reasonable time after the prosecuting attorney gives the defendant a statement specifying where and when the prosecutor contends the defendant committed the offense charged. Id. Thus, while the defendant was required to shoulder some burden in order to exercise his constitutional right to present a defense and to call witnesses, we held that the burden did not violate that right. Id. at 774.

Similarly, we have held that the requirements imposed on a defendant under the rape shield statute were not violative of a defendant's constitutional right of confrontation. People v. McKenna, 196 Colo. 367, 373, 585 P.2d 275, 279 (1978). Under that statute, a defendant is required to make a formal offer of proof, and an in camera hearing may be held, to determine if the evidence regarding the victim's prior sexual history is relevant. Id. (citing § 18-8-407, C.R.S.1978 (1977 Supp.)). The defendant in McKenna argued that this requirement violated his right to confrontation because it denied him the right to confront his accuser regarding issues which he felt were relevant to his defense. Id. We held that this requirement was constitutional and that, "rather than completely denying the defendant's rights in order to protect the victim's privacy interest, the statute strikes a balance by conditioning admission of evidence ... on the defendant's preliminary showing that it is relevant." Id.

We adopt the same reasoning here in holding that section 16-3-809(5) balances the rights of the defendant with the public interest in efficient use of the state lab technicians' time. Thus, we reiterate that while the defendant's right to confrontation is fundamental, it is not without limit. Burdens may be placed on the defendant to exercise that right and, "when reasonable in nature, [the burdens] do not constitute an abridgement of that right." Hampton, 696 P.2d at 774. The burden placed on the defendant here is minimal. Furthermore, his right to confront is not abridged; a defendant is not denied the right to confrontation altogether. Rather, the statute merely requires the defendant to make an affirmative request to ensure that right. Again, however, we note that while this burden on its face is constitutional, there may be cireumstances where it is, in fact, an unreasonable burden and effectively abridges a defendant's right to confrontation. Thus, the trial court must be cautious and consider all the relevant cireum-stances before admitting a crime lab report, over the objection of a defendant, without the necessary foundational testimony as permitted by section 16-8-809(5).

C. The "As Applied" Challenge

Having found section 16-8-309(5) constitutional on its face, we next consider the argument that section 16-8-809(5) is unconstitutional as applied to this case. Mofica-Simental asserts no independent argument as to why section 16-3-309(5) is unconstitutional as applied; rather he couples the argument that it is unconstitutional on its face with the claim that it is also unconstitutional as applied.

While we decide today that section 16-3-309(5) does not violate a defendant's right to confrontation on its face, we also recognize that a trial court could apply this statute in such a manner as to present constitutional difficulties. A defendant's right to confrontation is a fundamental constitutional right. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 LEd.2d 923 (1965). Thus, in order to waive that right, a defendant's waiver must be "voluntary, knowing and intentional." People v. Curtis, 681 P.2d 504, 514 (Colo.1984). If a defendant does not have actual notice of the requirements of the statute, or mistakenly fails to notify the prosecution to have the technician present to testify, there is a significant possibility that a defendant's failure to act may not constitute a voluntary waiver of his fundamental right to confrontation.

We have identified the factors a trial court should consider before excluding defense witnesses as a sanction for failure to provide notice of an alibi defense. Hampton, 696 P.2d at 778. In particular, the factors we identified include: the reason for and the degree of culpability associated with the failure to timely respond to the prosecution's specification of time and place; whether and to what extent the nondisclosure prejudiced the prosecution's opportunity to effectively prepare for trial; whether events occurring subsequent to the defendant's noncompliance mitigate the prejudice to the prosecution; and, whether there is a reasonable and less drastic alternative to the preclusion of alibi evidence. Id. at 778. We consider this approach useful when considering whether to admit a lab report without an opportunity to confront the appropriate witness.

Thus, before admitting a lab report pursuant to section 16-3-309(5), some factors the trial court might consider include: whether an attorney or a pro se litigant actually knew that he was required to notify the opposing party of his desire to have the witness present; the reasons why notice was late or was not given at all; the difficulty of acquiring the presence of the witness; the significance to the case of the report and of the testimony that would be elicited from the technician; and any other pertinent cireumstances.

In practice, section 16-8-809(5) might be best utilized if the proponent of the lab report notifies the opposing party that it intends to introduce the lab report without a foundational lab technician witness, unless advised ten days before trial that the witness' presence is desired, and the parties discuss the matter, at some pre-trial opportunity, to ensure that all parties are in agreement as to whether the witness will be present.

