SUPREME COURT

STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203

On Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 2019 CA 621

Petitioners:
TABOR FOUNDATION, a Colorado nonprofit corporation;
COLORADO UNION OF TAXPAYERS FOUNDATION, a
Colorado nonprofit corporation; REBECCA R. SOPKIN, an
individual; and JAMES S. RANKIN, an individual,
v.
Respondents:
COLORADO DEPARTMENT OF HEALTH CARE POLICY
AND FINANCING; COLORADO HEALTHCARE COURT USE ONLY
AFFORDABILITY AND SUSTAINABILITY ENTERPRISE; Case No.
KIM BIMESTEFER, in her official capacity as Executive Director 2020 SC 966
of the Colorado Department of Health Care Policy and Financing;
COLORADO DEPARTMENT OF THE TREASURY; DAVE
YOUNG, in his official capacity as Colorado State Treasurer; and
the STATE OF COLORADO, and
Respondent/Intervenor:
COLORADO HOSPITAL ASSOCIATION.

PHILIP J. WEISER, Attorney General

W. ERIC KUHN, Senior Assistant Attorney General*
JENNIFER L. WEAVER, First Assistant Attorney General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor, Denver, CO 80203
Telephone: (720) 508-6143/6145, FAX: (720) 508-6041
E-Mail: [email protected]/[email protected]
Registration Number: 38083/28882
*Counsel of Record

STATE DEFENDANTS’ OPPOSITION BRIEF

TO PETITION FOR WRIT OF CERTIORARI
 CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 25, 32, and
53 including all formatting requirements set forth in these rules. Specifically, the
undersigned certifies that:

The brief complies with the applicable word limits set forth in C.A.R. 53(f)(1).

☒ It contains 3,624 words (petition, cross-petition, opposition brief does not

exceed 3,800 words; reply brief does not exceed 3,150 words).

I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 25, C.A.R. 32, or C.A.R. 53.

s/ W. Eric Kuhn
W. Eric Kuhn

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 TABLE OF CONTENTS

STATEMENT OF THE CASE .............................................................................. 1 

REASONS FOR DENYING THE PETITION ...................................................... 3 

I.  The court of appeals opinion applied settled Colorado law on standing
to bring suit. ................................................................................................... 4 

A.  The court of appeals correctly articulated this Court’s precedent for
taxpayer standing. .......................................................................................... 4 

B.  The court of appeals correctly applied this Court’s precedent to the
arguments and facts presented by Petitioners. .............................................. 8 

II.  Petitioners ask this Court to engage in factual error correction without
even a citation to the record that would show any error occurred. ............... 11 

III.  Petitioners waived the other issues in the petition by failing to raise or
fully develop them in the court of appeals.................................................... 12 

CONCLUSION ...................................................................................................... 15 

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 TABLE OF AUTHORITIES

CASES 

Ainscough v. Owens, 90 P.3d 851 (Colo. 2004) .......................................................... 5

Am. Fam. Mut. Ins. Co. v. DeWitt, 218 P.3d 318 (Colo. 2009) .................................13

Barber v. Ritter, 196 P.3d 238 (Colo. 2008) ..................................................... passim

Boatright v. Derr, 919 P.2d 221 (Colo. 1996) ............................................................13

Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886 (Colo. 2001) ................... 6, 7

City & Cty. of Denver v. Qwest Corp., 18 P.3d 748 (Colo. 2001) ...............................13

Colby v. Progressive Cas. Ins. Co., 928 P.2d 1298 (Colo. 1996) .................................13

Colo. Permanente Med. Group, P.C. v. Evans, 926 P.2d 1218 (Colo. 1996) .......... 12, 13

Colo. State Civil Serv. Emps. Ass’n v. Love, 448 P.2d 624 (Colo. 1968)..................... 5

Colo. Union of Taxpayers Found. v. City of Aspen, 2018 CO 36 .................................. 7

Hickenlooper v. Freedom from Religion Foundation, 2014 CO 77 ........................ passim

Hotaling v. Hickenlooper, 275 P.3d 723 (Colo. App. 2011) cert. denied, No.
11SC556, 2012 WL 934231 (2012) ................................................................ 5, 6, 9

Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61.......... 12

Moody v. People, 159 P.3d 611 (Colo. 2007) ..............................................................13

People v. Hearty, 644 P.2d 302 (Colo. 1982) ............................................................13

People v. Salazar, 964 P.2d 502 (Colo. 1998) ...........................................................13

