December 11, 2017

Archives for June 28, 2011

Finalists Selected to Fill Judgeship in Seventh Judicial District

The Seventh Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the passage of SB 11-028, effective July 1, 2011.

Nominees for the bench are Peter Bogardus, Jr., of Crested Butte, Mary Deganhart, of Ridgway, and Marcus Lock, of Gunnison. All were selected by the commission on June 27, 2011.

Under the Colorado Constitution, Governor Hickenlooper has until July 13 to appoint one of the nominees as district court judge for the Seventh Judicial District, which serves Delta, Gunnison, Hinsdale, Montrose, Ouray, and San Miguel counties.

Comments regarding any of the nominees can be emailed to the Governor’s office.

State Board of Health Amends Rules Regarding Renewal License Fees for Assisted Living Residences

The Colorado State Board of Health has amended the rules that outline the renewal license fees for Assisted Living Residences. The proposed amendment will reduce the bed fee from $56 to $30 for licenses with a renewal date on or after January 1, 2012.

The purpose of the amended rules is to reduce revenue in the Assisted Living Residences cash fund, which has exceeded both the Department of Public Health and Environment projections and spending authority. At the time the fees were raised in 2008, the Department’s standard expense projections included annual cost of living increases for Department personnel which have not occurred for the past several years. In addition, there has been an unexpected increase in the number of new Assisted Living Residences, which generate larger initial license and plan review fees. This trend appears to be continuing, so the reduction in fees has been found appropriate.

A hearing on the amended rules will be held on Wednesday, August 17, 2011 at the Department of Public Health and Environment, Building A, Sabin-Cleere Conference Room, 4300 Cherry Creek Drive South, Denver, Colorado 80246, beginning at 10:00 am.

The Board encourages all interested persons to participate in the hearing by providing written data, views, or comments, or by making oral comments at the hearing.

The Board requests submission of written materials no later than August 3, 2011 to allow the Board sufficient time to review the comments prior to the meeting. Persons wishing to submit written comments or views should submit them following the guidelines provided here.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.

State Board of Health Amends Rules Regarding the Naming of Health Care Entities

The Colorado State Board of Health has amended the rules that outline the criteria regarding licensed health care entity names. The requirement that an entity’s name identify the services for which it is licensed has been eliminated. The license fee has also been lowered for processing an entity’s request to change its name or address. “These changes have been discussed with a consortium of licensed health care entities, which supports the proposal.”

The fee to change the name or address of a health care entity has been lowered from $360 to $75.

The purpose of the proposed amendments is to better reflect the changing face of health care and the anticipated expansion of health care delivery systems under the Affordable Care Act.

A hearing on the amended rules will be held on Wednesday, August 17, 2011 at the Department of Public Health and Environment, Building A, Sabin-Cleere Conference Room, 4300 Cherry Creek Drive South, Denver, Colorado 80246, beginning at 10:00 am.

The Board encourages all interested persons to participate in the hearing by providing written data, views, or comments, or by making oral comments at the hearing.

The Board requests submission of written materials no later than August 3, 2011 to allow the Board sufficient time to review the comments prior to the meeting. Persons wishing to submit written comments or views should submit them following the guidelines provided here.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Governor Hickenlooper Names New Insurance Commissioner

On Monday, June 27, 2011, Governor John Hickenlooper announced that Rep. Jim Riesberg will become the state’s new Commissioner of Insurance. He will resign his seat in the House on June 30 and begin at the Colorado Division of Insurance on July 1.

Riesberg will replace John J. Postolowski, who was appointed as interim insurance commissioner on December 1, 2010. Postolowski will resume his former deputy position once Riesberg takes over.

Riesberg was first elected in 2004 to represent House District 50 (Greeley, Garden City, and Evans) in the Colorado General Assembly. He is currently ranking member of the Health and Environment Committee and a member of the Appropriations Committee.

Riesberg is a Colorado native and has worked for many years at various insurance and human resource companies. He also spent several years in leadership roles with nonprofit organizations specializing in aging, hunger, and housing issues.

The full press release from the Governor’s Office concerning the appointment can be found here.

Colorado Supreme Court: Prosecutor’s Comments Implying that Defendant Has the Burden of Proof Does Not Necessarily Shift the Burden; Courts Must Evaluate the Strength of the Evidence

The Colorado Supreme Court issued its opinion in People v. Santana on June 27, 2011.

Shifting the Burden of Proof—Prosecutorial Questioning and Commenting.

The Supreme Court held that a prosecutor’s comments and questions implying that a defendant has the burden of proof do not necessarily shift the burden of proof. Instead, courts must evaluate the strength of the burden-shifting evidence or comment, considering the degree to which: (1) the prosecutor argued or intended to establish that the defendant bears the burden of proof; (2) the prosecutor’s actions constituted a fair response to the questioning and commenting by defense counsel; and (3) the jury was informed of the defendant’s presumption of innocence and the prosecution’s burden of proof.