Although we determine that section 16-3-309(5) does not violate a defendant's right to confrontation on its face, we cannot reach the question of the constitutionality of the statute as applied. On appeal to this court, Mojica, Simental argues that section 16-8-309(5) is unconstitutional both facially and as applied to his case. However, in order to argue the constitutionality of a statute as applied, the statute must have been unconstitutional as applied to the complainant. United States v. Raines, 362 U.S. 17, 21, 80 S.Ot. 519, 4 L.Ed.2d 524 (1960). This statute has not yet been applied to Mojica-Simental at all; the lab report in this case was not admitted without an opportunity for the defendant to confront and eross-examine the lab technician, and thus, Mojica-Simental was never deprived of his constitutional right to confrontation. Nor will Mojica-Simental be prevented from exercising his right to confrontation when this case is remanded, as it will only be necessary for him to notify the prosecution ten days before the rescheduled trial if he wants the lab technician to testify in person. Thus, this statute has not been applied to deprive Mojica-Simental of any constitutional right, nor is it likely to be so applied to him in the future.

III. Conclusion

We decide today that section 16-8-809(5) does apply in a DUI case. Additionally, we hold that the requirement that a defendant must request a lab technician's presence at trial is an acceptable precondition to the exercise of a defendant's right to confrontation. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

      . Section 16-3-309(5) states in full:
      Any report or copy thereof or the findings of the ,. griminalistics laboratory shall be received in evi- & Agence in any court, preliminary hearing, or }?grand jury proceeding in the same manner and * with the same force and effect as if the employee : or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person. Any party may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury to the court, by notifying the witness and other party at least ten. days before the date of such criminal trial.


author: Justice COATS

text:
    Concerning the Application for Water Rights of Groundwater Appropriators of the South Platte River Basin, Inc., in Sedgwick County, GROUNDWATER APPROPRIATORS OF the SOUTH PLATTE RIVER BASIN, INC., Applicant-Appellant/Cross-Appellee, v. The CITY OF BOULDER; Henrylyn Irrigation District; Lower South Platte Water Conservancy District; the Ferguson Family Trust, Objectors-Appellees, and Fort Morgan Reservoir and Irrigation Company and Jackson Lake Reservoir and Irrigation Company, Objectors-Appellees/Cross-Appellants, and The Colorado State Engineer and the Division Engineer of Water Division No. 1., Objectors/Cross-Appellees.
    No. 02SA249.
    Supreme Court of Colorado, En Banc.
    June 30, 2003.

      Hill & Robbins, P.C., David W. Robbins, Dennis M. Montgomery, Avi S. Rocklin, Denver, Colorado, Attorney for Applicant-Appellant/Cross-Appellee.
    Moses, Wittemyer, Harrison and Wood-ruff, P.C., Veronica A. Sperling, Gabriel D. Carter, Boulder, Colorado, Attorneys for the Objectors-Appellees, City of Boulder.
    Timothy R. Buchanan, P.C., Timothy R. Buchanan, Arvada, Colorado, Attorney for Objectors-Appellees/Cross-Appellants.
    Ken Salazar, Attorney General, Matthew Poznanovic, Denver, Colorado, Attorneys for Objectors/Cross-Appellees, Colorado State Engineer, and Division Engineer of Water Division # 1.
   Justice COATS

delivered the Opinion of the Court.

The Groundwater Appropriators of the South Platte River Basin, Inc. (GASP) appealed fromm the water court's order imposing attorney fees as a condition for granting GASP's motion to dismiss two of its applications for conditional water rights. Opposers Ft. Morgan Reservoir and Irrigation and Jackson Lake Reservoir and Irrigation Companies cross-appealed from the water court's refusal to consider their motion to enjoin out-of-priority pumping by GASP members, in which the City of Boulder had joined at trial. Because C.R.C.P. 41(a)(2) does not authorize the imposition of attorney fees as terms and conditions for the voluntary dismissal of applications for water rights with prejudice, the Water Court's order for attorney fees is reversed; and because the injunction sought by the irrigation companies and the City of Boulder is outside the statutorily prescribed seope of a proceeding for the determination of water rights and would conflict with the purposes of such a proceeding, the water court's denial of the motion made by the irrigation companies and the City of Boulder is affirmed.

I.

