text:
    CAROUSEL FARMS METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado, Petitioner, v. WOODCREST HOMES, INC., a Colorado corporation, Respondent.
    Supreme Court Case No. 18SC30
    Supreme Court of Colorado.
    June 10, 2019
    Attorneys for Petitioner: Alderman Bernstein LLC, Jody Harper Alderman, Carrie S. Bernstein, Amanda E. Bradley, Steven M. Nagy, Denver, Colorado
    Attorneys for Respondent: Dymond Reagor, PLLC, David D. Schlachter, Greenwood Village, Colorado
    Attorneys for Amicus Curiae Institute for Justice: Diana Simpson, Jeffrey Redfern, Arlington, Virginia
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 A subdivision development contemplated by Woodcrest Homes seems to have been yet another casualty of the 2007-2008 financial crisis. Before the economic downturn, Woodcrest was poised to construct the new development adjacent to the town of Parker. But with the economy in dire straits, Woodcrest secured only a small parcel-known as Parcel C-stuck between two larger parcels that were necessary for completion of the project. Now, over a decade after the failed development, a special metropolitan district controlled by a competitor, Century Communities, seeks to condemn Parcel C and finish what Woodcrest started.

¶2 But Woodcrest objects. It claims that the entire condemnation proceeding is really a sham designed to benefit Century. Woodcrest maintains that the condemnation violates both the public use protections of the Colorado Constitution and the statutory prohibition on economic development takings. According to Woodcrest, the purpose of the taking, at the time it occurred, was to satisfy contractual obligations between Century and Parker. Because the public would not be the beneficiary at the time of the taking , Woodcrest contends that this condemnation violates the Colorado Constitution. Moreover, it argues, the taking effectively transfers the condemned land to Century, which violates section 38-1-101(1)(b)(I), C.R.S. (2018), the state's anti-economic development takings statute.

¶3 We disagree. The centerpiece of our jurisprudence on takings and public use is that the taking must, at its core, benefit the public. The condemnation of Parcel C will do just that, with the intended construction of various utilities, public rights of way, and sidewalks. There is nothing in the Colorado Constitution that prohibits private parties from incidentally benefiting from any particular condemnation. Additionally, Colorado's prohibition on economic development takings has no bearing on the condemnation at issue here: The plain language of section 38-1-101(1)(b)(I) prevents public entities from transferring condemned land to private entities. But there was no transfer, and the only entity involved was a public one, the special district.

¶4 Before reaching any of those issues, however, the parties ask us to clarify whether clear error or de novo review applies to a trial court's public use determination. Because public use is ultimately a legal question, we review it de novo, while deferring to the trial court on underlying historical facts.

¶5 Therefore, we hold as follows. First, takings questions present mixed issues of law and fact, with public use being a question of law that is reviewed de novo. Second, takings that essentially benefit the public will survive constitutional scrutiny, even if, at the time of the taking, there is an incidental private benefit. As a result, the taking here is valid. Third, the plain language of section 38-1-101(1)(b) only limits the transfer of condemned land to a private entity and, because there was no transfer and no private entity involved here, that section is inapplicable.

I. Facts and Procedural History

¶6 In 2006, the respondent, Woodcrest Homes, began the process of securing three parcels to build a new development that would be annexed into the town of Parker. Woodcrest purchased Parcel C, a small parcel around twenty feet wide that totaled about 0.65 acres, sandwiched between two approximately twenty-acre parcels known as Parcels A and B. This sliver of land offered Woodcrest an opportunity to plan utilities for its development, as Parcel C already contained a sewer line, a water line easement, and a natural drainage system with culverts. Although Woodcrest was under contract to purchase Parcels A and B, the "weak housing market" left Woodcrest unable to move ahead.

¶7 Fast forward to 2012, when Century acquired Parcels A and B. In 2013, Century offered to purchase Parcel C from Woodcrest, tendering nearly $45,000. Woodcrest rebuffed the offer, remarking that it subsidized, at great cost, Century's ability to complete the development, given that Century intended to use Woodcrest's plans for the development. Undeterred, Century told Woodcrest that it would continue to pursue development and that, if Woodcrest didn't accept some offer, Century would condemn Parcel C with the "Town Council's support." Then, using nearly identical plans to Woodcrest's-which included using an already encumbered Parcel C for sewage, roads, and other public improvements-Century approached Parker. Century asked for the same deal that Woodcrest had in 2006, and Parker agreed that it would annex the development and approve the development's plat, if Century owned all three parcels.

¶8 Century then created a metropolitan district called Carousel Farms (the District). This quasi-municipal structure empowered the District to raise revenue through municipal bonds and, more importantly, condemn property through eminent domain. The District was run solely by Century employees and officers. The District made a final offer to Woodcrest, which Woodcrest rejected. Then, the District sought to condemn Parcel C. But, before it could do so, the District needed to amend the agreement with Parker so that it was the District's possession of Parcel C, not Century's, that was the prerequisite for plat approval and annexation. Parker obliged, and the District initiated condemnation proceedings.

¶9 At the immediate possession hearing in district court, Woodcrest argued that the District was acting as a puppet for Century. To Woodcrest, the District was a mere façade designed to empower Century to acquire Parcel C and complete the development, making the taking not for a public use but for a private one. The district court disagreed, holding that the taking was indeed for public use. The court subsequently adopted the District's proposed findings of fact and conclusions of law, verbatim or almost verbatim.

¶10 A division of the court of appeals disagreed and reversed. First, it concluded that, in condemnation proceedings, the district court's findings of fact were reviewed for clear error and its legal conclusions reviewed de novo. Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc. , 2017 COA 149, ¶ 32, --- P.3d ----. However, it reasoned that the district court's findings were subject to heightened scrutiny because the district court adopted the prevailing party's proposed findings of fact and conclusions of law verbatim. Id.

¶11 Second, the division held that the taking was not for public use, as the taking "itself" was to satisfy the District's contractual obligations, which were, under any metric, not a public use. Id. at ¶¶ 36-38. The eventual dedication for utilities and roads was a "step removed" and couldn't save the taking from infirmity. Id. at ¶ 37.

¶12 Third, the division concluded that the taking was not necessary to accomplish a public use, as there was no public use even in play. Id. at ¶ 41. Moreover, the division reasoned that, because the District was composed of Century employees only, formed after Century couldn't privately acquire Parcel C, and only initiated to meet contractual obligations, the taking was done in bad faith. Id. at ¶¶ 43 -44.

¶13 Finally, the division held that the taking also violated section 38-1-101(1)(b)(I), which prohibits takings that transfer property to private entities for the purpose of economic development. Id. at ¶ 48. To the division, the taking effectively transferred the land to the developer, violating the spirit of section 38-1-101(1)(b)(I) and the rule that the "law may not be used to permit one to accomplish indirectly what he may not achieve directly." Id. at ¶ 52 (quoting Salle v. Howe , 793 P.2d 628, 631 (Colo. App. 1990) ).

¶14 The District petitioned this court for review and we granted certiorari.

II. Analysis

¶15 We begin by addressing the appropriate standard for appellate review of takings questions. While Colorado caselaw has been somewhat muddled on this subject, we conclude that takings questions present mixed issues of law and fact. We therefore defer to a trial court's factual determinations, but we review de novo the legal determination of whether something is for a public use. Next, we analyze the District's taking and determine that, because the taking was essentially for public benefit, it meets the public use requirements of the state constitution and the relevant statutes. Finally, we examine section 38-1-101(1)(b)(I). Because (1) the plain language of the statute only covers transfers from public entities to private entities and (2) the District is a public entity that never initiated any sort of transfer, this statutory provision doesn't apply.

A. Public Use and the Standard of Review

¶16 Our takings cases have sown confusion as to the appropriate standard to review a trial court's public use determination. Sometimes, we have intimated that the standard is clear error-essentially holding that public use is a fact question left to the trial court. See, e.g. , City & Cty. of Denver v. Block 173 Assocs. , 814 P.2d 824, 828-29 (Colo. 1991) ("In examining the stated public purpose for a condemnation, we look to whether the stated public purpose is supported by the record. If so, our inquiry ends."); Pub. Serv. Co. of Colo. v. Shaklee , 784 P.2d 314, 318 (Colo. 1989) ("[A]lthough conflicting evidence was presented at trial, the evidence supports the trial court's conclusion that the condemnation was for a public use ...."). Other times, we have stated that the inquiry involves a mixed question of law and fact. See, e.g. , Glenelk Ass'n, Inc. v. Lewis , 260 P.3d 1117, 1120 (Colo. 2011) (citing Fowler Irrevocable Tr. 1992-1 v. City of Boulder , 17 P.3d 797, 802 (Colo. 2001) ) (stating that the court of appeals defers to findings of fact "unless they are ... clearly erroneous" but "review[s] legal conclusions de novo"); Fowler , 17 P.3d at 802 (citing E-470 Pub. Highway Auth. v. The 455 Co. , 3 P.3d 18, 22 (Colo. 2000) ) ("We defer to the trial court's findings of fact and conduct de novo review of its legal conclusions.").

¶17 We conclude that takings present mixed questions of law and fact, with public use determinations reviewed de novo.