Reeves-Toney v. School District No. 1 in City and County of Denver, 2019 CO 40

................................................................................................................. 7, 8, 9, 10

Rose v. United States, 629 A.2d 526 (D.C. 1993) ......................................................13

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Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M .................................... 14

United States v. Ford, 525 F.2d 1308 (10th Cir. 1975) ..............................................13

Wimberly v. Ettenberg, 570 P.2d 535 (Colo. 1977) ................................................. 5, 8

STATUTES 

§ 25.5-4-402.3(3), C.R.S. (2016) .............................................................................. 1

§ 25.5-4-402.4(3), C.R.S. (2019) .......................................................................... 1, 2

RULES 

C.A.R. 49 ................................................................................................................. 3

C.A.R. 49(d)............................................................................................................15

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 The Colorado Department of Health Care Policy and Financing, Colorado

Healthcare Affordability and Sustainability Enterprise, Kim Bimestefer, in her

official capacity as Executive Director of the Colorado Department of Health Care

Policy and Financing, Colorado Department of the Treasury, Dave Young, in his

official capacity as Colorado State Treasurer, and the State of Colorado, together

the “State Defendants,” oppose the Petition for Writ of Certiorari.

STATEMENT OF THE CASE

Petitioners are two foundations that advocate on tax issues, and two of their

individual members. Petitioners filed this case in 2015, challenging the Hospital

Provider Fee program, which was created in 2009. The Hospital Provider Fee

program charged hospitals a fee, matched the fee with federal funds, and used the
combined funds to increase hospital reimbursement and to provide expanded

coverage under the State’s Medicaid program. Petitioners alleged the fees violated

TABOR because they were actually taxes passed without a popular vote. The State

Defendants moved to dismiss the complaint because Petitioners lacked standing

and because they had failed to state a claim for relief.

Nearly two years later, the General Assembly ended the Hospital Provider

Fee program, and created a different program called the Colorado Healthcare

Affordability and Sustainability Enterprise, or CHASE. Petitioners amended their

complaint to challenge the new CHASE fee, the CHASE enabling legislation under

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the single subject provision of the Colorado constitution, and the amount by which

the TABOR and Referendum C caps were adjusted when CHASE was created.

The parties supplemented their motion to dismiss briefing. The district court did

not rule on the motion to dismiss, but instead deemed the case at issue and directed

the parties to move forward with the litigation.

The parties then filed cross-motions for summary judgement, agreeing that

no facts were at issue, just questions of law. State Defendants again challenged
Petitioners’ standing to bring their claims. The district court found that the

Petitioners did have standing, and proceeded to substantively find against them on

each of their claims.

Petitioners then appealed their substantive loss to the court of appeals, and

the State Defendants cross appealed, still challenging Petitioners’ standing to bring

their claims. The court of appeals issued a well-reasoned opinion that clearly
articulated and applied this Court’s precedent on taxpayer, individual, and

associational standing. The court of appeals correctly determined that Petitioners

were not fee paying hospitals, that there was no nexus between them as taxpayers

and the challenged government action, and that they had not suffered injury in fact

as individuals or associations. The court of appeals thus affirmed the district

court’s dismissal of the case, but for lack of standing.

Petitioners’ strategy below largely mirrors their approach in this Court: they

rely solely on Barber v. Ritter, 196 P.3d 238 (Colo. 2008), to claim they need only

2
allege a constitutional violation to proceed. But they did not substantively develop

their arguments or defend their position on standing. They did not show the lower

courts that they had injury in fact, or that there was any nexus between their status

as taxpayers and the challenged government action. The court of appeals correctly

stated and applied this Court’s standing jurisprudence, particularly in the 13 years

since Barber. Petitioners had a full and fair opportunity to present their arguments,

and the court of appeals addressed the arguments Petitioners made. The opinion is
correct based on the arguments presented, and Petitioners do not meet the

standards for review by this Court.

REASONS FOR DENYING THE PETITION

This Court exercises its discretion to issue a writ of certiorari for “special
and important reasons,” including a lower court deciding a question of substance

not previously decided by this Court, a split between panels of the court of appeals,

or a decision that has so far departed from the accepted and usual course of judicial

proceedings as to require this Court to exercise its supervisory authority. C.A.R.

49.

There is nothing in the court of appeals’ standing analysis that requires

certiorari to clarify or correct. It does not depart from the precedents of this Court.

There is no split between different divisions of the court, and the division that

heard this case below did not break new ground. Nor did the division ignore Barber.