This dispute arises out of several applications for water rights made by the Groundwater Appropriators of the South Platte River Basin, Inc. (GASP). GASP, an organization of owners of more than 3000 wells, filed separate applications for conditional water storage rights in 1995, 1996, and 1998, which were consolidated for adjudication. Fort Morgan Reservoir and Irrigation Company, Jackson Lake Reservoir and Irrigation Company, City of Boulder, Henrylyn Irrigation District, Lower South Platte Water Conservancy District, The Ferguson Family Trust, The Colorado State Emgineer, and The Division Engineer of Water Division No. 1 each filed Statements of Opposition to one or more of the applications. After moving to consolidate the three cases, GASP filed a Motion for Partial Summary Judgment, seeking a declaration that it would not be required to identify well depletions to be augmented as a prerequisite to a decree for the water storage rights requested in the three consolidated cases.

Fort Morgan Reservoir and Irrigation Company and Jackson Lake Reservoir and Irrigation Company ("the irrigation companies") filed a joint eross-motion for summary judgment, which sought a denial of GASP's application or, in the alternative, a requirement that GASP identify potential depletions and submit augmentation plans. In addition, it sought a mandatory injunction on GASP members' out-of-priority pumping, which was permissible under a "temporary" substitute supply plan that was approved by the state engineer in 1972. Boulder joined in the motion in its entirety. The state and division engineers opposed the irrigation companies' cross-motion for a mandatory injunction and filed a brief to that effect.

The water court granted GASP's motion for partial summary judgment and denied the cross-motion submitted by the irrigation companies and Boulder, indicating that "[the legality of the GASP temporary substitute supply plan, as annually approved by the state engineer, is not properly at issue in these applications nor a proper subject of this motion."

Approximately one month before trial, GASP filed a motion to dismiss, with prejudice, the applications that it had filed in 1995 and 1996. The state and division engineers joined in the motion to dismiss. The irrigation companies and Boulder argued that the motion should be granted only if it included certain terms and conditions, including an order that GASP pay the attorney fees related to their opposition to the two applications at issue. The water court granted GASP's motion but ordered GASP to pay that portion of the irrigation companies' and Boulder's costs and attorney fees that was related to their opposition to the two sites after June 30, 1998. At the same time, the water court denied the request made by the irrigation companies and Boulder that it retain jurisdiction to determine the issues pertaining to the legality of the temporary substitute supply plan and their concomitant request for a mandatory injunction.

GASP appealed the water judge's award of attorney fees in favor of the irrigation companies and Boulder. The irrigation companies cross-appealed the water court's refusal to address the legality of the GASP temporary substitute supply plan as part of this case.

IL.

In its orders imposing attorney fees and denying GASP's motion to reconsider, the water court made clear that it considered itself to be exercising discretion afforded it by C.RCP. 4l(a)(2), to impose terms and conditions on a voluntary dismissal. It interpreted the rule to grant such discretion without regard to any finding of bad faith or unreasonableness, and without regard (at least in the case of an application for water rights) to the fact that the application was dismissed with, rather than without, prejudice. Noting that GASP was well within its rights to file on numerous projects, the court found simply that it should not be permitted to file several applications and, after determining the best alternative, dismiss the other applications "with prejudice," to avoid the imposition of attorney fees as part of the dismissal.

As this court has previously recognized, the Uniform Local Rules For All State Water Court Divisions indicate their intent that the Colorado Rules of Civil Procedure apply to water court practice and procedure, "lelxeept as expressly provided in these rules." Am. Water Dev., Inc. v. City of Alamosa, - 874 P2d 352, 381 (Colo.1994)(AWDI )(quoting introductory note preceding the rules). Similarly, the civil rules limit themselves from governing the "procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute." C.R.C.P. 8i(a). Although an application for a water right is clearly a special statutory proceeding, see § 37-92-3802, 10 CRS. (2002), to which the rules governing practice and procedure in water courts apply, this court has expressly rejected "the contention that C.R.C.P. 41(a)(2) does not apply to water rights adjudications." AWDI, 874 P.2d at 881 (finding no express conflict or contradiction in § 87-92-203(1)(b)'s relaxation of traditional standing requirements for water rights opposers or Rule 5(b)'s specific provisions for voluntary dismissals of applications for water rights).