The Supreme Court reversed the judgment of the court of appeals, concluding that the prosecutor did not shift the burden of proof by questioning a defense expert about his ability to conduct tests possibly exonerating defendant, because defense counsel first asked similar questions. Further, in light of the whole record, the prosecutor’s questions and comments likely were not meant to shift the burden of proof, but to highlight the strength of the prosecution’s case.

Summary and full case available here.

Colorado Supreme Court: Colorado Not Required to Give Full Faith and Credit to New York Custody Determination for Lack of Exclusive, Continuing Jurisdiction under PKPA

The Colorado Supreme Court issued its opinion in In re the Marriage of Dedie and Springston on June 27, 2011.

Custody Determination—Jurisdiction—Parental Kidnapping Prevention Act.

The Supreme Court held that, because the New York Supreme Court that entered the custody modification determination at issue in this case failed to exercise jurisdiction consistent with the requirements of the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (2010) (PKPA), Colorado is not required to give that custody determination full faith and credit. The PKPA, and Colorado statutes and case law that incorporate the PKPA’s requirements, mandate that to warrant full faith and credit enforcement in a sister state, the state that entered the custody determination must have exercised jurisdiction consistently with the provisions of the PKPA.

In this case, the New York Supreme Court did not have jurisdiction to modify its own initial child custody determination according to New York law, because a New York family court referee previously ruled that New York State no longer had exclusive, continuing jurisdiction over this matter. Consequently, the PKPA does not require Colorado to accord the New York Supreme Court custody modification determination full faith and credit.

Summary and full case available here.

Colorado Supreme Court: Framework that Trial Courts Should Use when Deciding Discovery Requests Implicating the Right to Privacy

The Colorado Supreme Court issued its opinion in In re Cedar Street Venture, LLC v. Judd; Moreland/Manoogian, LLC v. Judd on June 27, 2011.

Discovery—Right to Privacy—Financial Records.

The Supreme Court discussed the framework that trial courts should employ when deciding discovery requests implicating the right to privacy. The party requesting the information must always first prove that the information requested is relevant to the subject of the action. The party opposing the discovery request must show that it has a legitimate expectation that the requested materials or information is confidential and will not be disclosed. If the trial court determines that there is a legitimate expectation of privacy in the materials or information, the requesting party must prove either that disclosure is required to serve a compelling state interest or that there is a compelling need for the information. If the requesting party is successful in proving one of these two elements, it then must also show that the information is not available from other sources. Finally, if the information is available from other sources, the requesting party must prove that it is using the least intrusive means to obtain the information.

The Supreme Court held that the documents requested in this case fall under the umbrella of the right to privacy. The case was remanded to the trial court for analysis under this framework.

Summary and full case available here.

Colorado Supreme Court: Pretrial Ruling Denying “Make My Day” Immunity May Not Be Reviewed on Appeal; Jury Verdict Must Be Appealed as it Subsumes the Pretrial Ruling

The Colorado Supreme Court issued its opinion in Wood v. People on June 27, 2011.

Criminal Law—“Make My Day” Statute.

A jury convicted Wood of manslaughter. On direct appeal, Wood challenged the trial court’s pretrial order denying his motion to dismiss and his request for immunity under the “make my day” statute, CRS § 18-1-704.5. The court of appeals declined to review that issue, holding that such an order is unreviewable on appeal.

The Supreme Court affirmed the judgment of the court of appeals. The Court held that a trial court’s pretrial ruling denying “make my day” immunity under § 18-1-704.5 may not be reviewed on appeal after trial. Such a pretrial ruling does not implicate a trial court’s subject matter jurisdiction, nor is it a final order subject to immediate appeal. A defendant may seek immediate review of such a ruling by invoking the Supreme Court’s original jurisdiction under C.A.R. 21; however, after trial, the jury’s verdict subsumes the trial court’s pretrial ruling, and the defendant’s recourse is to appeal the jury’s verdict.

Summary and full case available here.

Colorado Supreme Court: Home State of Colorado Not Required to Give Full Faith and Credit to Nebraska Custody Determination for Lack of Jurisdiction under PKPA

The Colorado Supreme Court issued its opinion in In re the Parental Responsibilities of L.S., and Concerning McNamara on June 27, 2011.

Custody Determination—Jurisdiction—Parental Kidnapping Prevention Act.

The Supreme Court held that, because the Nebraska district court that entered the initial custody determination at issue in this case failed to exercise jurisdiction consistent with the requirements of the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (2010) (PKPA), Colorado is not required to give that custody determination full faith and credit. The PKPA, and Colorado statutes and case law that incorporate the PKPA’s requirements, mandate that to warrant full faith and credit enforcement in a sister state, the state that entered the custody determination must have exercised jurisdiction consistently with the provisions of the PKPA.