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To the contrary, it appropriately focused on Colorado common law, including this

Court’s recent opinions, which articulate the test for taxpayer standing in

Colorado. The proceedings here do not reflect the presence of the special and

important reasons needed for this Court’s review, and the petition should be

denied.

I. The court of appeals opinion applied settled Colorado law on standing to

bring suit.

A. The court of appeals correctly articulated this Court’s

precedent for taxpayer standing.

Petitioners first argue this Court should grant the petition to “clarify
whether and to what extent a ‘nexus’ is required to establish taxpayer standing in a

constitutional challenge to state spending.” Pet. 5. The court of appeals opinion

does not require clarification. To the contrary, it articulates the recent decisions of

this Court and applies those decisions to the facts below. The opinion neither

decides a question of substance not yet decided by this Court, nor does it represent

a conflict between different divisions of the court of appeals.

Petitioners base their argument almost exclusively on this Court’s holding in

Barber v. Ritter. Pet. 6. Petitioners claim that the court of appeals departed from

precedent by failing to follow Barber, and that the court should have reached the

opposite result because Petitioners merely alleged there had been an unlawful

government expenditure. Pet. 7. But Petitioners’ Barber argument does not account

4
for the developments in the common law that have occurred since it was issued,

developments that the court of appeals rightly observed.

The long-standing Colorado test for standing examines whether a challenged

action has caused (1) an injury in fact (2) to a legally protected interest. Wimberly v.

Ettenberg, 570 P.2d 535, 538 (Colo. 1977). While Colorado traditionally provides

“broad taxpayer standing in the trial and appellate courts,” that general principle

does not give standing to every taxpayer. Ainscough v. Owens, 90 P.3d 851, 856
(Colo. 2004) (citing Colo. State Civil Serv. Emps. Ass’n v. Love, 448 P.2d 624, 627

(Colo. 1968)). In 2008, this Court decided Barber, and made the statement that

Petitioners quote: “Colorado case law requires us to hold that when a plaintiff-

taxpayer alleges that a government action violates a specific constitutional

provision such as [TABOR], such an averment satisfies the two-step standing

analysis.” Barber, 196 P.3d at 247.

But that does not end the taxpayer standing analysis. In 2011, the court of

appeals examined this Court’s standing jurisprudence where a citizen claimed that

a state department’s expenditures of federal funds violated the Colorado

constitution. Hotaling v. Hickenlooper, 275 P.3d 723, 726 (Colo. App. 2011), cert.

denied, No. 11SC556, 2012 WL 934231 (2012). The citizen claimed that he had

standing merely because he had alleged a constitutional violation. Id.

The court of appeals disagreed, concluding that “based on the context of the

statement [in Barber] and the holdings of the cases on which the court relied, that

5
the court did not intend to dispense with the requirement that there be some nexus

between the plaintiff’s status as a taxpayer and the challenged government action.”

Id. (citing Barber, 196 P.3d at 246–47). The court of appeals determined that the

nexus requirement was reinforced by Brotman v. East Lake Creek Ranch, L.L.P., 31

P.3d 886 (Colo. 2001). There, the plaintiff alleged that the Land Board had violated

constitutionally mandated sale procedures. This Court observed that “income

generated from the Land Board’s management of school lands is distinct from and
in addition to income generated through taxation for schools.” Hotaling, 275 P.3d

at 727 (quoting Brotman, 31 P.3d at 892). It concluded that “because the Land

Board’s management—or mismanagement—of school lands has no effect on the

state’s funding of schools through the taxing power, management decisions of the

Land Board have no effect on the plaintiff as a taxpayer.” Id. Because the Hotaling

plaintiff challenged the expenditure of federal funds, and since he had no

connection to those funds as a Colorado taxpayer, the court determined that he had

not shown the required nexus—and thus injury-in-fact. Id.

Three years later, this Court revisited taxpayer standing in Hickenlooper v.

Freedom from Religion Foundation, 2014 CO 77. Far from requiring a mere allegation

of unconstitutionality, the Court began its “analysis by considering whether

Respondents have suffered an injury as Colorado taxpayers that is sufficient to

establish taxpayer standing.” ¶¶ 8, 11. The Court then articulated that “[t]o satisfy

the injury-in-fact requirement, however, the plaintiff must demonstrate a clear

6
nexus between his status as a taxpayer and the challenged government action.”

¶ 12 (citing Barber, 196 P.3d at 246).

