The Colorado Supreme Court recently agreed to hear multiple cases implicating a witness’ immunity for making defamatory statements in a school sex assault investigation, whether a university can be sued for closing its campus early in the COVID-19 pandemic, and whether a man should receive a new trial for his numerous securities fraud convictions.

At least three of the seven justices must consent to take up an appeal.

The court narrowly turned down a final case that questioned whether the state’s appellate court accurately applied the justices’ recent decision about what constitutes a “serious bodily injury.”

Immunity for Title IX witnesses

Benjamin Gonzales was a student at Evergreen High School when his classmates, Ashley Hushen and Alexandra Weary, accused him of sexually harassing and assaulting them in 2018. Although Colorado Politics does not normally name alleged crime victims, all of the parties used their full names in the subsequent civil proceedings.

The school performed an investigation pursuant to Title IX, a federal civil rights law, and Gonzales was expelled from school. Prosecutors in Jefferson County brought criminal charges against him for unlawful sexual contact, but a judge found him not guilty.

After the trial, Julie Hushen and Nicole Weary, the mothers of Gonzales’ accusers, sent emails to school personnel arguing against readmitting “this predator,” referring to their daughters as “victims” and claiming Gonzales had a “history of sexual assault.” Subsequently, the school district reopened its Title IX investigation into Gonzales.

Gonzales sued his accusers and their mothers for defamation, prompting the defendants to ask for dismissal under Colorado’s anti-SLAPP law, which stands for “strategic lawsuits against public participation.” The goal of the 2019 law is to quickly dispose of litigation that implicates a person’s First Amendment rights — specifically, the right to free speech and to petition the government.

Last year, a three-judge panel of the Court of Appeals agreed Gonzales’ claims should proceed notwithstanding the anti-SLAPP law. Among other things, the panel concluded the defendants’ statements were not shielded by “absolute immunity,” like a witness in a courtroom, because the Title IX process in Jeffco did not have the key procedural safeguards characteristic of quasi-judicial proceedings.

“Although these procedures may seem adequate at first glance, we conclude that they are insufficient to ensure reliability and fundamental fairness, nor do they allow for adversarial testing of the facts,” wrote Judge Katharine E. Lum. “We question whether any tribunal could adequately assess credibility or perform a truth-seeking function under such circumstances.”

The defendants appealed to the Supreme Court, urging it to interpret the state’s anti-SLAPP law for the first time.

“The holding by the Court of Appeals will have sweeping adverse consequences including, but not limited to, expanding the scope of potential liability for students and parents who report concerns of sexual harassment to school officials,” wrote attorneys for the defendants.

Recognizing that immunity does not exist for false allegations, countered Gonzales’ attorney, will make people “more likely to ensure their reports are accurate and made in good faith.”

The Supreme Court will review whether absolute immunity applies to Title IX investigations.

The case is Hushen et al. v. Gonzales.

COVID campus closure

On behalf of all people who paid student tuition and fees during the spring 2020 semester, Renee Alderman sued Colorado State University, alleging the school breached its contract with students and unjustly enriched itself.

Specifically, she claimed CSU “saved significant sums of money” by curtailing in-person services during the early COVID-19 pandemic, while holding onto payments from students, including approximately $867 in general fees per student.

By 2-1, a three-judge panel of the Court of Appeals allowed the lawsuit to proceed in part. All judges agreed a unique provision in Colorado law, allowing CSU to “temporarily suspend” operations in response to, among other things, “the prevalence of fatal diseases,” authorized the campus closure.

However, Judge David J. Richman, writing for himself and Judge JoAnn L. Vogt, believed the unjust enrichment claim was still viable. Even if CSU had the power to close its campus, “it does not necessarily follow that CSU had the right to retain the tuition and fees that plaintiff had paid pursuant to the contract,” he noted.

Judge Ted C. Tow III disagreed that a second route was open to Alderman for holding CSU liable and indicated he would have sided with the school altogether.

The Colorado Attorney General’s Office, representing CSU, appealed to the Supreme Court and asked it to adopt the dissent’s conclusion. The court agreed to weigh whether the unjust enrichment claim can proceed against the school.

The case is Board of Governors v. Alderman.

Advice of counsel

Douglas County prosecutors charged Kelly James Schnorenberg with more than two dozen counts of securities fraud. Schnorenberg raised in excess of $15 million from investors but failed to disclose that he was barred from selling securities in Colorado, had not paid his earlier investors, carried large debt loads in his companies and had outstanding civil judgments against him, among other things.

Jurors convicted him and he received a prison sentence of 76 years and an order to pay nearly $14 million in restitution.

The Court of Appeals last year vacated seven of Schnorenberg’s convictions for being brought outside the statute of limitations and reversed the remaining convictions based on the trial judge’s error. Former District Court Judge Paul A. King refused to allow Schnorenberg to testify broadly how he allegedly received advice from a lawyer that he did not have to disclose key pieces of information to investors. 

Although Schnorenberg was able to testify narrowly to what guidance he got, King believed the remaining information was impermissible hearsay — out-of-court testimony aimed at proving the truth.

An appellate panel concluded Schnorenberg should have been allowed to speak about the alleged advice, as it could have proved Schnorenberg was not aware he was misrepresenting material facts to investors.

“In other words, this testimony could provide direct evidence from which a jury could conclude that Schnorenberg did not commit securities fraud,” wrote Judge Daniel M. Taubman.

The attorney general’s office appealed to the Supreme Court, arguing no prior securities fraud decision had addressed whether advice of counsel is relevant to proving a defendant’s mental state. The court agreed to review the issue.

The case is People v. Schnorenberg.

Serious bodily injury

Finally, an appeal out of El Paso County fell one vote short.

Jurors in 2019 convicted Roger O. McPherson of multiple offenses after he beat and tortured a 16-year-old girl. He received a sentence of 152 years to life in prison.

One of McPherson’s convictions was for first-degree assault by strangulation, which requires a person to apply pressure that causes serious bodily injury. In 2021, the Supreme Court clarified that serious bodily injury — meaning one with a substantial risk of death or permanent impairment — depends on the actual injury a person causes, not just the risk associated with that type of injury.

The Court of Appeals agreed with McPherson that under the Supreme Court’s clarification, testimony at his trial did not establish the victim’s loss of bladder control and numbness due to being strangled put her at substantial risk of impairment.

“In concluding there was insufficient evidence of a substantial risk of protracted loss or impairment in this case, we do not minimize the victim’s physical injuries, nor the terror she undoubtedly suffered,” wrote Judge Sueanna P. Johnson. “But, under the circumstances of this case, there simply lacked medical testimony to support” the finding of a serious bodily injury.

The attorney general’s office argued to the Supreme Court that the Court of Appeals misapplied the new standard. The effects to the victim were not her actual injury, but allegedly symptoms of the more serious brain injury she was experiencing due to the strangulation.

“Does the victim need to be near death for a jury to find serious bodily injury? If impairing the function of a victim’s organs and extremities is not enough, how long does a victim need to be deprived of oxygen for there to be sufficient evidence of a substantial risk?” wrote Assistant Attorney General Claire V. Collins.

Justices Monica M. Márquez and Carlos A. Samour Jr. indicated they would have accepted the appeal to scrutinize whether the Court of Appeals properly analyzed the victim’s injury, rather than the observed effects of her injury. They also would have reviewed whether the appellate panel viewed the evidence through the correct lens.

The case is People v. McPherson.