Although our holding in AWDI involved the imposition of attorney fees as a condition of granting a voluntary dismissal without prejudice pursuant to C.R.C.P. 41(a)(2), the rationale for our holding foreshadowed our resolution of dismissal with prejudice as well. There we found helpful a body of federal precedent interpreting the virtually identical federal rule. AWDI, 874 P.2d at 878. The federal authorities interpreting the rule uniformly reject any construction that would authorize the imposition of attorney fees, in the absence of bad faith, upon dismissal with prejudice. See, eg., Cauley v. Wilson, 754 F.2d 769, 772 (th Cir.1985)("Fees are not awarded when a plaintiff obtains a dismissal with prejudice ....")(emphasis in original); Colombrito v. Kelly, 764 F.2d 122, 133-34 (2nd Cir.1985) (attorney fees not available when dismissal is with prejudice under Federal Rule 41(a)(2) without "statutory authorization" or "exceptional cireumstances"); see generally 8 James Wm. Moore, et al., Moore's Federal Practice § 41.40[10][d][viiil[Costs Inappropriate if Dismissal is With Prejudice] at pp. 41-168 ("An award of costs and attorney's fees should be denied if the voluntary dismissal is granted with prejudice, since the defendant is not confronted with the future risk of litigation.").

In rejecting an assertion that attorney fees, even for a dismissal without prejudice pursuant to rule 41(a)(2), should be limited to cases involving frivolous, groundless, or vexatious actions, see § 13-17-102, 5 C.R.S. (2002), AWDI emphasized the vastly different purposes of the rule and the statute. We characterized rule 41(a)(2), rather than punishment for the plaintiff, as providing "a means for preserving a potentially meritorious claim for another day or another forum provided that conditions of dismissal [could] be devised to protect the defendants from prejudice." AWDI, 874 P.2d at 8380. We relied on various federal authorities, noting their characterization of the terms and conditions imposed pursuant to the rule as the quid pro quo of allowing the plaintiff to dismiss a potentially meritorious claim without being prevented by the doctrine of res judi-cata from bringing the same suit again, see McCall-Bey v. Franzen, 777 F.2d 1178, 1183-86 (7th Cir.1985), and as allowing the plaintiff to withdraw his action from the court "without prejudice to future litigation." LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). On the other hand, we not only found that section 18-17-102 was intended to punish plaintiffs for frivolous, groundless, or vexatious actions, but also that it was actually "intended to protect a plaintiff from imposition of attorney fees upon dismissal of an unmeritorious claim provided that the plaintiff seeks dismissal promptly after learning that the claim cannot prevail." AWDL, 874 P.2d at 880.

For virtually all of the reasons we gave for interpreting C.R.C.P. 4l(a)(@) to authorize an award of attorney fees as a condition of dismissal without prejudice, the rule cannot be understood to authorize attorney fees as a condition of dismissal with prejudice. A dismissal with prejudice does not cireumvent the limitations of res judicata or afford any advantage for which attorney fees are the "quid pro quo." The plaintiff is barred from future litigation of the same issues to the same extent as would be the case if he had proceeded to adverse judgment. And if a plaintiff were subject to attorney fees despite moving to dismiss with prejudice upon determining that his claim was no longer meritorious, there would be little incentive in moving to dismiss rather than proceeding to some other resolution. Like the corresponding federal rule, C.R.C.P. 41(a)(2) does not provide a separate basis for imposing attorney fees as a condition of dismissing an action with prejudice.

Nor does the unique nature of the special statutory proceeding for water rights determinations prevent, in fact any more than in law, a dismissal with prejudice. Proceedings for the determination of water rights are in no way exempt from the application of res judicata-related doctrines, which have been expressly acknowledged as important for the stability and reliability of Colorado water rights, See Williams v. Midway Ranches Prop. Owners' Ass'n, 938 P.2d 515, 525 (Colo.1997); see also Farmers High Line Canal v. City of Golden, 975 P.2d 189, 200 (Colo.1999). As with other civil actions, a dismissal of a water rights application with prejudice operates to resolve any necessary facts pled by the applicant, against it. See Lake Meredith Reservoir Co. v. Amity Mut. Irr. Co., 698 P2d 1340, 1343, n. 4 (Colo.1985)(dismissal with prejudice "resolved the matter on the merits"). While the same applicant may apply again in the future for rights to water from the same source, it may be barred from asserting its current claim of appropriation, or any priority based on the date of that appropriation. Cf. Southeastern Colorado Water Conservancy Dist. v. Twin Lakes Assocs, Inc., 770 P.2d 1231, 1238 (Colo.1989)("If the former owner of an abandoned water right initiates a new appropriation, the priority of the new water right will be based on the date of the new appropriation.").