The Hickenlooper Court also relied on Brotman, in part, for its analysis. That

court observed that “[a]bsent the requisite nexus between the landowner’s status

as a taxpayer and the challenged sale of land, [it] determined that the landowner did

not have taxpayer standing.” ¶ 13. Turning to the case before it, the Court noted

that the plaintiffs did “not assert any injury based on an unlawful expenditure of
their taxpayer money, nor [did] they allege that their tax dollars were being used in

an unconstitutional manner.” ¶ 14. As such, the Court held that they had not

alleged an injury sufficient to establish taxpayer standing. ¶ 15.

In 2018, this Court again reaffirmed the nexus requirement, stating that it

has “established that a plaintiff-taxpayer will have taxpayer standing when the

plaintiff ‘demonstrates a clear nexus between his status as a taxpayer and the
challenged government action.’” Colo. Union of Taxpayers Found. v. City of Aspen,

2018 CO 36, ¶ 11 (quoting Hickenlooper, ¶ 12). The Court found that two of the

foundation’s members were residents of the town and had paid the challenged bag

charge.1 As a result, those two members had taxpayer standing, and the foundation

accordingly satisfied a portion of the associational standing test. Id.

The next year this Court addressed taxpayer standing again in Reeves-Toney
v. School District No. 1 in City and County of Denver, 2019 CO 40. The Court again

1
The Colorado Union of Taxpayers Foundation is also a petitioner here.
7
confirmed that the Wimberly test applies in the taxpayer standing context because

“the standing requirement distinguishes ‘those particularly injured by …

government action,’ who may present their controversy for resolution by the

courts, from members of the general public, whose interests are more remote and

who ‘must address their grievances against the government through the political

process.’” ¶ 22 (quoting Barber, 196 P.3d at 254–55 (Eid, J. concurring in the

judgment)). The Court noted that it had “recently clarified that to meet the injury-
in-fact requirement, a plaintiff relying on her status as a taxpayer to confer standing

must demonstrate ‘a clear nexus between her status as a taxpayer and the

challenged government action.’” ¶ 23 (quoting Hickenlooper, ¶ 12).

While Petitioners correctly quote Barber, they disregard the subsequent 13

years of caselaw that put Barber in context, and that develop taxpayer standing.

The court of appeals did not make the same error, and it correctly articulated this
Court’s standing precedents.

B. The court of appeals correctly applied this Court’s

precedent to the arguments and facts presented by
Petitioners.

The court of appeals also did not depart in its application of these tests to the

facts or arguments presented to it. The court analyzed each of Petitioners’ three

arguments in turn: (1) that they had taxpayer standing, (2) that they had individual

standing, and (3) that the foundation plaintiffs had associational standing. Op. ¶ 11.

Petitioners only challenge the court’s decision about taxpayer standing. Pet. 5.
8
Notably absent from Petitioners’ briefing below was any assertion, argument, facts,

or citation to law that the court of appeals should have applied a different standing

test—or different facts—in analyzing Petitioners’ different claims. Rather,

Petitioners make one set of arguments for all of their claims together.

Contrary to the assertions in the petition, the court of appeals did not

disregard Barber in analyzing Petitioners’ claims. While acknowledging that

Petitioners relied heavily on the case, the division also observed that this Court
“requires a plaintiff to ‘demonstrate a clear nexus between his status as a taxpayer

and the challenged government action’ to satisfy the injury-in-fact requirement.”

Op. ¶¶ 14–15 (citing Hickenlooper, ¶ 12; Hotaling, 275 P.3d at 727). The court noted

that this Court had recently affirmed that requirement, stating that “the interest of

the taxpayer who challenges the constitutionality of government action is her

‘economic interest in having h[er] tax dollars spent in a constitutional manner.’”

¶ 15 (quoting Reeves-Toney, ¶ 23).

Having articulated the taxpayer standing precedent described above, the

court of appeals reviewed the record and concluded that the “unrebutted evidence

is that hospitals, not taxpayers, make the required payments to the programs.” ¶ 17.

Further, “[t]here is no evidence in the record that individual taxpayer dollars are

used by the programs in any way.” Id. The court concluded that “under the

teachings of Hickenlooper and Reeves-Toney, there is no nexus between the member

[Petitioner]’s taxpayer dollars and the hospital programs.” Id. While the court

9
acknowledged that TABOR provided the legally protected interest, it also

concluded that Petitioners had failed to show that they had suffered any injury.