¶18 As a general proposition, findings of fact should be reviewed for clear error, and legal conclusions should be reviewed de novo. See E-470 , 3 P.3d at 22 (citing Valdez v. People , 966 P.2d 587, 598 (Colo. 1998) (Kourlis, J., dissenting)). The judicial system takes this approach for at least two reasons. First, judicial economy-trial courts make factual findings and appellate courts "pronounc[e]" law. See J. Jonas Anderson, Specialized Standards of Review , 18 Stan. Tech. L. Rev. 151, 159-60 (2014). Without this division, district courts would need to reexamine the law in each case, rendering their already time-consuming trial work completely unmanageable. Id. at 160. And if appellate courts were forced to take a fine-toothed comb to the factual disputes in each case, the appellate docket would likewise suffer a major backlog. Id. But because district courts are required to follow appellate precedent and appellate tribunals review legal conclusions de novo, this bifurcation of duties enables appellate tribunals to more efficiently create legal uniformity.

¶19 Second, institutional competence. For example, appellate tribunals don't (and, indeed, can't) make findings of fact. See Valdez , 966 P.2d at 598 (Kourlis, J., dissenting). Without the ability to make factual findings, it's unclear how an appellate court could review factual determinations "anew." See De novo , Black's Law Dictionary (10th ed. 2014) (defining the Latin term "de novo" as "anew"). And, because appellate courts don't make findings of fact, trial judges are the only ones who have the "unparalleled opportunity to determine the credibility of the witnesses and the weight to be afforded the evidence." See M.D.C./Wood, Inc. v. Mortimer , 866 P.2d 1380, 1384 (Colo. 1994) (quoting Page v. Clark , 197 Colo. 306, 592 P.2d 792, 796 (1979) ). The trial judge is essential in sorting the factual wheat from the chaff.

¶20 What does this mean for condemnation proceedings? For starters, when it comes to appellate review of public use determinations, the chaff has already been discarded. The facts have been "found" and the record set by the trial court. And while the debate over the standard of review here demonstrates that the distinction between law and fact isn't always a bright one, fact questions "usually call[ ] for proof" and legal questions "usually call[ ] for argument." Clarence Morris, Law and Fact , 55 Harv. L. Rev. 1303, 1304 (1942). Whether the District condemned Parcel C asks for proof-the trial court needs some sort of evidence that Woodcrest isn't still in possession and control of the parcel. And the District's alleged use of Parcel C as drainage and roads-not to build, say, a home for the CEO of Century-also demands proof. The trial judge's presence is key for sorting through such issues. Cf. Mortimer , 866 P.2d at 1384. These are the "fact" questions that takings cases present. But whether the uses are public tends toward legal pronouncement, cf. Anderson, supra at 159-60, and "calls for argument," cf. Morris, supra at 1304 -in other words, the "legal" part of takings' mixed review. Moreover, having an appellate tribunal look to and set standards around the varied circumstances in which takings arise helps generate the uniformity and workload reduction for which the bifurcated role between trial and appellate courts was, in part, created. Cf. Anderson, supra at 159-60.

¶21 The Supreme Court has also stated that cases that "require courts to expound on the law" are best suited toward de novo review. See U.S. Bank Nat. Ass'n ex rel. CWCapital Asset Mgmt. LLC v. Village at Lakeridge, LLC , --- U.S. ----, 138 S. Ct. 960, 967, 200 L.Ed.2d 218 (2018). More concretely, de novo review is appropriate "when applying the law involves developing auxiliary legal principles of use in other cases." Id. There is "[n]o precise line" for public use determinations. See Tanner v. Treasury Tunnel, Mining & Reduction Co. , 35 Colo. 593, 83 P. 464, 465 (1906). Thus, when analyzing whether something is a public use, there must be a "degree of elasticity capable of meeting new conditions and improvements, and the ever-increasing needs of society." Id. So, because there isn't a strict, immutable test through time, courts are tasked with doing just what the Supreme Court suggests that courts do with de novo review-expound on the law so as to create a set of principles for use in other cases. In other words, public use determinations fit neatly into the framework and principles behind de novo review.

¶22 Therefore, takings cases present mixed issues of law and fact, and a trial court's public use determination should be reviewed de novo. Any cases from this court or the court of appeals holding otherwise are overruled.

B. The Taking Essentially Created a Public Benefit

¶23 We now analyze whether the taking satisfied the public use requirement of our state constitution and statutes. Because the taking's purpose was essentially to benefit the public, we reverse the division's judgment.

¶24 The Colorado Constitution requires that, when the government takes private land, it must pay just compensation and the land must be put to a public use. See Colo. Const. art. II, § 15. The General Assembly has confirmed the importance of this prohibition by further enacting these requirements into statutory law. See § 38-1-101(1)(a), C.R.S. (2018) ("Notwithstanding any other provision of law, in order to protect property rights, without the consent of the owner of the property, private property shall not be taken or damaged by the state or any political subdivision for a public or private use without just compensation."). Additionally, even if a taking is found to satisfy the public use requirement, the land taken must also be necessary to the intended public use. See Mortensen v. Mortensen , 135 Colo. 167, 309 P.2d 197, 199 (1957).

¶25 The term "public use" is inherently amorphous. As noted above, we long ago observed that there is "no precise line" and the meaning of public use is flexible, having a "degree of elasticity capable of meeting new conditions and improvements, and the ever-increasing needs of society." Tanner , 83 P. at 465. To help guide courts, we have set out factors to consider, but these are by no means exhaustive or exclusive. See Shaklee , 784 P.2d at 318 (quoting Larson v. Chase Pipe Line Co. , 183 Colo. 76, 514 P.2d 1316, 1318 (1973) ). Those factors are: "[T]he physicial [sic] conditions of the country, the needs of a community, the character of the benefit which a projected improvement may confer upon a locality, and the necessities for such improvement in the development of the resources of a state." Tanner , 83 P. at 465 ; accord Shaklee , 784 P.2d at 318 (quoting Larson , 514 P.2d at 1318 ).

¶26 These guidelines, however, only assist a court in assessing whether the taking is "essentially for public benefit."

Tanner , 83 P. at 465. It's quite possible that the four Tanner factors point in different directions, rendering them unhelpful in the final analysis. But so long as the taking is "essentially for public benefit," it can withstand constitutional scrutiny. Id. This means that the fundamental and intrinsic nature of the taking must be for public benefit. See Essential , Webster's New College Dictionary (2005) (defining "essential" as "of or constituting the intrinsic, fundamental nature of something"). Of course, private parties may benefit, perhaps significantly. See Shaklee , 784 P.2d at 318-19 (holding that a public utility could condemn property so that it could service the Coors Brewery because the public could eventually use the new power line). But if the purpose and benefit are essentially public, then the taking offends neither the state constitution nor section 38-1-101(1)(a).

¶27 Here, the taking is essentially for public benefit. Parcel C will be used for public rights of way, storm drainage, and sewer improvements. It is difficult to argue that those functions don't essentially benefit the public. It is true that Century will also benefit from the taking, but, as we already explained, that doesn't somehow change the essential benefit from public to private. If a utility company can condemn a large strip of land to supply power to a private, for-profit corporation because residents might use the power line in the future, then the District may condemn Parcel C for planned improvements that will benefit the community. See Shaklee , 784 P.2d at 318-19.

¶28 Significantly, Parcel C was always going to be used for those improvements-even under Woodcrest's original plan-because Parcel C is encumbered by easements and utilities and is best suited for those purposes. While review of potentially improper takings can often be problematic because courts don't know ex ante whether the land will be used as claimed, here we know from the start how the District will utilize Parcel C. See Ilya Somin, Overcoming Poletown , 2004 Mich. St. L. Rev. 1005, 1015 ("In the absence of any binding obligations to deliver on the promised economic benefits, nothing prevents municipalities and private interests from ... failing to provide any such benefit[ ] once courts approve the taking ....").

¶29 The division reasoned that the eventual dedication of the land to a public purpose is insufficient because the "taking itself" wasn't for a public purpose. Carousel Farms , ¶ 35. That is, the first benefit to be received (even if a minor one) is satisfying the contractual obligations between the District and Parker, which isn't a public benefit in any sense. Id. at ¶¶ 35-37. Thus, the argument goes, because that first benefit itself isn't public, the entire taking doesn't pass constitutional muster. Id.

¶30 This analysis fails for two reasons. First, the test is, and has been since 1906, whether the taking is "essentially for public benefit." See Tanner , 83 P. at 465 ; accord Buck v. Dist. Court , 199 Colo. 344, 608 P.2d 350, 351 (1980). A taking may have some sort of antecedent benefit that isn't public, so long as the essential benefit is ultimately public. Presumably, developers and towns frequently enter into agreements before land is condemned. How else would towns garner the political support to complete parks or other public works projects? The town likely would need to hire a developer and sign a contract before it exercised its eminent domain power and spent taxpayers' dollars on the condemnation. But the division's reasoning would have all agreements of this sort fail, because the first benefit or purpose is to satisfy that contractual obligation, even though the essential benefit is ultimately building parks or other public works for the town.

¶31 Second, it relies on flawed precedent on takings and public benefit. The division cites another division's opinion in American Family Mutual for the proposition that the taking itself must be for a public purpose, and, in turn, American Family Mutual cites Trinity Broadcasting for the same notion. See Carousel Farms , ¶ 35 (citing Am. Family Mut. Ins. Co. v. Am. Nat'l Prop. and Cas. Co. , 2015 COA 135, ¶ 30, 370 P.3d 319, 327 ); American Family Mutual , ¶ 30, 370 P.3d at 327 (citing Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 921 (Colo. 1993) ). But Trinity Broadcasting made no such declaration.

¶32 In Trinity Broadcasting , we held that water damage that occurred because of accidental leaking from town-owned water towers wasn't a taking. 848 P.2d at 921. However, we weren't discussing public use at all. The issue was whether the leakage itself counted as an act of eminent domain, not whether the leakage was for public use. Id. at 921-22. And while leakage in another case could count as a taking, the leakage in Trinity Broadcasting didn't because the government lacked "the intent to take the property or to do an act which has the natural consequence of taking the property." Id. Trinity Broadcasting thus has no effect on this case. No one questions that the condemnation of Parcel C was an act of eminent domain. The only issue is whether that act was essentially for the public benefit, which we conclude it was.