Should the legislature determine that multiple applications for conditional water rights, followed by dismissal of some of them, impose an unfair burden on opposers, it is certainly capable of creating additional exceptions to the general rule requiring parties to pay their own attorney fees. See generally Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)("In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser."); Allstate Ins. Co. v. Huizar, 52 P.3d 816, 819 (Colo.2002). Rule 41(a)(2), however, does not authorize the imposition of attorney fees as a condition for granting a motion to dismiss with prejudice an application for water rights, any more than other kinds of actions.

IIL

In conjunction with a cross-motion for summary judgment, the irrigation companies and Boulder challenged the temporary substitute supply plan approved by the state engineer in 1972 and moved to enjoin GASP members from extracting water pursuant to the plan. The water court denied the motion as unrelated to the pending application, noting that the irrigation companies and Boulder could bring a separate action pursuant to C.R.C.P. 65. In its subsequent ruling on GASP's motion to dismiss, the water court also rejected the assertion made by the irrigation companies and Boulder that their request for injunctive relief constituted a pending counterclaim, over which the court was required to retain jurisdiction, according to the provisions of C.R.C.P. 41(a)(2).

While C.R.C.P. 41(a)(2) is not inconsistent with the special statutory proceeding created by section 37-92-3802, and therefore is not rendered inapplicable by C.R.C.P. 81, see AWDI, 874 P.2d 852, the same cannot be said for the counterclaim for injunctive relief made by the irrigation companies and Boulder. Applications for water rights can be adjudicated only in the manner prescribed by section 37-92-8302, in designated courts of limited jurisdiction and according to unique rules of practice and procedure. Rather than resolving claims against other individuals, the adjudication of water rights has as its object the confirmation of pre-existing rights, see City of Lafayette v. New Anderson Ditch Co., 962 P.2d 955, 960 (Colo.1998), and the establishment of priority dates that can be enforced against any other user. Shirola v. Turkey Canon Ranch Ltd. Liab. Co., 937 P.2d 739, 744 (Colo.1997). A determination of water rights is therefore initiated by filing an application, with requirements that are highly tailored to its purpose, rather than a complaint; and the publication and mailing by the water clerk of a statutorily prescribed "resume," rather than service of process on any designated opposing parties Most importantly, however, the statute specifies the scope of this special proceeding. It describes in detail what is included within the term "determination of a water right or conditional water right," see § 37-92-802(1)(a), and what may be pled in a statement of opposition. A statement of opposition may set forth "facts as to why the application should not be granted or why it should be granted only in part or on certain conditions." § 37-92-302(1)(b). In light of the very specialized pleadings created for this statutory proceeding and the detailed allocation of responsibilities among the parties, engineer, referee, and water court in adjudicating water rights, see §§ 37-92-2302 through 805, it is clear that the legislature has tailored a special proceeding for essentially one purpose.

The jurisdiction of water judges over all water matters, see § 37-92-208, 10 C.R.S. (2002), extends well beyond the special statutory proceedings for determination of water rights. See, eg., Bd. of County Com'rs v. Park County, 45 P.3d 693 (Colo.2002); Crystal Lakes Water & Sewer Ass'n v. Backlund, 908 P.2d 534 (Colo.1996); Oliver v. Dist. Court, 190 Colo. 524, 549 P.2d 770 (1976). As already noted, the rules of civil procedure, including those providing for counterclaims and injunctive relief, generally apply to water court practice and procedure. See, eg., Empire Lodge Homeowners' Assn. v. Moyer, 39 P.3d 1139 (Colo.2001)(adjudicating counterclaim for injunctive relief in an action for declaratory and injunctive relief within the water court's jurisdiction). The applicability of the civil rules to the special statutory proceeding defined by section 87-92-802, is, however, necessarily more limited. Unlike civil rules that fill gaps in the practice and procedures specified by the statute, the rules that the irrigation companies and Boulder seek to apply would expand, virtually without limit, the water matters that could be litigated in this special statutory proceeding.

The incongruity that would often result from applying the civil rules, without limitation, to special statutory proceedings is acknowledged by the rules themselves. Rule 81(a) expressly limits the applicability of the rules insofar as they are inconsistent or in conflict with the practice or procedure provided by statute for a special proceeding. We have often held specific rules inapplicable to particular special statutory proceedings because their application would be inconsistent with the purposes of those proceedings. See, e.g., Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1245, 31 L.Ed.2d 465 (1972) (Rule 59 inconsistent with procedures for filing "objections and exceptions" to a water adjudication ruling); T & S Leasing, Inc. v. District Court, 728 P.2d 729 (Colo.1986)(C.R.C.P. 106 not applicable to review of hearing officer's interim order where relief available under Administrative Procedure Act).