¶ 19. The court thus concluded that because “there is no nexus between the

member [Petitioner]s’ taxpayer dollars and the constitutional violations that they

allege, the member [Petitioner]s do not have taxpayer standing.” ¶ 21.

In order “‘to satisfy the injury-in-fact requirement, … the plaintiff must

demonstrate a clear nexus between his status as a taxpayer and the challenged
government action.’” Reeves-Toney, ¶ 14 (quoting Hickenlooper, ¶ 12) (emphasis

added). It was Petitioners’ obligation to prove the clear nexus between their status

as taxpayers and the government action, yet they did not do so. They relied almost

exclusively on the idea that Barber allowed them to merely allege a constitutional

violation with nothing more. Despite a full and fair opportunity to develop their

arguments and evidence, they failed to establish individual injury or a nexus

between themselves and the challenged government programs.

Petitioners failed to show a nexus between themselves and the challenged

programs. Petitioners are not fee paying hospitals, and they simply failed to

demonstrate that they have standing to bring their claims. Their petition should

similarly fail.

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II. Petitioners ask this Court to engage in factual error correction without
even a citation to the record that would show any error occurred.

Petitioners next ask this Court to engage in factual error correction, arguing

that the court of appeals misunderstood a key fact in their favor. Pet. 8. Petitioners

argue that they must be correct that the hospital programs used their state tax

dollars due to the connection between the hospital programs and Medicaid because

“[t]hat is how Medicaid works.” Id.

Notably, Petitioners made the same argument below, and the court of

appeals found that this same assertion was “made without a citation to the record,
as required by C.A.R. 28(e), and it finds no support in the record.” Op. ¶ 18.

Instead, the court of appeals found that “there is significant, unrebutted evidence

in the record—including annual financial reports and uncontroverted deposition

testimony by Department officials—demonstrating the opposite: no taxpayer funds

were used by the programs, including no comingling of taxpayer dollars with the

hospital payments.” Id.

What is conspicuously absent in the Petition is, again, any citation to the

record revealing that the court of appeals was wrong. The district court and the

court of appeals correctly observed that the unrebutted evidence in the record

simply does not support Petitioners’ position. The “annual financial reports and

uncontroverted deposition testimony by Department officials” show that fee funds

are not mixed with state taxpayer funds, and that the programs did not use taxpayer

funds. Id. This Court does not primarily engage in factual error correction, but
11
here, Petitioners have not even shown that they could prevail if the Court deviated

from its usual practice. The record supports the court of appeals opinion, and

Petitioners have not and cannot demonstrate otherwise. Certiorari should not be

granted on this ground.

III. Petitioners waived the other issues in the petition by failing to raise or
fully develop them in the court of appeals.

Petitioners next claim that the court of appeals erred by failing to conduct a

separate standing analysis for each of their different claims. But Petitioners never

made this argument to the court of appeals. The tests for taxpayer, individual, and
associational standing are not different for the different claims. But Petitioners

failed to develop evidence or arguments that the tests would apply differently to the

facts of the different claims. Petitioners’ strategy was to stand on language from
Barber and assert that they had taxpayer standing based solely on their allegations.

They did so despite 13 years of caselaw reiterating that a taxpayer must establish a

nexus to the conduct it challenges. Petitioners’ strategic choices deprived the court

of appeals of the opportunity to address the alternate theories they raise here for

the first time. This Court should decline to entertain this issue.

“Our judicial system depends upon the orderly presentation and

preservation of issues.” Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm,

L.L.C., 2012 CO 61, ¶ 18 (citing Colo. Permanente Med. Group, P.C. v. Evans, 926

P.2d 1218, 1228–29 (Colo. 1996); City & Cty. of Denver v. Qwest Corp., 18 P.3d 748,
12
760 (Colo. 2001)). It is thus “axiomatic that issues not raised in or decided by a

lower court will not be addressed for the first time on appeal.” People v. Salazar,

964 P.2d 502, 507 (Colo. 1998) (citing Colby v. Progressive Cas. Ins. Co., 928 P.2d

1298, 1301 (Colo. 1996); Boatright v. Derr, 919 P.2d 221, 227 (Colo. 1996)). A

“basic principle of appellate jurisprudence is that arguments not advanced on

appeal are generally deemed waived.” Moody v. People, 159 P.3d 611, 614 (Colo.

2007) (citing Salazar, 964 P.2d at 507).

