November 18, 2017

Archives for June 2, 2011

Governor Hickenlooper Vetoes Bill Changing the Child Health Plan Plus Program

On Tuesday, Governor John Hickenlooper vetoed SB 11-213, stating that the bill poses adverse consequences on children’s access to health insurance through the Child Health Plan Plus program. The Governor determined that while the policy intent may be sound, the practical impact the legislation has would negatively impact children in low-income families.

Hickenlooper pledged to work with the Joint Budget Committee and the General Assembly to develop a better approach to changes in the program. He also said that the Department of Health Care Policy and Financing will increase the annual enrollment fee through their regular, rule-making process, and conduct a comprehensive analysis of cost-sharing in the program.

The Department will evaluate changes in the program this summer and fall and deliver recommendations to the Joint Budget Committee on or before November 1, 2011. According to the Governor:

“The focus will be to implement a change that is minimally disruptive, administratively efficient, effective and elegant, and supports the goal of ensuring that kids have access to coverage.”

In recent weeks, many Colorado hospitals, health organizations, and individuals have urged Hickenlooper to veto the bill.

Click here for the Governor’s press release and letter to the General Assembly regarding his veto of SB 11-213 – Concerning enrollee cost-sharing for children enrolled in the children’s basic health plan, and making an appropriation therefor.

Colorado Court of Appeals: Week of May 29, 2011 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and thirty-seven unpublished opinions for the week of May 29, 2011.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Colorado Primary Elections Move from August to June

At the end of last week, Governor John Hickenlooper signed SB 11-189 into law, moving the Primary date for future elections from the second Tuesday in August to the last Tuesday in June. Next year, voters will witness the shift when the Primary falls on June 26, 2012.

In 2009, Congress passed legislation mandating that states mail ballots to overseas voters forty-five days ahead of the election. Colorado’s late Primary and recount provisions created tight timelines for county clerks to meet the federal mandate. During the 2010 election, some counties were forced to send ballots created on a word processor because the actual ballots weren’t yet available. Both political parties supported the legislation in order to give voters more time to consider candidates during the general election.

Candidates considering a campaign in 2012 will need to prepare for the change in election timetables. Candidates going through the party nomination process should plan for a caucus date next year of March 6 instead of March 20, 2012. Candidates collecting signatures will need to submit their petitions on April 2 instead of May 31, 2012.

Click here to read the full press release from the Secretary of State’s office concerning SB 11-189 – Concerning the adjustment of certain dates related to the administration of elections in order to comply with the federal “Military and Overseas Voter Empowerment (MOVE) Act” but excluding the adjustment of any dates related to voter registration.

Legislation to Protect Businesses from ID Theft on Secretary of State Websites Becomes Law

At the end of the last week, Governor Hickenlooper signed HB 11-1095 into law. The legislation was sponsored by Rep. B.J. Nikkel and Sen. Kevin Lundberg, and will allow the Secretary of State’s office to implement a password protected business filing system.

The password protection system will help prevent identity thieves from changing information on the Secretary of State’s website. A recent tactic by identity thieves is to target businesses throughout the country by posing as agents of companies, illegally manipulating data on secretaries of state websites. Once they establish some legitimacy, they apply for credit using the company’s good name and go on a spending spree, forcing businesses to rebuild their credit history.

Click here to read the full press release from the Secretary of State’s office concerning HB 11-1095 – Concerning security of the information filed on behalf of an entity with the secretary of state’s on-line business filing system, and making an appropriation therefor.

Tenth Circuit: Privity with Citizens of Wyoming in an Administrative Hearing Extends to Those Who Represent Their Interests, Allowing for Issue Preclusion

The Tenth Circuit Court of Appeals issued its opinion in Sierra Club v. Two Elk Generation Partners, LP on Tuesday, May 31, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner alleges that Respondents are attempting to build a coal-fired power plant with an invalid Prevention of Significant Deterioration (PSD) permit in violation of the Clean Air Act (CAA). The district court granted Respondents’ motion to dismiss, holding that Petitioner’s suit was barred by issue preclusion. Petitioner claims that the district court erred because its citizen suit cannot be barred by issue preclusion because they was not a party to the administrative proceedings and, therefore, there was no privity, and that no disputed issues of fact were resolved in an adversarial proceeding.

