May 23, 2018

Archives for November 5, 2010

Judge W. Michael Porter of Baca County Voted Out

As reported by Law Week Colorado, Fifteenth Judicial District Judge W. Michael Porter was not retained in Tuesday’s retention election by a slim margin. He received a unanimous recommendation in favor of retention by the district judicial performance commission.

With only military and overseas ballots to be counted as of Thursday, Judge Porter has received 50.8% of votes against his retention. Judge Porter had been retained in three previous elections since his appointment to the court in 1995. He will serve out his term on the bench, which ends on January 11, 2011.

The Fifteenth Judicial District nominating commission will convene to recommend replacements to outgoing Governor Bill Ritter, who will appoint Judge Porter’s replacement. The nominating commission is comprised of four Republicans and three Democrats.

Tenth Circuit: Opinions, 11/4/10

New Leaders of the Colorado Legislature Selected to Reflect Shift in Power

As reported by State Bill Colorado, Rep. Frank McNulty, R-Highlands Ranch, won approval by acclimation as the speaker of the Colorado House today. McNulty is credited as being the architect of the GOP’s narrow takeover of the House in Tuesday’s elections.

Sal Pace, D-Pueblo, accepted the Democratic caucus’ vote to make him the next House minority leader, beating out Andy Kerr, D-Lakewood.

Amy Stephens, R-Monument, was selected as the Republicans’ House majority leader.

House Republicans
House Speaker: Frank McNulty (uncontested)
Majority Leader: Amy Stephens (uncontested)
Assistant Majority Leader: Mark Waller (ucontested)
Majority Whip: B.J. Nikkel (uncontested)
Caucus Chair: Carole Murray (uncontested)

House Democrats
Minority Leader: Sal Pace (over Andy Kerr)
Assistant Minority Leader: Nancy Todd (over Beth McCann)
Whip: Claire Levy (over Daniel Kagan)
Deputy Whip: Dickie Lee Hullinghorst (over Matt Jones, who withdrew)
Caucus Chair: Lois Court (uncontested)

Senate Democrats
President: Brandon Shaffer (uncontested)
Majority Leader: John Morse (uncontested)
Assistant Majority Leader Lois Tochtrop (uncontested)
Caucus Chair: Morgan Carroll (uncontested)
JBC: Mary Hodge and Pat Steadman

Senate Republicans
Minority Leader: Mike Kopp (uncontested)
Assistant Minority Leader: Bill Cadman (uncontested)
Whip: Scott Renfroe (uncontested)
Caucus Chair: Mark Scheffel (uncontested)

Eighth District Court Judge Rex A. Shaw to Retire in 2011

Judge Rex A. Shaw will retire from the Jackson County Court bench, part of the Eighth Judicial District in Colorado, on February 9, 2011.

The Eighth Judicial District Nominating Commission will convene on Monday, December 6, 2010 to interview and select nominees for appointment by the governor to the office of county judge for Jackson County.

Information regarding eligibility and applying to fill the vacancy can be found in the Colorado Judicial Branch press release.

Angry over Murder Trial, Northern Colorado Voters Oust Two State Judges

The Denver Post and the Fort Collins Coloradoan reported Wednesday that yesterday’s election may have cost two Eighth Judicial District Court judges, from Larimer and Jackson counties, their positions. Results suggest that voters have chosen not to retain Judges Terry Gilmore and Jolene Blair.

Both judges were the prosecutors in the Timothy Masters murder case in 1999, in which he was sentenced to life without parole. Masters’ conviction was overturned in 2008, and settled with Fort Collins and Larimer County for $10 million.

Judges Gilmore and Blair were appointed to the bench in 2001 by former Governor Bill Owens. This was their first retention election since Masters’ release and being censured by an arm of the Colorado Supreme Court for failing in their duties as prosecutors in the case, though not deliberately.

The judges will serve out their current term until January 11, 2011, allowing a smooth transition for cases currently on their docket.

Chief Justice Revises Payment and Appointment Procedures for Counsel and Other Court Officers

Colorado Supreme Court Outgoing Chief Justice Mary J. Mullarkey has signed into effect two amended Chief Justice Directives, which were adopted and effective as of November 1, 2010.

CJD 04-04 – “Appointment of State-Funded Counsel in Criminal and Juvenile Delinquency Cases and for Contempt of Court” (amended 11/10)

CJD 04-05 – “Appointment and Payment Procedures for Court Appointed Counsel Pursuant to Titles 12, 13, 14, 15, 19 (Dependency and Neglect Only), 22, 27, and Guardians ad Litem, Child and Family Investigators and Court Visitors Paid by the State Court Administrator’s Office” (amended 11/10)

Fifth Judicial District Now Home to Colorado’s Newest Drug Court

In October, Summit County launched Colorado’s latest Drug Court, a problem-solving court “focused on treating substance abuse among qualifying criminal offenders.” The court will also serve the counties of Clear Creek and Eagle within the Fifth Judicial District. The area has seen a high percentage of criminal cases relating to drug and alcohol addiction. Instead of simply sending such offenders to prison, the new court will seek to help treat the addiction and reduce recidivism.

