C.K. v. People, 2017 CO 111

Moffat County Department of Social Services removed L.K. and filed a dependency and neglect petition; C.K. (parent) served discovery; C.K. moved to compel and sought attorney’s fees under C.R.C.P. 37 for deficient responses.
The trial court awarded $400 in attorney’s fees pursuant to C.R.C.P. 37; the order did not address sovereign immunity.
The court of appeals reversed the fee award, holding sovereign immunity barred awarding attorney’s fees against a public entity, relying on federal precedent requiring an explicit waiver.
The Supreme Court granted certiorari limited to whether sovereign immunity bars attorney’s fees against a public entity under C.R.C.P. 37.
The Supreme Court concluded Colorado sovereign immunity is statutory and limited by the Colorado Governmental Immunity Act (CGIA); the CGIA bars tort claims but does not encompass discovery sanctions/attorney’s fees, so sovereign immunity does not bar the award.
The Court remanded for the court of appeals to decide two unresolved questions: (1) whether C.R.C.P. 37 applies in Children’s Code dependency proceedings, and (2) whether C.R.C.P. 37 contains express language authorizing fees against a public entity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sovereign immunity bars awarding attorney’s fees against a public entity under C.R.C.P. 37	Sovereign immunity does not apply; fees recoverable under C.R.C.P. 37	Sovereign immunity bars fee awards absent an express statutory waiver	Held: No — Colorado sovereign immunity is statutory and CGIA does not bar attorney’s fees for discovery sanctions
Whether C.R.C.P. 37 applies to dependency and neglect proceedings (left for remand)	C.R.C.P. 37 applies pursuant to Colo. R. Juvenile P. 1 when rules not governed by Children’s Code	C.R.C.P. 26(a) exempts juvenile proceedings; thus C.R.C.P. 37 does not apply	Not decided; remanded
Whether C.R.C.P. 37 expressly authorizes fees payable from public funds (left for remand)	Rule authorizes sanctions including fees	Rule lacks explicit language authorizing fees against public entities; public-funds awards require clear authorization	Not decided; remanded
Proper scope of comparison to federal sovereign immunity doctrine	Colorado should not adopt federal presumption of immunity; CGIA controls	Court of appeals relied on federal cases requiring explicit waiver	Held: Federal doctrine inapplicable; Colorado presumes liability unless CGIA grants immunity

Loeffler v. Frank, 486 U.S. 549 (discusses federal sovereign immunity presumption)
Lane v. Pena, 518 U.S. 187 (federal waiver of sovereign immunity must be unequivocal)
Edelman v. Jordan, 415 U.S. 651 (Eleventh Amendment state immunity principle)
Evans v. Bd. of Cty. Comm’rs, 482 P.2d 968 (Colo. 1971) (abrogated common-law sovereign immunity in Colorado)
Denny Constr., Inc. v. City & Cty. of Denver, 199 P.3d 742 (Colo. 2009) (Colorado treats government like private entities unless CGIA grants immunity)
Bertrand v. Bd. of Cty. Comm’rs, 872 P.2d 223 (discusses historical sovereign immunity in Colorado)
Springer v. City & Cty. of Denver, 13 P.3d 794 (jurisdictional nature of sovereign immunity)
Gallagher v. Bd. of Trs., 54 P.3d 386 (sovereign immunity divests court of jurisdiction)
Medina v. State, 35 P.3d 443 (CGIA immunity must be strictly construed)
Brown v. Silvern, 141 P.3d 871 (C.R.C.P. 37 sanctions can include attorney’s fees)
In re Graham, 981 F.2d 1135 (10th Cir.) (federal courts reluctant to impose monetary sanctions on government absent explicit authorization)