¶33 That still leaves us with the question of whether the taking was necessary for the intended public use. See Mortensen , 309 P.2d at 199 (quoting Rothwell v. Coffin , 122 Colo. 140, 220 P.2d 1063, 1065 (1950) ) ("The question of necessity simply involves the necessity of having the property sought to be taken for the purpose intended."). Absent fraud or bad faith, the condemning authority's necessity determination "is final and conclusive and will not be disturbed by the courts." Colo. State Bd. of Land Comm'rs v. Dist. Court , 163 Colo. 338, 430 P.2d 617, 619 (1967). In the District's case, the taking was necessary for the purpose intended because the District needs Parcel C to assemble the land and build the sewage, drains, and so on that the development calls for. That should be the end of the analysis, as the necessity determination is meant to be "final and conclusive," unless there is fraud or bad faith. See id.

¶34 The division, however, held that the District acted in bad faith because it was run by Century employees, who condemned the property to meet the District's contractual obligations, and only did so once negotiations with Woodcrest failed. Carousel Farms , ¶¶ 43-44. But Century and the District always sought to build public improvements and have the development annexed into Parker, and we already rejected the notion that the District and Parker's desire to fulfill their contractual obligations predominated over the essential public purpose of the taking. Moreover, developer employees frequently comprise the sole managers of special districts in their early stages. Therefore, neither of these two facts sufficiently demonstrates the District's bad faith.

¶35 The division's fundamental concern seems to be with the order of the condemnation: The District was only formed after Century failed in negotiations with Woodcrest. True, but there isn't an order-of-formation or order-of-negotiation requirement in the Colorado Constitution or the special district statutes. Holding that there is would involve inserting such a requirement into the statute. And that is not for us to do. See State v. Medved , 2019 CO 1, ¶ 19, 433 P.3d 33, 37 (quoting People v. Diaz , 2015 CO 28, ¶ 15, 347 P.3d 621, 625 ) ("In interpreting a statute, we must accept the General Assembly's choice of language and not add or imply words that simply are not there.").

¶36 Moreover, eminent domain was partly designed to overcome the "holdout" problem that occurred here. See Thomas W. Merrill, The Economics of Public Use , 72 Cornell L. Rev. 61, 74-75 (1986) ("Without an exercise of eminent domain, ... owner[s] would have the power to hold out .... If even a few owners held out, others might do the same."). The District exercised the power of eminent domain to prevent a holdout owner from thwarting the assembly of adjacent properties that would benefit the public.

¶37 The division's and Woodcrest's reliance on Geudner is also unavailing. Carousel Farms , ¶ 45. There, one family operated a special district, and all the land within the district was owned by the family or corporations controlled by the family. Denver W. Metro. Dist. v. Geudner , 786 P.2d 434, 435 (Colo. App. 1989). One of the family-owned corporations, Denver West Properties (DWP), contracted to sell a parcel of land within the district. Id. As a condition of the sale, the purchaser wanted a gulch on the property moved. Id. An engineering firm developed three proposals for flood mitigation of the ditch, but the most "hydrologically sound" option required keeping the gulch on the sale property, which DWP didn't like. Id. So, DWP directed the engineering firm to develop a mitigation plan that would relocate the gulch off the sale property. Id. at 435-36. The proposal moved the gulch to Geudner's land. Id. at 436. When Geudner wouldn't sell the portion of the land to which the gulch would be moved, the district then sought to the condemn property in order to complete the sale. Id. at 435-36. The difference between the taking in Geudner and the District's taking is clear: In Geudner , there was never an initial intention to benefit the public-the justification of flood mitigation was added once the purchaser wanted the gulch moved. See id. And, even then, the most "hydrologically sound" mitigation plan wasn't the chosen one, because that plan required the gulch to remain on the property in question. Id. Here, the trial court found, with ample record support, that Century (and then the District) always planned on putting public improvements on Parcel C; there wasn't a post-hoc public-use justification.

¶38 In sum, so long as the essential benefit of a taking is public, the taking passes constitutional muster. That was the case here.

C. Private Entities, Transfers, and Takings

¶39 After briefly addressing the standard of review, we proceed to interpret section 38-1-101(1)(b)(I). We conclude that the statute doesn't apply to the taking here, as there wasn't a transfer from a public entity to a private one.

1. Standard of Review and Principles of Interpretation

¶40 Issues of statutory construction, like the issue before us, are questions of law that we review de novo. See Doubleday v. People , 2016 CO 3, ¶ 19, 364 P.3d 193, 196. The primary purpose is to give effect to the intent of the legislature. Id. Words and phrases are to be given their plain and ordinary meanings, read in context, and construed according to the rules of grammar and common usage. Id. A statute is to be read as a whole, giving consistent and sensible effect to all its parts. Id. at ¶ 20, 364 P.3d at 196.

2. No Transfer, No Private Entity

¶41 Section 38-1-101(1)(b)(I) unambiguously applies only to transfers of property to private entities. The section states, in part: "For purposes of satisfying the requirements of this section, 'public use' shall not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue." § 38-1-101(1)(b)(I) (emphases added).

¶42 First, this section only covers "transfer[s]." Id. Without a transfer, it doesn't spring into action. Webster's defines a "transfer" of property as "to make over or convey (property, title to property etc.) to another." Transfer , Webster's New College Dictionary (Michael Agnes, ed., 2004). And Black's defines a "transfer" of property as "a conveyance of property or title from one person to another."Transfer , Black's Law Dictionary (10th ed. 2014). Thus, under no circumstance can the word "transfer" apply to a situation in which someone keeps property. In our case, that means that the condemning authority-here, the District-needs to actually convey the condemned property to someone else. But that never happened. The District condemned Parcel C and then kept it. Consequently, the statute doesn't apply.

¶43 But let's assume it somehow did. The property still needs to be conveyed to a private entity. See § 38-1-101(1)(b)(I) (" '[P]ublic use' shall not include the taking of private property for transfer to a private entity ...." (emphasis added)). The only entity involved, however, was a public one-the metropolitan district. Metropolitan districts are special districts that offer many of the same services as towns, such as safety, transportation, street improvement, and fire protection. See § 32-1-103(10), C.R.S. (2018). And, of course, they also have the power of eminent domain. See § 32-1-1004(4), C.R.S. (2018). Therefore, the District functions as a public entity, not a private one. See Public entity , Black's Law Dictionary (10th ed. 2014) (defining "public entity" as a "governmental entity, such as a state government or one of its political subdivisions"). So, even if there somehow was a transfer, it wouldn't have been to a private entity. In other words, the statute wasn't designed to limit a public entity from taking a property and keeping it.

3. Kelo Doesn't Dictate a Different Result

¶44 Both the division below and Woodcrest argue that allowing the District to do what it did here would be to permit Century to accomplish indirectly what it couldn't do directly. For them, Kelo v. City New London and Colorado's anti- Kelo statute prevent the District from finishing the developer's project. See § 38-1-101(1)(b)(I) ; Kelo v. City of New London , 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). However, Kelo and section 38-1-101(1)(b)(I) don't affect the outcome.

¶45 First, as we just explained, the anti- Kelo statute, section 38-1-101(1)(b)(I), doesn't apply when a public entity takes a property and keeps it for itself. The division implies that, through a "manipulation of circumstances," Century violated the spirit of Colorado's anti- Kelo statute. Carousel Farms , ¶ 52. But, the spirit of a statute doesn't displace its plain language. Cf. Doubleday , ¶ 19, 364 P.3d at 196 ("We look first to the language of the statute, giving words and phrases their plain and ordinary meanings."). If the legislature wanted to forbid districts from doing what the District did here, then it could have built safeguards into the metropolitan district statute or the takings statute. And, if districts couldn't work with developers, it's unclear why all districts would have the power to "enter into contracts and agreements affecting the affairs of the special district." See § 32-1-1001(1)(d)(I), C.R.S. (2018).

¶46 Second, Kelo doesn't change any of this. In Kelo , the city of New London sought to condemn a wide swath of land and transfer it to a private company for economic development. 545 U.S. at 473-75, 125 S.Ct. 2655. The Supreme Court said that such a taking didn't violate the Fifth Amendment, but left room for the states to enact more stringent regulations. Id. at 489-90, 125 S.Ct. 2655. In Colorado, that more stringent regulation is section 38-1-101(1)(b)(I). Still, the fact that Colorado took the Supreme Court's advice and enacted a tougher regulation doesn't change the plain language of that regulation.

¶47 The plain language of section 38-1-101(1)(b)(I) only limits the transfer of condemned land to a private entity. Because there was no transfer and no private entity involved here, that section is inapplicable.

III. Conclusion

¶48 The Colorado Constitution requires that condemnation benefit the public, but it doesn't prohibit a private party from also benefiting. When a condemnation's benefits are essentially public, as they are here, there is no constitutional violation. We reach this conclusion through de novo review because, regardless of our previous inconsistencies, public use determinations are best suited toward such review. And although Colorado has a prohibition on economic development takings, that prohibition isn't implicated here because the only entity involved is a public one, which kept the condemned property for itself.