The new Drug Court is one of over fifty such problem-solving courts in Colorado. Participants are screened and approved through a multidisciplinary process, and engage in rehabilitation through “monitoring, customized treatment programs, intensive supervision and regular, in-person court review hearings.” Additionally, participants, capped at 15 for the court’s initial client list, must undergo counseling and submit to random and frequent drug and alcohol testing.

Rehabilitation and financial statistics from the drug courts are also impressive and further bolster the program. “Seventy-five percent of drug court graduates remain arrest-free at least two years after leaving the program, and every dollar invested in drug courts results in a net savings of $3.36 that would have otherwise been spent on criminal justice costs.

More information about drug courts can be found here.

The Colorado Judicial Branch press release can be found here.

Colorado Supreme Court: Using Another’s Social Security Number to Receive Auto Loan, When Number Not Required, is Not Assuming a False Identity

The Colorado Supreme Court issued its opinion in Montes-Rodriguez v. People on October 25, 2010.

Criminal Impersonation Statute—False or Fictitious Identity or Capacity.

The Supreme Court reversed defendant’s conviction under the criminal impersonation statute, CRS § 18-5-113(1)(e), because defendant did not assume a “false or fictitious identity or capacity.” The Court held that one assumes a false identity by holding one’s self out to a third party as being another person, and that one assumes a false capacity when he or she assumes a false legal qualification, power, fitness, or role. Because defendant did not hold himself out to be another person when he used another person’s social security number to obtain an automobile loan, and the prosecution presented no evidence that a social security number is a legal requirement to obtain a loan, the Court reversed defendant’s conviction. The case was remanded to the court of appeals to return to the trial court to enter a judgment of acquittal.

Summary and full case available here.

Colorado Supreme Court: Allocation of Parental Responsibilities Required Upon Motion by Either Party

The Colorado Supreme Court issued its opinion in In re the Marriage of Hall on October 25, 2010.

CRS § 14-10-127—Allocation of Parental Responsibilities—Mental Health Evaluation—Relocation Out of State.

The Supreme Court held that the trial court abused its discretion when it denied petitioner’s motion for an allocation of parental responsibilities (APR) evaluation by a licensed mental health professional under CRS § 14-10-127(1)(a)(I). The statute mandates that in all APR proceedings, a trial court must grant a request for evaluation on the motion of either party, unless it finds that the motion was made to delay proceedings. Because a party’s proposed relocation out of state involves the determination of parental decision-making and parental time, a trial court must order an APR evaluation requested by either party when one party seeks to relocate out of state with the child. The rule to show cause was made absolute and the case was remanded to the trial court.

Summary and full case available here.

State Judicial Issues New and Revised Forms, Including Probate, Domestic, Juvenile and Criminal

The Colorado State Judicial Branch has issued new or revised forms and instructions across a variety of practice areas, including: county/district civil, criminal, domestic/family, juvenile, and probate. The new forms went into effect between September and November (as noted below), and practitioners should begin using them immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download templates from State Judicial’s individual forms pages, or below.

County Civil / District Civil

  • JDF 122 – “Instructions for Issuance of Contempt Citation” (revised 11/10)
  • JDF 123 – “Motion and Affidavit for Citation for Contempt of Court” (revised 11/10)
  • JDF 137 – “Instructions for Filing a Foreign Judgment” (9/10)
  • JDF 138 – “Judgment Creditor Affidavit in Support of Foreign Judgment” (9/10)
  • JDF 139 – “Notice of Filing of Foreign Judgment” (9/10)


  • JDF 460I – “Instructions to Discontinue Sex Offender Registration – Colorado and Non-Colorado Convictions” (revised 10/10)


  • JDF 205 – “Motion to File Without Payment and Supporting Financial Affidavit” (revised 9/10)
  • JDF 206 – “Finding and Order Concerning Payment of Fees” (revised 9/10)
  • JDF 1411 – Instructions to File a Motion or Stipulation to Modify Custody or Decision-Making Responsibility” (10/10)
  • JDF 1418I – “Instructions to File a Motion Concerning Parenting Time Disputes” (revised 9/10)
  • JDF 1418 – “Verified Motion Concerning Parenting Time Disputes” (revised 9/10)
  • JDF 1419 – “Order re: Parenting Time” (revised 9/10)
  • JDF 1603 – “Decree of Declaration of Invalidity of Marriage” (revised 9/10)
  • JDF 1800 – “Instructions for Filing Motions to Enforce Orders” (revised 9/10)
  • JDF 1817 – “Order to Issue Citation & Citation to Show Cause” (revised 10/10)

Filing Fees

  • JDF 203 – “Certification of Determination of Indigency” (revised 9/10)
  • JDF 205 – “Motion to File Without Payment and Supporting Financial Affidavit” (revised 9/10)
  • JDF 206 – “Finding and Order Concerning Payment of Fees” (revised 9/10)