In this case, the Nebraska district court did not have jurisdiction to enter a child custody determination under Nebraska law, because Nebraska was not the child’s home state and the home state (Colorado) did not decline jurisdiction on the ground that Nebraska is a more appropriate forum. Consequently, the PKPA does not require Colorado to accord the Nebraska custody determination full faith and credit.

Summary and full case available here.

Colorado Supreme Court: Mere Storage of Water for Later Use Does Not Qualify as a Beneficial Use

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Upper Yampa Water Conservancy District in the Yampa River or its Tributaries in Routt and Moffat Counties: Upper Yampa Water Conservancy District v. Wolfe, State Engineer, Water Division 6 on June 27, 2011.

Conditional Water Right—Actual Storage—Actual Beneficial Use.

The Supreme Court affirmed an order of the district court for Water Division No. 6, holding that to perfect a conditional water right that allows storage, an applicant must show actual storage and actual beneficial use of a specific amount of water. The applicant also must show that it appropriated water in excess of its existing absolute decrees allowing for storage.

The applicant, Upper Yampa Conservancy District (District), was given an opportunity by the district court to submit quantifiable evidence that it appropriated water in excess of its existing absolute decrees, but it failed to submit such evidence. Instead, the District relied on the argument that mere storage for later use should qualify as beneficial use. The Supreme Court rejected this argument, because storage itself is not a beneficial use; the subsequent use of stored water is the beneficial use for which water is stored.

The Court also rejected the District’s assertion that once a conditional water right has been decreed, the only question when considering an absolute application is whether the District has completed the appropriation envisioned by a prior judicial decree. The Court has long held that once a conditional water right has been decreed, its holder has the continuing burden to establish a non-speculative need for that right.

Summary and full case available here.

Colorado Supreme Court: No Evidence Defendant Acted under Duress when He Had a Gun and Drove Himself to the Crime Scene

The Colorado Supreme Court issued its opinion in People v. Speer on June 27, 2011.

Entitlement to Jury Instruction on Affirmative Defense of Duress—Imminence Requirement—Definition of “Public Law Enforcement Agency” Under CRS § 16-10-103(1)(k).

Both Speer and the People petitioned for review of the court of appeals’ judgment reversing Speer’s conviction for attempted aggravated robbery. The People sought review of the court of appeals’ determination that the district court erroneously denied Speer’s requested jury instruction on the affirmative defense of duress, resulting in the reversal of his conviction. Speer cross-petitioned, asserting that even if the denial of his requested instruction was not reversible error, he nevertheless would be entitled to a new trial because the district court erred in rejecting his challenges for cause to two prospective jurors who worked in airport security.

The Supreme Court reversed the judgment of the court of appeals. It was undisputed that Speer had a gun and drove himself to the scene of the crime. Based on these circumstances, the Court found that there was no evidence from which a reasonable jury could conclude that defendant acted under duress, as the statute defining that defense has been construed by the Court. Therefore, the district court did not err in rejecting defendant’s proffered duress instruction.

The Court also rejected Speer’s argument that the district court erred in rejecting his challenges for cause to two prospective jurors who worked in airport security, finding that neither the Department of Homeland Security nor the Transportation Security Administration is a public law enforcement agency within the meaning of CRS § 16-10-103(1)(k).

Summary and full case available here.

Bankruptcy Court: Enforceable Reaffirmation Agreement Must Be Made Before an Order of Discharge Enters; Court Need Not Advise Debtors when Represented by Counsel

The U.S. Bankruptcy Court for the District of Colorado issued its opinion in In re Shepard on Monday, June 27, 2011.

11 U.S.C. §524(c)(1) and (3); and §524(d); Fed.R.Bankr.P. 4004(c)(1) and (c)(2).

Chapter 7 debtors and one of their secured creditors entered into a reaffirmation agreement. Debtors filed their case with the advice and assistance of an attorney. Debtors’ attorney did not sign the reaffirmation agreement. Creditor and debtors, on their own behalf, filed a joint motion to set a hearing to consider approval of the reaffirmation agreement, and debtors filed a motion to defer entry of the order of discharge to permit the court to hold a hearing on approval of the reaffirmation agreement prior to entry of the discharge.

The Court denied both motions; the creditor appealed; and creditor filed a motion for stay pending appeal. Creditor sought to delay the entry of the order of discharge asserting that its appeal would be moot if the discharge order entered. Judge Campbell denied the creditor’s motion for stay pending appeal. The Court’s conclusion to deny stay of the entry of the order of discharge rests on the language of section 524(c)(1) which conditions enforceability of a reaffirmation agreement upon the agreement having been made (as opposed to filed or approved) before an order of discharge enters. The Court ruled that section 524(d), which requires the court to advise debtors who are not represented by an attorney in negotiating a reaffirmation agreement, does not apply to Chapter 7 cases where a debtor is represented by counsel.

Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.