¶49 We therefore hold as follows. First, takings questions present mixed issues of law and fact, with public use being a question of law that is reviewed de novo. Second, takings that essentially benefit the public will survive constitutional scrutiny, even if, at the time of the taking, there is an incidental private benefit. As a result, the taking here is valid. Third, the plain language of section 38-1-101(1)(b) only limits the transfer of condemned land to a private entity and, because there was no transfer and no private entity involved here, that section is inapplicable.

¶50 Accordingly, we reverse the division's judgment and remand for further proceedings consistent with this opinion.

      As it turns out, Parker doesn't typically exercise its eminent domain power and had little intention of using it here.

      It's unclear whether the trial court adopted the proposed findings of fact and conclusions of law verbatim or nearly verbatim, and the parties disagree on this fact. But this disagreement ultimately doesn't matter, as there is no more heightened scrutiny than de novo review, which we hold is the appropriate standard of review for public use determinations.

      We granted certiorari to review the following issues:
      1. [REFRAMED] Whether the court of appeals should review for clear error a trial court's determination that a condemning authority sufficiently demonstrated that a taking is for public use.
      2. [REFRAMED] Whether the court of appeals erred in concluding a metropolitan district failed to prove condemnation of a parcel was for public use and necessary, where the subdivision that would principally benefit from the condemnation did not exist at the time of the taking and development of the subdivision was conditioned on the district's acquisition of the parcel.
      3. [REFRAMED] Whether the court of appeals erred in concluding that a metropolitan district's condemnation of a parcel violated section 38-1-101(1)(b), C.R.S. (2017), when the condemned parcel would be dedicated to the public and would not be transferred to a private entity.

      While Glenelk and Fowler are not prototypical eminent domain cases-they are private condemnation and inverse condemnation cases, respectively-the standards and rules for both types of cases are the same as eminent domain cases like the one before us, other than a few particularities not relevant here. See Glenelk , 260 P.3d at 1120-21 ; Fowler , 17 P.3d at 802. In any event, de novo review of public use determinations is the most appropriate standard of review, as we explain below.

      It's unclear whether the division below applied a de novo or clear error standard to its review. It implies that the standard of review is de novo when it cites to Glenelk . Carousel Farms , ¶ 32 (citing Glenelk , 260 P.3d at 1120 ). But it then reasons that, because the trial court adopted the prevailing party's proposed findings of facts and conclusions of law verbatim, the findings are subject to heightened scrutiny. Id. Heightened scrutiny would be irrelevant if the division was applying de novo review, as there exists a no less deferential standard, therefore suggesting that the division was applying clear error with heightened scrutiny. To the extent that the division applied clear error, we disagree.

      Colorado doesn't adhere to a strict definition of public "use." See, e.g. , Rabinoff v. Dist. Court , 145 Colo. 225, 360 P.2d 114, 119-121 (1961) (reasoning that the public use requirement of the Colorado Constitution contemplates takings for a public purpose and not only use by the public). Thus, public use, as used in the state constitution, more accurately reflects a demand that takings serve a public purpose or benefit, as Tanner and others have articulated. Id . ; see also Tanner , 83 P. at 465.

      Permitting some private benefit by public taking may strike some as unusual. But Colorado is no stranger to this method of encouraging development. Our constitution and statutes contemplate wholly private takings for numerous non-public projects, like drains, mining, and milling. See Colo. Const. art. II, § 14 ; § 38-1-201, C.R.S. (2018) ("[T]he power of eminent domain allows ... individual property owners and corporations to condemn property ... when condemnation is necessary ... to allow beneficial use of private property."); § 38-2-104, C.R.S. (2018) (enabling "the owner of any coal or other mineral lands, not contiguous to any railroad in this state" to "exercise the right of eminent domain and condemn [property]" for the purpose of connecting mineral lands to a railroad).

      This, of course, isn't to say that there's no time limitation whatsoever. It's unlikely that a taking where the public doesn't benefit for a significant amount of time would essentially benefit the public. But, an incidental private benefit that results from fulfilling antecedent contractual obligations doesn't implicate this longer time scale.

      The process of developer-initiated special district formation is by no means peculiar to the District here or Colorado as a state. The Colorado Department of Local Affairs informs as follows: "Metropolitan districts, since they can offer multiple services, are often established by developers to finance, through the issuance of municipal bonds, the infrastructure necessary to support a new subdivision." Special District Assistance, Special Districts: A Brief Review for Prospective Homeowners 3 (Colo. Dep't Loc. Aff.), https://drive.google.com/file/d/0B0m67XbcqVYRbVJYVGFmLURqeU0/view[https://perma.cc/VGT3-N6DW]. And across the United States, special districts spend nearly $175 billion and have almost $300 billion in debt. Nadav Shoked, Quasi-Cities , 93 B.U. L. Rev. 1971, 1977 (2013). Nationally, there are almost as many special districts as there are counties, cities, and towns combined. Id.


source: Caselaw Access Project

author: CHIEF JUSTICE COATS delivered the Opinion of the Court. JUSTICE GABRIEL, dissenting.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Mikel MOREHEAD, Respondent.
    Supreme Court Case No. 15SC935
    Supreme Court of Colorado.
    June 10, 2019
    Attorneys for Petitioner: Philip J. Weiser, Attorney General, L. Andrew Cooper, Deputy Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado
    Attorneys for Respondent: Megan A. Ring, Public Defender, Meghan M. Morris, Deputy Public Defender, Denver, Colorado
    En Banc
   CHIEF JUSTICE COATS delivered the Opinion of the Court.

¶1 The People petitioned for review of the court of appeals' judgment reversing Morehead's convictions for possession and possession with intent to distribute a controlled substance, as well as seven gambling-related charges. See People v. Morehead , 2015 COA 131, ¶ 52, --- P.3d ----. As pertinent to the issue before this court, the trial court denied the defendant's motion to suppress evidence discovered in his home, ruling that the officers' initial entry of the home with the permission of the defendant's former girlfriend was lawful and that the evidence seized in a subsequent search was conducted pursuant to a warrant that was supported by probable cause and was not misleading. By contrast, the intermediate appellate court found that the defendant's former girlfriend lacked either actual or apparent authority to consent to the officers' initial entry of the defendant's home, during which they observed gambling machines. It also declined, however, to either entertain arguments on appeal that the evidence seized in the subsequent warranted search was not the fruit of the initial entry or that its seizure at least came within an exception to the exclusionary rule, or to remand for findings concerning those issues, reasoning that the prosecution was barred from raising any such arguments for not having asserted them at any of the numerous suppression hearings. Instead, the appellate court ordered all the evidence seized from the defendant's residence suppressed, and it reversed his convictions; but in addition, after supplemental briefing, it mandated that the trial court be barred from considering new arguments for admission of that evidence on retrial.

¶2 Because the court of appeals erred in restricting the trial court's discretion to entertain additional evidence or consider additional arguments concerning the seizure of this evidence on retrial, that portion of the judgment of the court of appeals is reversed.

I.

¶3 Mikel Morehead was convicted of possession of a controlled substance, possession with intent to distribute a controlled substance, and seven gambling-related charges. Prior to trial, he moved to suppress all evidence derived from searches of his residence by the police. Following several evidentiary hearings on his motion, the trial court made lengthy written findings of fact and conclusions of law and denied it.

¶4 The court's findings of fact indicated that after arresting the defendant for domestic violence, the police were informed, in great detail, of gambling and drug distribution being conducted by the defendant, by a woman with whom he had a twelve-year intimate relationship and who had until recently resided with him. Earlier on the day of the arrest, she had come back to recover her property. After hearing the former girlfriend's accusations but before returning to the residence with her, the police conducted surveillance of the residence and observed what they considered to be suspicious behavior by a person whom the girlfriend described as a former customer. With her permission but without a warrant, the officers entered the residence with her and observed gambling devices. Before proceeding further, they obtained a warrant, relying only on information and observations other than what they observed inside the residence, and upon a subsequent search, discovered and seized methamphetamine and other evidence of the unlawful distribution of drugs and of illegal gambling.

¶5 Indicating that the issues raised by the defendant were whether the girlfriend's consent was valid, whether the search warrant was supported by probable cause, and whether in any event the affidavit was misleading by material omission, the trial court addressed each in turn and denied the motion to suppress. More specifically, in its lengthy written analysis and conclusions, it found both actual and apparent authority for the girlfriend's consent, probable cause for the affidavit based on the girlfriend's statements, as corroborated by police surveillance, and the absence of any material omission, despite the affidavit's failure to reference the fact that the police had already entered the defendant's residence or that the defendant was in jail at the time of the surveillance. In the absence of finding any Fourth Amendment violation at all, the trial court did not turn to the applicability of, or exceptions to, the exclusionary remedy for a constitutional violation.

¶6 On appeal of the defendant's convictions, the court of appeals reversed. Characterizing the case as one presenting several novel questions in the law of third-party consent, it ultimately determined that the trial court erred in finding the prosecution had proved either actual or apparent authority, and it concluded that the warrantless entry of the defendant's house therefore violated the Fourth Amendment. Without commenting on the trial court's ruling that the subsequent search pursuant to a warrant was itself valid, or specifying the relationship between the seized evidence and the earlier unlawful entry of the residence, the court of appeals declined to entertain the prosecution's assertion that the evidence seized pursuant to this valid warrant was not the fruit of the earlier entry at all and if it were, that it would nevertheless have been admissible under an exception to the exclusionary rule. The appellate court reasoned that these arguments could not be entertained on appeal because the prosecution had not made either of these assertions before the trial court.