However the motion to enjoin GASP members would be most appropriately characterized, within the scheme of the civil rules, and whether or not it would be properly considered as raised, even in a typical civil action, it clearly involved matters and requested relief beyond the seope of a determination of water rights, pursuant to section 37-92-8022. Any civil rules authorizing such a motion or claim were therefore inapplicable, and the water court properly denied the motion without consideration.

IV.

Because C.R.C.P. 41(a)(2) does not authorize the imposition of attorney fees as terms and conditions for the voluntary dismissal of applications for water rights with prejudice, the Water Court's order for attorney fees is reversed; and because the injunction sought by the irrigation companies and the City of Boulder is outside the statutorily prescribed seope of a proceeding for the determination of water rights and would conflict with the purposes of such a proceeding, the water court's denial of the motion made by the irrigation companies and the City of Boulder is affirmed.

      . We addressed the state engineer's authority to unilaterally grant temporary approval of replacement plans in Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo.2003).


author: MILTON C. CRAIG,

text:
    2000 OK JUD ETH 6
    JUDICIAL ETHICS OPINION 2000-6.
    Oklahoma Judicial Ethics Advisory Panel.
    Oct. 13, 2000.
   10 QUESTION 1; May a judge permit his/her picture and name to be used in a campaign advertisement by a spouse who is running for political office?

¶1 SPECIFIC FACTS: A judge's wife is running for political office and wishes to use a family picture in her campaign brochures. The family picture would be of the candidate, the spouse (the judge) and children of the couple; the judge's name would be included, but the information in the brochure would not identify him as a judge, would not state his occupation and would make no reference to his judicial office, nor would it set out the party affiliation of the candidate.

12 WE ANSWER: YES.

T3 Canon 2B: "A judge should not lend the prestige of judicial office to advance the private interests of the judge or others; nor should a judge convey or permit others to convey the impression that they are in the special position to influence the judge."

T4 Canon 5A(1): "Except as authorized herein a judge ... should not:

(b) publicly endorse or publicly oppose another candidate for public office;"

T5 Canon 2A: "A judge should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judi-clary."

T6 We base our answer on the specific facts submitted with the question. The judge is making no statement and is indicating no involvement in the political campaign except allowing the candidate to show the judge as a member of the candidate's family. The photograph is a family picture with nothing to indicate the occupation of the candidate's spouse. The prestige of the office is not being used to assist the candidate.

T7 The public will surely assume that the judge supports his wife's candidacy. Voters who know the judge may be influenced by his position, but they would have that information whether or not the judge appeared in the family photograph. Voters who do not know the judge will receive no clue as to his position from the photograph.

18 Title 20 0.8.1997 $ 1404 is much more strict and as stated in Canon 2A, a judge must comply with the statutes. We do not seek to interpret statutes nor advise judges concerning statutory requirements, but § 1404 provides for the removal of a judge if the judge participates in "any election campaign" other than his own. The statute makes no exception if a spouse or other family member is a candidate for public office.

T 9 In conclusion, a judge may permit his/ her picture in a family photograph to be used by his/her spouse in a political advertisement under the condition outlined in the specific facts of this question.

1 10 Robert L. Bailey, Chairman

Robert A. Layden, Vice-Chairman

Milton C. Craig Concurs in part, dissents in part.

MILTON C. CRAIG,

Concur In Part, Dissent In Part.

{1 While I concur with portions of the majority opinion, I take exception to some of the views expressed therein.

12 Canon 2A provides that "a judge should respect and comply (emphasis added) with the law ...". It is true that this panel's mandate is not to interpret statutes; but if the action a judge inquires about may be a violation of a statute and possibly subject the Judge to the sanction of removal from office, I believe we would be remiss in failing to point out these dangers.

T8 Applying the foregoing discussion to the question addressed in this opinion, it is my opinion that if the action of the judge is a violation of Title 20 0.8.1997 § 1404, prohibiting a judge from engaging in political activity other than the judge's own election, that such action is a violation of Canon 2A and prohibited.

" 4 Insofar as the use of the judge's picture as a part of a family portrait in campaign literature on behalf of the spouse, I agree with the majority that the Canons do not per se, forbid such use. If the picture used is a family photograph not originally taken for campaign purposes, the spouse may have the right to use the same, with or without permission of the judge; but should the judge agree to pose for the picture for the purpose of putting it in the spouse's campaign literature, I would find it difficult to conclude that such action does not constitute engaging in partisan political activity, thus violating the statute and Canon 2A.

11 5 MILTON CRAIG, Secretary