Colorado’s second-highest court last week agreed a man could proceed with his lawsuit against the town of Paonia for shutting off his water in an alleged violation of his constitutional right to due process.

Erik Gilbertson lives outside the town’s limits, but his home receives water from the municipal system. Paonia allowed the prior owner to self-report their water use for billing purposes, but town staff visited Gilbertson’s property in January 2024 and allegedly discovered the water use was “grossly misrepresented.”

Because the meter was inside Gilbertson’s home, the town sought to install a radio meter that would allow water use to be reported remotely. Gilbertson initially refused and asked for more information in writing. He also allegedly offered to give meter readings to the town via a different method.

On Jan. 29, town administrator Stefen A.B. Wynn told Gilbertson in a letter that Paonia “has reason to believe that the theft of utilities is taking place.” Soon afterward, the town shut off Gilbertson’s water. Gilbertson responded with a letter of his own, saying he would admit to the town’s allegations if they provided evidence within 10 days.

Representing himself, Gilbertson then sued the town and Wynn. He sought reinstatement of his water service, $3,000 per day the water was disconnected, a $6,000 reimbursement for his installation of a cistern and an apology from the town and Wynn, among other things.

The defendants sought to dismiss the lawsuit under the Colorado Governmental Immunity Act, which generally bars liability claims against public entities or employees.

In a May 2024 order, Delta County District Court Judge Mary E. Deganhart agreed governmental immunity blocked Gilbertson’s claims for monetary damages. However, Gilbertson’s claim that Paonia violated his constitutional right to due process by shutting off his water without proper notice or giving him an opportunity to be heard was still viable.

“Plaintiff’s request to compel the Town to reinstate his water service is designed to preserve his right to a basic governmental service that is meaningfully different from a personal harm that usually lies in (a liability claim),” she wrote.

The defendants appealed Deganhart’s decision, arguing all of Gilbertson’s claims were barred by governmental immunity. But a three-judge panel for the Court of Appeals disagreed.

“The ‘nature of the injury’ alleged was thus that the Town shut off Gilbertson’s water without notice, proof of theft, or an opportunity to present his side of the story — that is, without a fair process, and did so in violation of its own ordinances,” wrote Judge David H. Yun in the Jan. 30 opinion.

Because Gilbertson’s due process claim was not subject to governmental immunity, he may litigate that issue after all.

The case is Gilbertson v. Town of Paonia et al.