¶7 The appellate court did, however, find that the prosecution failed to prove the erroneous admission of the evidence in question was harmless beyond a reasonable doubt and that, although an appellate court would be permitted to affirm a trial court's order denying suppression on any grounds supported by the record below, the record in this case contained no evidence that the officers would have sought a warrant but for being prompted by what they observed on their first unlawful entry. In addition, the court of appeals requested supplemental briefing on the question whether the prosecution should be permitted on retrial to raise arguments regarding what the court referred to as "attenuation and exclusionary rule exceptions," and it concluded that the prior jurisprudence of this court barred the prosecution from doing so. In remanding for a new trial, the court of appeals therefore mandated that the trial court not consider new arguments for admission of the evidence seized from the defendant's residence.

¶8 We granted the People's petition for a writ of certiorari solely on the question whether the court of appeals properly limited the trial court's authority upon retrial to consider additional arguments concerning suppression of this evidence.

II.

¶9 It has long been established that jeopardy does not bar retrial after reversal of a defendant's conviction for legal error, for the reason that the defendant is held to be in "continuing jeopardy" throughout this process, reflecting the reality that until a final judgment on retrial, the "criminal proceedings against an accused have not run their full course." Bravo-Fernandez v. United States , 580 U.S. ----, ----, 137 S.Ct. 352, 363, 196 L.Ed.2d 242 (2016). For largely the same reasons-that the judgment of the first trial has never become final-preclusive doctrines related to res judicata and collateral estoppel are similarly inapplicable to a retrial. See S.O.V. v. People in Interest of M.C. , 914 P.2d 355, 359 & n.4 (Colo. 1996) (distinguishing res judicata and collateral estoppel from law of the case). As a general matter, following the reversal of a criminal conviction and remand for a new trial, neither the defendant nor the government is precluded from presenting new evidence. United States v. Shotwell Mfg. Co. , 355 U.S. 233, 235-36, 243, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957) ("It is undeniable, of course, that upon appellate reversal of a conviction the Government is not limited at a new trial to the evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence."); People v. Duncan , 179 Colo. 253, 500 P.2d 137, 139 (1972) ("Had we reversed the case and ordered a new trial, the additional evidence here complained of would have been admissible on the same issue."). To the extent different evidence and legal arguments concerning prior rulings in the case are not precluded by specific procedural or evidentiary rules, their allowance is therefore governed by the law of the case doctrine.

¶10 While the so-called "mandate rule" is not without its own nuanced interpretations, it is at least clear that the pronouncement of an appellate court on issues presented to it, as well as rulings logically necessary to its holding, become the law of the case. People v. Roybal , 672 P.2d 1003, 1005 (Colo. 1983). At least in the absence of certain unusual circumstances, like newly discovered evidence, the law of the case as established by an appellate court must be followed in subsequent proceedings before the trial court. See id . (citing Cache La Poudre Reservoir Co. v. Water Supply & Storage Co. , 27 Colo. 532, 62 P. 420 (Colo. 1900) ). By contrast, however, the law of the case doctrine is more flexible in its application to reconsideration by the trial court making a decision. In this context, law of the case "merely expresses the practice of courts generally to refuse to reopen what has been decided," and has been described as a "discretionary rule of practice." People ex rel. Gallagher v. Dist. Court , 666 P.2d 550, 553 (Colo. 1983) (quoting Messenger v. Anderson , 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912) and United States v. U.S. Smelting, Ref. & Mining Co. , 339 U.S. 186, 199, 70 S.Ct. 537, 94 L.Ed. 750 (1950), respectively).

¶11 In this case, the court of appeals found that the initial entry by the police into the defendant's residence was not justified by the consent of anyone with either actual or apparent authority, and it therefore found that entry to have been a violation of the Fourth Amendment. We have not accepted for further review the People's challenge to that ruling, and it therefore becomes the law of the case, which under normal circumstances is binding on the trial court upon retrial. We have, however, accepted for further review the court of appeals' order that the trial court is barred from entertaining new arguments for the admission of the evidence seized from the defendant's residence. With regard to this order, the court of appeals does not appear to dispute the authority of a trial court to reconsider its prior rulings or entertain new theories, evidence, or arguments upon retrial generally, but simply misconstrues the rules of criminal procedure and prior holdings of this court to require trial courts to hear, before denying a motion pursuant to Crim. P. 41, all alternate arguments and evidence relevant to the motion, including even those concerning exceptions to the exclusionary remedy for a constitutional violation, whether or not the court believes it has already heard enough to deny the motion or whether it finds a constitutional violation at all.

¶12 Motions to suppress evidence discovered or seized in violation of constitutional protections against unreasonable searches are governed by Rule 41 of the Colorado Rules of Criminal Procedure. The Rule requires that a motion to suppress be made and heard before trial unless the defendant lacks the opportunity or knowledge of the grounds for such a motion or the court discretionarily permits the motion at trial, reflecting the preference in this jurisdiction for the resolution of constitutional suppression issues in time for the parties to prepare their respective cases, and in the event evidence is suppressed, to permit the prosecution an opportunity to appeal the question prior to jeopardy's having attached in the case. Whether the challenged search was authorized by warrant or not, the defendant, as the moving party, bears the burden of going forward with a showing that: (1) the property was illegally seized without a warrant; (2) the warrant is insufficient on its face; (3) the property seized is not that described in the warrant; (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued; or (5) the warrant was illegally executed. People v. Cunningham , 2013 CO 71, ¶ 11, 314 P.3d 1289, 1291 (characterizing the requirements of Crim. P. 41 ). Only if the defendant satisfies this burden is it then upon the prosecution to rebut the allegations of the motion that would otherwise require suppression. Id . at ¶ 12, 314 P.3d at 1291.

¶13 Nevertheless, we have made clear that the trial court has great discretion in managing the suppression hearing, including prescribing the order of evidence and related matters. The trial court "may determine the most expeditious way to proceed, based on the motion to suppress, record documents, any stipulation of the parties, the agreed upon or contested issues identified by the defense and the prosecution, and the need to take additional evidence not already in the record as long as a party is not unfairly prejudiced" by the procedure it orders. Id . at ¶ 13, 314 P.3d at 1292. We have never suggested that a trial court must entertain all evidence and possible arguments opposing a motion to suppress before ruling on any particular aspect of that motion or, for that matter, before simply determining that the court is sufficiently apprised concerning the defendant's allegations to deny the motion in its entirety. This is especially true with regard to entertaining argument against the applicability of, or for exceptions to, the exclusionary remedy for a constitutional violation, when the trial court considers itself sufficiently apprised to rule that no violation has occurred in the first place. The scope and conduct of the suppression hearing are within the sound discretion of the trial court, and the trial court is therefore in the best position to determine whether the parties are at fault for having failed to preserve arguments on a matter the court considered to be at issue before it.

¶14 Our prior decisions declining to entertain particular arguments on appellate review of suppression rulings or declining to remand for additional evidence or findings in any particular case are in no way to the contrary. Our holding in Moody v. People , 159 P.3d 611 (Colo. 2007), upon which the court of appeals heavily relied, implied virtually nothing about the conduct of suppression hearings, much less about a trial court's authority to entertain new arguments or evidence on retrial after the reversal of a conviction. In Moody we merely precluded appellate courts from supporting a trial court's ruling denying a suppression motion with testimony presented later at the trial itself-evidence which was not and could not have been considered by the trial court in ruling as it did. Id. at 614. As we indicated there, we held as we did in that case largely to avoid prejudice to the defendant that would result from permitting the prosecution to continue, without notice to the defendant, litigating the suppression issue after it had already been ruled upon. Id.

¶15 Similarly, those of our prior cases relied on by the court of appeals in which we declined to entertain, or remand for further development, arguments either insufficiently raised or developed in the trial court, were expressly decided on the basis of the circumstances of each of those cases and imply little if anything about the propriety of remanding for further findings by a suppression court generally, much less about the authority of a trial court on retrial following the defendant's successful challenge to an order denying suppression and his subsequent conviction. See People v.Null , 233 P.3d 670, 681 (Colo. 2010) (declining in an original proceeding to order that the state be given another opportunity to attempt to prove extraordinary circumstances justifying failure to honor Null's request for blood test where the state failed to meet its evidentiary burden at the hearing on the matter); People v. Syrie , 101 P.3d 219, 223 (Colo. 2004) (declining to consider on appeal newly raised argument against suppression, as to which trial court was never given a chance to rule); People v. Quintero , 657 P.2d 948, 951 (Colo. 1983) (declining to remand for hearing on inevitable discovery where existing record demonstrated, under the correct legal standard, the futility of that claim). While these cases may demonstrate this court's reluctance to consider or initiate further proceedings concerning arguments not adequately developed below, none purports to control the arguments that can be heard by a trial court upon retrial.

¶16 Both this court and the United States Supreme Court have, when appropriate, ordered limited remand for further findings or the presentation of additional evidence against suppression. See, e.g. , Shotwell , 355 U.S. at 243, 245-46, 78 S.Ct. 245 (granting limited remand for further evidence against suppression, in part because prosecution would be permitted to offer same evidence at retrial if the Court instead reversed defendant's conviction); Duncan , 500 P.2d at 139 (upholding trial court's taking new evidence on remand for additional findings concerning suppression, noting that same evidence would have been admissible on retrial); cf. Giordenello v. United States , 357 U.S. 480, 488, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (declining to rule on newly raised argument that search would have been constitutional even if warrant were defective or to remand for further findings, where doing so would have been unfair to defendant, but expressly leaving open possibility that the same argument could be raised by prosecution at subsequent new trial).

III.