Thus, a party can waive an issue—even an issue such as standing—by failing

to address it in briefings or in arguments. Id. (citing People v. Hearty, 644 P.2d 302,

311–12 (Colo. 1982); United States v. Ford, 525 F.2d 1308, 1310 (10th Cir. 1975)).

This “self-restraint is derived from the contours of our adversarial system, in

which ‘appellate courts do not sit as self-directed boards of legal inquiry and

research, but essentially as arbiters of legal questions presented and argued by the
parties before them.’” Id. (quoting Rose v. United States, 629 A.2d 526, 536–37

(D.C. 1993)). This Court will decline to hear even important issues if those issues

are not properly before the Court. Colo. Permanente Med. Group, 926 P.2d at 1229.

This rule covers issues that the parties did not argue before the court of appeals.

Id.; see also Am. Fam. Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 326 (Colo. 2009)

(Petitioner’s “argument that allowing Salg to testify constitutes reversible error

regardless of a proper objection at trial was not argued to the court of appeals and

was therefore not preserved for review.”); Sunahara v. State Farm Mut. Auto. Ins.

13
Co., 2012 CO 30M, ¶ 38 n.2 (Bender, J. dissenting) (“although [Petitioner] briefed

this issue before us and it was arguably included within the second issue for which

we granted certiorari, this issue was not properly raised before the court of appeals

and thus was not preserved for our review.”).

Before this Court, Petitioners argue that the court of appeals erred by not

addressing “these separate standing questions.” Pet. 10. Notably, in their

Answer-Reply Brief there is no mention of any “separate standing questions,” nor

is there any argument, citation, or record support of the same. Petitioners made

one argument for each type of standing—one argument that necessarily

encompassed all of its claims.

Indeed, Petitioners argued generally that they have taxpayer standing, that

they have individual standing because the individual members had an economic

injury, and the foundations argued that they had associational standing. In the
entire standing section of their brief, they refer to their claims only one time,

stating that “it is undisputed that [Petitioners] raise constitutional challenges to the

lawfulness of state revenues and expenditures under TABOR, the single-subject

requirement, and the excess state revenues cap.” Appellants’ Ans.-Reply Br. 4.

Far from arguing to the court of appeals that there was a different standing

analysis for some claims than other claims, Petitioners only argued one theory. The

court of appeals rejected that theory because (1) Petitioners failed to demonstrate

that they had a nexus to the conduct they challenged, (2) the record does not

14
support their theory of economic injury, and (3) they had failed to show harm to

members that would justify associational standing.

Nor is there any suggestion the court “departed from the accepted and usual

course of judicial proceedings.” C.A.R. 49(d). To the contrary, the court of appeals

fairly addressed the arguments made by Petitioners in support of standing.

Petitioners chose to advance one argument for standing—which applied to all of

their claims. The court of appeals addressed the actual arguments presented to it. If
Petitioners believe that there is a different analysis, or different facts, that applied

to different claims, they should have made those arguments, and should have

allowed the court of appeals to address them. Having failed to make the arguments

below, they have waived them here. This Court should not grant certiorari on this

issue.

CONCLUSION

Because the petition fails to show the special and important reasons

necessary to invoke this Court’s review, the State Defendants ask the Court to

deny the petition.

15
Respectfully submitted this 28th day of January, 2021.

PHILIP J. WEISER
Attorney General

s/ W. Eric Kuhn
W. ERIC KUHN, 38083*
Senior Assistant Attorney General
JENNIFER L. WEAVER, 28882*
First Assistant Attorney General
Health Care Unit
State Services Section
Attorneys for State Defendants
*Counsel of Record

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 CERTIFICATE OF SERVICE
I certify that I have duly served the foregoing STATE DEFENDANTS’

OPPOSITION BRIEF TO PETITION FOR WRIT OF CERTIORARI upon the

following counsel electronically through the Colorado Courts E-Filing System

(CCE) and/or electronic mail this 28th day of January, 2021, at Denver, Colorado,

as follows:

via email via CCE

John J. Vecchione Sean R. Gallagher

Lee A Steven Bennett L. Cohen
R. James Valvo, III 1401 Lawrence Street
Cause of Action Institute Suite 2300
1875 Eye Street NW, Suite 800 Denver, CO 80202
Washington, DC 20006 [email protected]
[email protected] [email protected]
[email protected]
[email protected] Counsel for Appellee/Intervenor

via CCE

William M. Banta
10631 East Crestline Avenue
Englewood, CO 80111
[email protected]

Counsel for Appellants/Cross-Appellees

s/ Leslie Bostwick
Leslie Bostwick

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