  • JDF 476 – “Instructions to Discontinue Sex Offender Registration Juvenile – Colorado and Non-Colorado Convictions” (revised 10/10)
  • JDF 488 – “Final Order of Relinquishment” (revised 10/10)
  • JDF 556 – “Motion to Transfer Venue – Juvenile Dependency and Neglect” (revised 9/10)
  • JDF 557 – “Order to Change Venue – Juvenile Dependency and Neglect” (revised 9/10)


  • JDF 5 – “Authorization to Pay Law Firm for Attorney Appointments” (revised 9/10)


  • JDF 731 – “Receipt and Release” (revised 9/10)
  • JDF 823 – “Instructions for Appointment of Guardian – Minor” (revised 9/10)
  • JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 9/10)
  • JDF 860 – “Instructions for Appointment of Conservator – Minor” (revised 9/10)
  • JDF 875 – “Instructions for Appointment of Conservator – Adult” (revised 10/10)
  • JDF 912 – “Renunciation and/or Nomination of Personal Representative” (revised 9/10)

Colorado Court of Appeals: Court Has Discretion to Award Attorney Fees Even When Claim Not Found to be Frivolous

The Colorado Court of Appeals issued its opinion in Carruthers v. Carrier Access Corporation on October 28, 2010.

Colorado Wage Act—Attorney Fees—Frivolous—Discretion.

Plaintiff appealed the trial court’s order directing him to pay attorney fees to prevailing defendants, Carrier Access Corporation and Turin Networks, Inc. (collectively, Carrier). The order was affirmed.

Plaintiff sued Carrier, claiming that Carrier violated the Colorado Wage Claim Act (Wage Act) by failing to pay him commissions of approximately $210,000, owed under a written agreement when Carrier terminated his employment. At trial, the court directed a verdict in Carrier’s favor on plaintiff’s claim. The court further ordered plaintiff to pay attorney fees to Carrier pursuant CRS § 8-4-110(1) of the Wage Act.

On appeal, plaintiff contended that the trial court erred in awarding attorney fees to Carrier because it failed to find that plaintiff’s claim was frivolous. The Court of Appeals disagreed. The plain language of § 8-4-110(1) allows, but does not require, a court to award attorney fees to a prevailing employer in the exercise of its discretion, even where the employee’s Wage Act claim was not frivolous.

Plaintiff also contended that the amount of fees awarded by the court ($34,000) was unreasonable under the circumstances, and that the district court did not adequately explain the basis of the award. The Court found that the district court did not make findings sufficient to permit meaningful appellate review. Therefore, the case was remanded for additional findings on this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on October 28, 2010, can be found here.

Colorado Court of Appeals: A Scrap Partial Vehicle Shell Constitutes a Motor Vehicle Inappropriate for Recycling

The Colorado Court of Appeals issued its opinion in Metal Management West, Inc. v. State of Colorado on September 30, 2010.

Motor Vehicle—CRS § 42-4-2202—Scrap Parts—Recycling—Daily Record—CRS § 42-5-105.

Plaintiff Metal Management West, Inc. appealed the district court’s summary judgment in favor of defendants. The judgment was affirmed in part and reversed in part.

Plaintiff purchased scrap metal, including automobiles, as part of its metal recycling business. Defendants are law enforcement entities charged with enforcing statutes in the jurisdiction within which plaintiff operates its business. Plaintiff’s employee was criminally cited for failing to comply with CRS §§ 42-4-2202 and 42-5-105 after he accepted for recycling “a piece of scrap metal” that defendants considered to be a motor vehicle. Pursuant to C.R.C.P. 57 and 65(a), plaintiff sought a declaratory judgment concerning §§ 42-4-2202 and 42-5-105, as well injunctive relief. The court entered judgment as a matter of law in favor of defendants on all of plaintiff’s claims.

Plaintiff argued that § 42-4-2202 excludes a “scrap partial vehicle shell,” or alternatively, that the statute is unconstitutionally vague on its face or as applied to plaintiff in this case. The Court of Appeals disagreed. The definition of “motor vehicle” in § 42-1-102(58), which controls in the context of the recycling statute, read as a whole, means a motor vehicle that is or was self-propelled. Therefore, a person of common intelligence does not have to guess at the meaning of the term “motor vehicle” and it is not unconstitutionally vague on its face or applied to plaintiff in this case. To hold otherwise would defeat the intent of the statute to deter motor vehicle theft.

Plaintiff also sought a declaratory judgment that § 42-5-105 “contains no requirement that the identification numbers on all ‘motor vehicle equipment, attachments, accessories, or appurtenances’ be recorded as part of the daily record.” The statute requires recording vehicle identification numbers of only motor vehicles themselves. Therefore, this portion of the summary judgment was reversed, and the district court was directed to grant a declaration that § 42-5-105 does not require plaintiff to record a vehicle identification number, as defined in §§ 42-5-101(11), other than for “motor vehicles,” as defined in § 42-5-101(5).

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 30, 2010, can be found here.