However, the Court disagreed with Petitioner’s contentions. The Court determined that two prior orders from state and federal courts precluded the issues of fact raised by Petitioners regarding the commencement of and continuing construction by Respondents on the power plant. Privity was also found to exist between the Department of Environmental Quality, which issued the permit, and the citizens of Wyoming during hearings on the matter, under the doctrine of parens patriae; as such, privity extends to Petitioners, who represent the interests of the citizens of Wyoming.

Tenth Circuit: Purpose of Federal Tort Claims Act Is to Protect Federal Employees, Not the Government, from Tort Liability

The Tenth Circuit Court of Appeals issued its opinion in Fowler v. United States on Tuesday, May 31, 2011.

The Tenth Circuit reversed the district court’s decision. Petitioner appeals the district court’s determination that the United States was entitled to summary judgment on a tort action he filed against the United States and an employee of the U.S. Air Force. The employee was on duty when his car collided with Petitioner and his motorcycle. The district court granted summary judgment for both the United States and the employee under the Federal Tort Claims/Westfall Act, which “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.”

However, the Court determined that the district court’s Westfall decision regarding the employee did not moot Petitioner’s appeal against the government. There is a genuine issue of material fact as to whether the employee was within the scope of his employment during the accident, and therefore summary judgment in favor of the United States was improper as a matter of law. Additionally, the district court’s Westfall determination did not dismiss the United States from the action; the “purpose and effect of the Westfall Act is to protect federal employees, not the federal government. The effect of the district court’s Westfall determination was to deny [Petitioner]’s request for immunity, not to dismiss the United States from this action.” Accordingly the United States remains a party to the litigation, allowing the Court to find that the grant of summary judgment is not moot.

Tenth Circuit: Omissions of Gross Income in Partnership Tax Returns Trigger Six-Year Limitations Period for IRS Adjustments

The Tenth Circuit Court of Appeals issued its opinion in Salman Ranch, Ltd. v. Comm’r of Internal Revenue on Tuesday, May 31, 2011.

The Tenth Circuit reversed the tax court’s decision. Petitioner Commissioner of Internal Revenue appeals the a decision of the tax court granting summary judgment in favor of Respondents; the court held that the IRS’s administrative adjustments of the Respondent’s 2001 and 2002 tax returns were barred by the three-year limitations period in I.R.C. § 6501(a). However, the Court disagreed and concluded that the IRS’s adjustments were timely under the six-year limitations period in I.R.C. § 6501(e)(1)(A). Respondent’s “alleged overstatement of basis constitutes an ‘omission of gross income’ for purposes of triggering the six-year limitations period in I.R.C. § 6501(e)(1)(A). Because the 2001 and 2002 adjustments were issued within that six-year limitations period, they were improperly dismissed by the tax court.

Colorado Supreme Court: Defendant Not in Custody for Miranda Purposes During Initial Police Interview on Porch of Girlfriend’s Home

The Colorado Supreme Court issued its opinion in People v. Klinck, Jr. on May 31, 2011.

Custodial Interrogation—Miranda—Voluntariness of Statements.

The Supreme Court held that Wayne Klinck was not in custody for Miranda purposes during his initial interview with police on the porch of his girlfriend’s home. The trial court erred in suppressing the statements made during this interview.

The Court also found that that Klinck’s statements to detectives during the five-hour jailhouse interrogation were voluntary. Despite their suppression from the prosecution’s case-in-chief, the statements are admissible at trial for impeachment purposes.

Summary and full case available here.

Colorado Supreme Court: CJI-Civ. 15:4 Accurately States Colorado Law by Neither Imposing a Subjective Standard of Care on Physicians Nor Immunizing them from Liability

The Colorado Supreme Court issued its opinion in Day v. Johnson on May 31, 2011.

Jury Instructions—Medical Malpractice—Exercise of Judgment.