¶17 It is clear from the record below that the evidence in question was seized pursuant to a warrant supported by the statements of the defendant's former girlfriend and police surveillance of the defendant's house alone, without reference to any observations made inside the defendant's residence. Because the intermediate appellate court did not reverse the trial court's finding that the affidavit for search was supported by probable cause and was otherwise valid, the evidence in question would be suppressible only to the extent it was first discovered during the officers' unlawful entry into the defendant's residence and its later seizure pursuant to the valid warrant was not wholly independent of that earlier unlawful entry. See Murray v. United States , 487 U.S. 533, 542, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988); People v. Schoondermark , 759 P.2d 715, 718-19 (Colo. 1988). Although no observations from the earlier entry were relied on to establish probable cause for the warrant, the subsequent search could nevertheless be considered wholly independent of the unlawful entry only upon a specific finding that it was not in fact prompted by what the officers had seen during that initial entry. Murray , 487 U.S. at 542, 108 S.Ct. 2529 ; Schoondermark , 759 P.2d at 719. Because the trial court found the earlier entry to be lawful, it was never faced with the question whether the officers would have pursued a warrant but for their initial entry and observations.

¶18 Unlike prior cases in which it has been apparent that the argument raised on appeal was clearly at issue but not advanced at the suppression hearing, or in which the record of the suppression hearing adequately disposed of the new argument despite its never having been explicitly asserted, the question whether the officers would have pursued a warrant to search the defendant's residence without being prompted to do so by what they observed during the initial, unlawful entry is very much a distinct and live issue. Faced with virtually the identical question, the Supreme Court in Murray and this court in Schoondermark remanded to give the trial court an opportunity to make a specific finding on that question. Murray , 487 U.S. at 543-44, 108 S.Ct. 2529 ; Schoondermark , 759 P.2d at 719-20.

¶19 Where the question before the appellate court is not whether a limited remand should be ordered in lieu of reversal but rather whether the question of officer motivation may be entertained on retrial, the law of the case doctrine places that determination squarely within the discretion of the trial court. Especially where its ruling on the suppression motion at the first trial has been disapproved, it is for the trial court, except where bound by the ruling of a higher court, to determine the appropriateness of entertaining new and different motions, evidence, arguments, or theories by either party.

IV.

¶20 Because the court of appeals erred in restricting the trial court's discretion to entertain additional evidence or consider additional arguments concerning the seizure of this evidence on retrial, that portion of the judgment of the court of appeals is reversed.

JUSTICE GABRIEL dissents, and JUSTICE HOOD joins in the dissent.

JUSTICE GABRIEL, dissenting.

¶21 We granted certiorari to decide whether the division below erred in concluding that, on remand, the trial court could not consider additional arguments regarding whether the exclusionary rule requires evidence to be suppressed. The majority now concludes that the division erred in restricting the trial court's discretion to entertain such additional arguments (and also additional evidence). Maj. op. ¶¶ 2, 19-20. In so ruling, the majority essentially concludes that whenever a court of appeals division orders a new trial based on an improperly denied defense suppression motion, the People are entitled to re-open the suppression hearing in order to present new evidence and arguments that they neglected to raise in the prior hearing. Because I believe that such a ruling is inconsistent with our settled precedent, and because this ruling will needlessly open the door to the relitigation of innumerable issues upon any remand for a new trial, I respectfully dissent.

I. Factual Background

¶22 In this case, the trial court conducted three evidentiary hearings on Morehead's motion to suppress and ultimately denied that motion in a lengthy order. In the course of the evidentiary hearings, the People vigorously contested the motion and were given a full and fair opportunity to present whatever evidence and to make whatever arguments they wished to make. Although the People presented a number of arguments against Morehead's motion, they did not argue that the evidence discovered during the execution of the later warrant-based search was admissible under the attenuation doctrine or because it would have been inevitably discovered, even though the evidence necessary to make these arguments was available and, indeed, was known to the People.

¶23 As the majority notes, the People prevailed in the trial court, but on appeal, the division reversed the trial court's order and remanded the case for a new trial. Now, having lost the fully and finally litigated suppression motion, the People seek to relitigate that motion by presenting arguments that they could have advanced-but chose not to advance-at the prior hearing. Unlike the majority, I do not believe that our precedent affords the People such a second bite at the apple.

II. Analysis

¶24 I begin by discussing our settled precedent in this area of law, and I then apply the pertinent legal principles to the facts of this case.

¶25 Under the law of the case doctrine, "prior relevant rulings made in the same case are to be followed unless such application would result in error or unless the ruling is no longer sound due to changed conditions." People v. Dunlap , 975 P.2d 723, 758 (Colo. 1999). Although trial courts have discretion to apply the law of the case doctrine to their own prior rulings, see id. ,"[t]he law of the case as established by an appellate court must be followed in subsequent proceedings before the trial court," People v. Roybal , 672 P.2d 1003, 1005 (Colo. 1983). This principle "serves the dual purpose of protecting against the reargument of settled issues and assuring the adherence of lower courts to the decisions of higher courts." Id.

¶26 Until today, we have consistently applied these principles in the context of suppression motions.

¶27 For example, in Roybal , 672 P.2d at 1004, the People brought an interlocutory appeal from a district court order suppressing a blood alcohol test from use as evidence in the retrial of a defendant on a vehicular assault charge. After the defendant had been involved in a traffic accident, the police noticed that he smelled of alcohol and placed him in a police car, where, after being advised of his Miranda rights, he gave a written statement about the accident. Id. The police then handcuffed and transported the defendant to the police station, where they administered a blood alcohol test. Id.

¶28 The defendant subsequently moved to suppress the statements that he had made, arguing, among other things, that they were the products of an illegal arrest. Id. He also filed two separate motions to suppress the evidence concerning the blood alcohol test, asserting a due process violation because the blood samples had been destroyed and contending that the evidence was inadmissible because he had not consented to that test. Id.

¶29 The trial court granted the defendant's motion to suppress his statements but denied the motions to suppress the blood test. Id. The prosecution then filed an interlocutory appeal in this court, and we held that the prosecution had not carried its burden of proving probable cause to justify the arrest. Id. We therefore affirmed the suppression of the defendant's statements as the products of an invalid arrest and remanded for further proceedings. Id.

¶30 On remand, the defendant moved to suppress the blood alcohol test as the fruit of an illegal arrest. Id. at 1005. The prosecution responded by seeking to relitigate the issue of probable cause, offering to present the testimony of witnesses who had not appeared at the earlier hearing. Id. Based on the law of the case doctrine, the trial court rejected this effort, and after a second interlocutory appeal, we affirmed. Id. at 1005-06. In doing so, we rejected the prosecution's argument-which mirrors one of the arguments that the People make here-that applying the exclusionary rule and denying a second hearing on probable cause would corrupt the truth-seeking process. Id. at 1006. We also noted that the prosecution had offered no explanation for why it did not present probable cause witnesses at the first hearing. Id. We thus concluded, "[U]nless suppression hearings are to be conducted 'by installment,' as the trial court put it, the prosecution must be prepared to abide the consequences of an adverse ruling when it elects not to offer available probative evidence." Id. This was particularly true given that the evidence that the prosecution subsequently wished to adduce was available at the time of the first hearing. Id. at 1006 & n.7.

¶31 We noted a similar principle in the more recent case of People v. Crippen , 223 P.3d 114, 116-17 (Colo. 2010). There, the district court had suppressed evidence seized during the execution of a search warrant at the defendant's home, finding that the affidavit in support of the warrant had failed to establish probable cause, and the People appealed. Id. at 115. Although we ultimately reversed the district court's order on the merits, we began by noting that the People initially sought reversal based on the good-faith exception to the exclusionary rule, an argument that the People had not made in the district court. Id. at 116-17. We stated, "We have ... long made clear ... that the good faith exception to the exclusionary rule must be asserted by the prosecution at the suppression hearing or reliance on it will be considered waived." Id. at 116. Noting that the prosecution had not alleged the applicability of the good-faith exception in the district court and that the district court therefore had not resolved this issue, we declined to address it on appeal. Id. at 116-17.

¶32 In my view, the principles set forth in these cases apply with equal force here. The People concede that all of the facts and evidence necessary to advance the arguments that they now wish to make were available to them at the time of the previous three-day suppression hearing. Yet, the People chose not to make these arguments, and they offer no compelling reason for their decision not to do so. In these circumstances, I would follow the principle that we articulated in Roybal over three decades ago: "[T]he prosecution must be prepared to abide the consequences of an adverse ruling when it elects not to offer available probative evidence." Roybal , 672 P.2d at 1006.

¶33 Allowing the People instead to relitigate the suppression motion at issue by proffering new evidence and argument would improperly allow suppression hearings to be conducted by installment, and I do not believe that our precedent countenances such a result. Id. ; see also People v. Null , 233 P.3d 670, 681 (Colo. 2010) (refusing to give the prosecution "a second bite at the apple" when it failed to carry its burden of showing extraordinary circumstances to justify the failure to honor a DUI defendant's statutory right to receive a blood test).

¶34 To hold otherwise, as the majority does today, needlessly opens the door to the relitigation of a virtually unlimited range of issues, a result that I fear will impose an intolerable burden on our trial courts. For example, under the majority's rule, in any case in which the prosecution prevails in overturning on interlocutory appeal an order suppressing evidence, the defendant should be permitted to file new and potentially serial motions to suppress, advancing different arguments in support of suppression in the hope that one will eventually succeed. And if the defendant prevails on any such motion, then the People would be able to file further interlocutory appeals, all resulting in further and inordinate delays in the trial proceedings.

¶35 Likewise, it is not clear to me that the majority's new rule would be limited to suppression motions or even to criminal cases. If the granting of a new trial allows the parties to "start over," as the majority suggests, then in any case in which a new trial is ordered, the parties should be permitted to renew every motion that the trial court had previously decided, perhaps in front of a different district judge, in the hopes of getting a more favorable ruling.