The Supreme Court affirmed the court of appeals’ judgment. The Court held that the portion of Colorado Jury Instruction—Civil 15:4 (2009) stating that “[a]n exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent” accurately states Colorado law. The instruction does not impose a subjective standard of care on a physician whose exercise of judgment results in an unsuccessful outcome or does not immunize the physician from liability. Rather, it informs a jury that a bad outcome that results from a physician’s exercise of judgment does not by itself constitute negligence. The jury must look to the elemental negligence instruction and the objective standard of care instruction to determine whether the defendant was negligent.

Summary and full case available here.

Colorado Supreme Court: Intensive Supervision Program Escape Statute Disallowing Parolee from Leaving Established Residence Area Not Unconstitutional

The Colorado Supreme Court issued its opinion in Townsend v. People on May 31, 2011.

Criminal Law—Escape.

The Supreme Court upheld the judgment of the court of appeals, affirming the conviction of petitioner Terry Townsend for escape by means of failing to remain within the extended terms of his confinement as established under his participation in an intensive supervision program (ISP) as a condition of his parole. The Court concluded that the trial court’s jury instructions did not include any reversible error and that the ISP escape statute is not unconstitutional either as applied to Townsend or generally under the separation of powers and non-delegation doctrines of the Colorado Constitution.

Summary and full case available here.

Colorado Supreme Court: Continued Employment of At-Will Employee May Constitute Adequate Consideration for Noncompetition Agreement

The Colorado Supreme Court issued its opinion in Lucht’s Concrete Pumping, Inc. v. Horner on May 31, 2011.

Continuing Employment of an At-Will Employee—Noncompetition Agreement.

The Supreme Court reversed the court of appeals’ decision finding that continued employment does not constitute adequate consideration for a noncompetition agreement. Forbearance of a legal right may serve as consideration. When an employer forbears from terminating an existing at-will employee, the employer is forbearing from exercising a legal right. Thus, continued employment of an at-will employee may constitute adequate consideration for a noncompetition agreement.

Summary and full case available here.

Colorado Supreme Court: Water Court’s Judgment and Decree Upheld Regarding Determination of Historical Consumption Use of Burlington-FRICO Water Rights

The Colorado Supreme Court issued its opinion in Burlington Ditch, Reservoir and Land Co. v. Metro Wastewater Reclamation Dist. on May 31, 2011.

Determination of Historical Consumptive Use of Water Rights—CRS § 37-92-305—Unlawful Enlargement of Water Rights—“One-Fill” Rule—Preclusive Effect of Prior Water Court Orders and Decrees—New Structures and Points of Diversion.

Appellants Burlington Ditch, Reservoir and Land Company (Burlington), Farmers Reservoir and Irrigation Company (FRICO), United Water and Sanitation District (United), Henrylyn Irrigation District (Henrylyn), and East Cherry Creek Valley Water and Sanitation District (ECCV) challenged the order and decree of the water court regarding its determination of historical consumptive use of water rights, the effect of prior decrees and new structures related to the Burlington Canal, the application of the “one-fill” rule, and the impact of these decisions on appellants’ senior rights to use the waters of the South Platte River.

This case arose from two applications seeking changes in points of diversion and storage of water rights, as well as changes from irrigation to municipal use for Burlington and FRICO water rights with 1885, 1908, and 1909 priority dates. These changes were precipitated by the United–ECCV Water Supply Project, aimed at providing a renewable source of water to replace Denver Basin groundwater on which ECCV previously relied.

To prevent an unlawful enlargement of the Burlington–FRICO water rights, the water court limited appellants’ 1885 Burlington direct flow water right to 200 cubic feet per second, historically diverted and used for irrigation above Barr Lake. Likewise, the 1885 Burlington storage right was limited to annual average reservoir releases of 5,456 acre-feet. The water court further determined that seepage gains into the Beebe Canal, water collected through the Barr Lake toe drains, and diversions at the Metro Pumps could not be given credit in the calculation of historical consumptive use. The court determined that historical releases from Barr Lake, rather than a pro rata share of the one-fill rule,constitute the proper measure of storage rights. The water court concluded that its system-wide analysis of historical consumptive use was not precluded by the orders and decrees issued in FRICO Case No. 54658 and Thornton Case No. 87CW107. The court imposed conditions to prevent injury to other water rights by the heretofore undecreed diversions via the Globeville Project. The Supreme Court upheld the water court‘s judgment and decree.

Summary and full case available here.