¶36 Such scenarios strike me as contrary to our long-settled precedent on law of the case and on claim and issue preclusion. See Foster v. Plock , 2017 CO 39, ¶¶ 12-13, 394 P.3d 1119, 1122-23 (discussing the elements of claim and issue preclusion); Argus Real Estate, Inc. v. E-470 Pub. Highway Auth ., 109 P.3d 604, 608 (Colo. 2005) (noting that the claim preclusion doctrine precludes the relitigation of matters that have been decided or that could have been raised in a prior proceeding). As a result, I would not adopt the broad rule that the majority announces today.

¶37 In reaching this conclusion, I am not persuaded by the People's contention that a rule barring them from relitigating on remand a suppression motion that they lost after being given a full and fair opportunity to litigate will be problematic because it will force them to raise all of their arguments the first time. I perceive no significant or unfair burden in this. Indeed, such a requirement is fully consistent with the above-described principles of the law of the case doctrine and of claim and issue preclusion. Moreover, parties frequently must make strategic choices as to the arguments that they will present in support of or in opposition to a given motion. As we have long recognized, however, a party cannot make such strategic choices and then seek to try an alternative strategy merely because his or her first choice proved unsuccessful. Roybal , 672 P.2d at 1006.

III. Conclusion

¶38 The People had a full and fair opportunity to litigate Morehead's suppression motion, and they have not shown either changed circumstances or any evidence that they did not know and reasonably could not have discovered prior to the suppression hearing. In these circumstances, our settled precedent leads me to conclude that the People should not be permitted to relitigate the suppression motion at issue in order to present arguments that they could have presented when the matter was previously and fully heard.

¶39 Accordingly, I would affirm the judgment of the division below, albeit on different grounds, and therefore respectfully dissent.

I am authorized to state that JUSTICE HOOD joins in this dissent.

      Although not expressly raised or ruled on by the trial court, the prosecution argued in the alternative in the appellate court that the evidence seized from the defendant's residence was seized with his consent. In rejecting that argument, the court of appeals included in its rationale that any such purported consent was clearly not attenuated from the officers' prior illegal entry. To the extent the court of appeals has determined this question of attenuation, it has similarly become the law of the case.


text:
    Francisco "Frank" RUYBALID IV, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LAS ANIMAS COUNTY, Colorado; Anthony Abeyta, member of the Las Animas Board of County Commissioners; Gary D. Hill, member of the Las Animas Board of County Commissioners; Mack Louden, member of the Las Animas Board of County Commissioners; Board of County Commissioners of the County of Huerfano County, Colorado; Gerald Cisneros, member of the Huerfano Board of County Commissioners; Ray Garcia, member of the Huerfano Board of County Commissioners; and Max Vezanni, member of the Huerfano Board of County Commissioners, Respondents.
    Supreme Court Case No. 17SC708
    Supreme Court of Colorado.
    June 10, 2019
    Attorneys for Petitioner: Francisco E. Ruybalid, Trinidad, Colorado, Limited Appearance by Steven Lawrence Jensen, Golden, Colorado
    Attorneys for Respondents Board of County Commissioners of the County of Huerfano, Gerald Cisneros, Ray Garcia, and Max Vezanni: Garrett Sheldon, Walsenburg, Colorado
    Attorneys for Respondents Board of County Commissioners of the County of Las Animas, Anthony Abeyta, Gary D. Hill, and Mack Louden: Newnam Land LLP, Mary D. Newnam, Wimberley, Texas
    En Banc
   JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 Francisco Ruybalid was accused of numerous ethical violations arising out of cases that he either prosecuted or supervised while he was the District Attorney for the Third Judicial District of Colorado. Ultimately, Ruybalid admitted to 26 violations in exchange for another 138 alleged violations being dismissed. As a result of initially contesting the allegations of misconduct, Ruybalid incurred substantial attorney's fees and costs during the disciplinary proceeding. The counties of the Third Judicial District refused to reimburse Ruybalid for these expenses. We must now determine whether the counties are obligated to reimburse Ruybalid for these attorney's fees and costs under section 20-1-303, C.R.S. (2018), which directs a county to reimburse a district attorney for "expenses necessarily incurred in the discharge of his official duties for the benefit of [the] county."

¶2 We conclude that because Ruybalid's ethical violations were at times committed recklessly or knowingly, his attorney's fees and costs were not necessarily incurred in the discharge of his official duties. Hence, we hold that Ruybalid is not entitled to reimbursement for the attorney's fees and costs that he incurred in defending the disciplinary proceeding against him, and therefore he failed to state a claim for relief in his original complaint. As a result, we affirm the court of appeals' decision on different grounds.

I. Facts and Procedural History

¶3 Ruybalid served as District Attorney for the Third Judicial District of Colorado, which comprises Las Animas and Huerfano Counties (the Counties). During Ruybalid's term as district attorney, the Office of Attorney Regulation Counsel filed two disciplinary complaints against him that alleged over 150 ethical violations related to his failure to provide discovery in cases that he either prosecuted or supervised. During the ensuing disciplinary proceeding, the Counties refused to assume the cost for Ruybalid's defense; as a result, Ruybalid hired private counsel. The disciplinary proceeding eventually resolved when Ruybalid entered into a stipulation. In that stipulation, Ruybalid admitted that he had failed to provide the required discovery in eighteen cases. Ultimately, Ruybalid admitted to twenty-six ethical violations: eight violations of Colo. RPC 1.3 (failure to act diligently and promptly in representing a client); eight violations of Colo. RPC 8.4(d) (engaging in conduct that is prejudicial to the administration of justice); and ten violations of Colo. RPC 5.1(b) (failure to make reasonable efforts to ensure that subordinate lawyers conform to the Rules of Professional Conduct). In return, 138 alleged ethical violations were dismissed. For purposes of determining the appropriate sanction, Ruybalid stipulated that his mental state varied during each ethical violation from negligent, to reckless, to knowing. As a result of the stipulation, Ruybalid agreed to pay over $ 23,000 in costs incurred in the disciplinary proceeding; he was then suspended from practicing law for six months, which was stayed pending his successful completion of a twenty-three-month probation period. In addition to the $ 23,000 in costs, Ruybalid claims to have accrued over $ 200,000 in attorney's fees.

¶4 After resolving the disciplinary case, Ruybalid filed a complaint in district court for a declaratory judgment and attached a copy of the stipulation from the disciplinary proceeding. In the complaint, Ruybalid asserted that the Counties were obligated to reimburse him for the attorney's fees and costs that he incurred during the disciplinary proceeding as well as the costs that he would incur in complying with the terms of his probation. Ruybalid argued that the fees and costs from the disciplinary proceeding were "expenses necessarily incurred in the discharge of his official duties for the benefit of" the Counties under "the DA Expense Statute"- section 20-1-303. Ruybalid pointed to two other sources of potential authority to support his argument that the Counties were obligated to reimburse him: section 24-10-110, C.R.S. (2018), of the Colorado Government Immunity Act (CGIA) and Colorado Counties Casualty & Property Pool v. Board of County Commissioners , 51 P.3d 1100 (Colo. App. 2002) (holding that a district attorney was entitled to attorney's fees incurred while defending against a wrongful discharge lawsuit). The Counties moved to dismiss the complaint for failure to state a claim under C.R.C.P. 12(b)(5).

¶5 The district court granted the motion to dismiss. It first found that Ruybalid's actions were disallowed by ethical canons. For this reason, the court concluded that his conduct did not constitute performance of the official duties of a district attorney, and thus was not covered by the DA Expense Statute. Additionally, the district court found that section 24-10-110 of the CGIA did not cover Ruybalid's attorney's fees because there was no injury sustained by a third party-a requirement under the CGIA. Finally, the court concluded that Colorado Counties was distinguishable because Ruybalid's cause of action pertained to defending a claim of an ethical violation, whereas Colorado Counties pertained to defending against a tort claim.

¶6 The court of appeals affirmed on different grounds. It began its analysis by applying the American Rule, which provides that absent statutory authority to the contrary each party is presumed responsible for its own litigation fees and costs. Ruybalid v. Bd. of Cty. Comm'rs , 2017 COA 113, ¶ 8, --- P.3d ---- (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 602-03, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ; Bernhard v. Farmers Ins. Exch ., 915 P.2d 1285, 1287 (Colo. 1996) ). Because the DA Expense Statute did not overcome the American Rule's presumption, the court of appeals concluded that the statute could not be read to cover Ruybalid's attorney's fees and costs. Id. at ¶¶ 11-13.

¶7 The court of appeals also differed from the district court in its handling of section 24-10-110 of the CGIA and Colorado Counties . The court of appeals refrained from applying Colorado Counties because it "did not agree with [the case]." Id. at ¶ 17. And it concluded that there was "no analytical basis to import the CGIA into [the DA Expense Statute]." Id.

¶8 We granted certiorari.

II. Standard of Review

¶9 We review questions of law de novo. Lucero v. People , 2012 CO 7, ¶ 19, 272 P.3d 1063, 1065. Whether a statute mandates an award of costs or attorney's fees is a question of statutory interpretation that we also review de novo. Crandall v. City of Denver , 238 P.3d 659, 661 (Colo. 2010).

III. Analysis

¶10 We begin by concluding that the American Rule is inapplicable to Ruybalid's case. Next, we examine the elements of the DA Expense Statute and conclude that because Ruybalid's ethical violations were at times committed recklessly or knowingly, his attorney's fees and costs were not necessarily incurred in the discharge of his official duties. Hence, we hold that Ruybalid is not entitled to reimbursement for the attorney's fees and costs that he incurred in defending the disciplinary proceeding against him, and therefore he failed to state a claim for relief in his complaint.

A. The American Rule Is Not Applicable

¶11 As noted, the court of appeals relied on the American Rule-the presumption that parties pay their own legal fees and costs absent explicit statutory authority otherwise-to affirm the trial court's dismissal of Ruybalid's complaint. Ruybalid , ¶ 8. In Colorado, the American Rule has typically applied in cases involving a request for the losing party to pay the attorney's fees of the prevailing party. See id. That is not the case here. Rather, Ruybalid is asking for a nonparty to reimburse him for attorney's fees and costs incurred during his disciplinary hearing. We decline to extend the American Rule to this circumstance. Therefore, we conclude that the American Rule is inapplicable in this context.

B. The DA Expense Statute

¶12 The DA Expense Statute, section 20-1-303, allows for district attorneys to collect and receive funds from the counties in their district for expenses necessarily incurred in the discharge of their duties:

Except as otherwise specifically provided, the district attorney of each judicial district in the state of Colorado, and each of his assistants and deputies, shall be allowed to collect and receive from each of the counties in his district the expenses necessarily incurred in the discharge of his official duties for the benefit of such county.

¶13 Broken down, the DA Expense Statute contains three elements that must be met before the counties that constitute a district must reimburse its district attorney: (1) there must be fees, (2) that were necessarily incurred in the discharge of the district attorney's official duties, and (3) for the benefit of the county. See § 20-1-303. Because this case arises out of a C.R.C.P. 12(b)(5) motion, we accept Ruybalid's assertion that he incurred fees for legal services. We therefore turn to the second element: whether Ruybalid's fees were necessarily incurred in the discharge of his official duties.

¶14 Ruybalid argues that this element is satisfied because all of the actions that gave rise to the allegations in the disciplinary proceeding occurred during the course of cases he either prosecuted or supervised as District Attorney. No one disputes that the conduct subject to the disciplinary action occurred when Ruybalid was the elected District Attorney for the Third Judicial District, but that is not the end of the inquiry. The question remains whether those violations were necessarily incurred in the discharge of his official duties. We now turn to this question.

¶15 To begin, a district attorney is responsible for enforcing the law, see People v. Dist. Court , 632 P.2d 1022, 1023 (Colo. 1981) (citing Singer v. United States , 380 U.S. 24, 37, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) ), and is charged with acting as a zealous advocate and an administrator of justice, Criminal Justice Standards for the Prosecution Function, Standard 3-1.2(a) (Am. Bar Ass'n 2018). In this capacity, a district attorney owes a duty to appear on behalf of the state and any counties in his or her judicial district. § 20-1-102, C.R.S. (2018). But the duties of a district attorney do not just require appearing in court; rather, a district attorney must do justice. See Criminal Justice Standards for the Prosecution Function, Standard 3-1.2(b) (explaining that a prosecutor has a duty "to protect the innocent and convict the guilty"). Inherent in the pursuit of justice is the obligation to comply with the Rules of Professional Conduct. See People ex. rel. N.R. , 139 P.3d 671, 678 (Colo. 2006) (Bender, J., concurring in part and dissenting in part) (explaining that district attorneys owe an ethical duty to the judicial process, which includes a duty to comply with the Rules of Professional Conduct). Additionally, the district attorney must comply with the Rules of Criminal Procedure. These rules impose an obligation on the district attorney to provide discovery to the defense in accordance with Crim. P. 16. See People v. Millitello , 705 P.2d 514, 518-19 (Colo. 1985) (explaining that adherence to Crim. P. 16"is grounded in the constitutional requirements of due process").

¶16 Significantly, Ruybalid's ethical violations arose out of discovery violations and resulted in fifteen cases being dismissed. In other words, Ruybalid's conduct was so deficient that the court found that suppression of evidence or dismissal was the appropriate sanction. That is remarkable, because a trial court is required to impose the least severe sanctions that will assure compliance with discovery orders. People v. Lee , 18 P.3d 192, 196-97 (Colo. 2001). Under this rationale, the exclusion of evidence or the dismissal of a case is appropriate when there is willful misconduct or a pattern of neglect by the prosecutor. See id. The fifteen cases being dismissed as sanctions is consistent with Ruybalid's stipulation that many of his ethical violations were committed recklessly or knowingly. We conclude that costs that arise from recklessly or knowingly engaging in unethical conduct cannot by any standard constitute costs that are necessarily incurred in the discharge of a district attorney's official duties.

¶17 Simply put, Ruybalid was sanctioned for failing to perform his official duties in an extraordinarily high number of cases, and he stipulated that in many of these cases that he had done so recklessly or knowingly. Hence, we conclude that Ruybalid's fees and costs were not incurred in the discharge of his official duties. Because all three elements of the DA Expense Statute must be established for a district attorney to be entitled to reimbursement, Ruybalid is not entitled to reimbursement under the DA Expense Statute.

¶18 Our conclusion today is fact-specific and does not mean that a district attorney may never recover attorney's fees and costs incurred while defending allegations of an ethical violation. To the contrary, in many instances the costs associated with defending allegations of an ethical violation would meet the three elements of the DA Expense Statute, and therefore it would be the responsibility of the counties constituting a judicial district to assume the expenses incurred by its district attorney when such an event occurs. This distinction reflects the reality that an allegation of an ethical violation can be the byproduct of the adversarial system and is thus beyond the control of the district attorney. In Ruybalid's case, however, he committed ethical violations recklessly and knowingly and, therefore, these ethical violations were completely within his control.

C. Ruybalid Failed to State a Claim for Relief

¶19 Ruybalid argues that because Warne v. Hall , 2016 CO 50, 373 P.3d 588, had not been decided when he filed his complaint, the lower courts should have allowed him to file an amended complaint that complied with Warne instead of dismissing his case. In Warne , this court adopted the "plausible on its face" pleading standard for making a claim under C.R.C.P. 8(a)(2) as articulated in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), thereby mirroring the U.S. Supreme Court's abandonment of the previous "no set of facts" pleading standard. Warne , ¶ 12, 373 P.3d at 592. In adopting the plausibility standard in Warne , we acknowledged that justice required that Warne be given an opportunity to amend her complaint because she had no prior notice of the new pleading requirements. Id. at ¶ 29, 373 P.3d at 597 (citing C.R.C.P. 15(a) ). Ruybalid argues that he should also be permitted to amend his complaint because Warne was decided over four months after he filed his complaint. We disagree.

¶20 The justification that permitted Warne to amend her complaint is absent in Ruybalid's case. In Warne , we did not conclude that Warne had no legal basis for her lawsuit. Instead, we concluded that Warne had failed to provide sufficient evidence that the defendant "improperly" induced a party to breach a contract, an element of her claim of intentional interference with a contract. Id. at ¶¶ 25-27, 373 P.3d at 595-96. Here, in contrast, we are concluding that there is no legal basis for Ruybalid to recover his attorney's fees and costs. Thus, unlike in Warne , there is no new evidence that Ruybalid could include in an amended complaint that would satisfy the "plausible on its face" standard. Therefore, justice does not require that Ruybalid be permitted to file an amended complaint.

IV. Conclusion

¶21 For the foregoing reasons, we affirm the judgment of the court of appeals.

      We granted certiorari to review the following issues:
      1. Whether the court of appeals erred in upholding the trial court's dismissal of the case for failure to state a claim, based on its conclusion that Ruybalid did not plead facts sufficient to show that the expenses were incurred in his official duties and for the benefit of the counties.
      2. Whether the court of appeals erred in holding that the "expenses" for which a district attorney is entitled to reimbursement by the counties of his district, according to section 20-1-303, C.R.S. (2017), cannot include attorney's fees and litigation costs, regardless of the nature of the litigation against which the district attorney must defend.

      The two complaints were heard in a single disciplinary proceeding that resulted in a single stipulation. Therefore, we refer to the complaints as the disciplinary case or the disciplinary proceeding.

      Prior to the initiation of the disciplinary proceeding, the Counties had obtained insurance coverage for Ruybalid that led to a $ 7,000 check being issued to him.

      Ruybalid also argued that even if he had no statutory right to attorney's fees and costs, he was entitled to such under theories of equitable and promissory estoppel. The district court and the court of appeals each found that Ruybalid did not have an equitable claim to attorney's fees and costs, and we did not grant certiorari on that issue.

      Fourteen cases were dismissed by the prosecution due to the court's imposition of a sanction that suppressed evidence. One case was dismissed by the judge as a sanction after finding a "severe" discovery violation at a pretrial conference.

      None of the orders imposing sanctions were appealed.

      This conclusion is consistent with the holding in Colorado Counties , but Colorado Counties is not dispositive because it involved a tort claim. 51 P.3d at 1101. Colorado Counties involved a district attorney who sought indemnification under the DA Expense Statute for the defense and settlement expenses that he incurred while defending a wrongful termination lawsuit brought by one of his former employees. Id. The court of appeals held that the district attorney was entitled to indemnification. Id. at 1102. In reaching this holding, the Colorado Counties court concluded that the DA Expense Statute extended beyond the mere day-to-day activities of a district attorney. Id.

      We recognize that Ruybalid's stipulation expressed that his mental state during some of the ethical violations was negligent. However, nowhere is it delineated which of the ethical violations were committed negligently. Due to the scope and breadth of the ethical violations in this case, we conclude that the negligent conduct mentioned in the stipulation does not change our analysis.