April 23, 2018

Archives for July 7, 2011

Department of State Makes Amendments to Colorado Election Rules

The Colorado Department of State has proposed amendments to the Colorado Secretary of State Election Rules. The changes are seen as necessary to improve the administration of elections in Colorado.

Amendments will be made to rules concerning:

  • the processing of voter registration applications;
  • voter correspondence;
  • assigning ballot order for measures submitted by jurisdictions crossing county lines;
  • mail ballot elections;
  • recount procedures for races involing write-in candidates;
  • initiative petition entity licensing procedures;
  • initiative petition circulator residence;
  • provisional ballot acceptance codes;
  • implementation of HB 11-1219 regarding military and overseas voters;
  • unsigned mail/mail-in ballot affidavits;
  • emergency mail-in ballots; and
  • technical corrections and clarifications.

Additionally, the Secretary of State will consider other rules necessary to implement amendments to the election laws made during the latest Colorado legislative session.

A hearing on the proposed rules will be held on Tuesday, August 2, 2011 at the Office of the Secretary of State, 1700 Broadway, Blue Spruce Room (2nd Floor), Denver, Colorado 80290, beginning at 2:00 pm.

Full text of the proposed rules can be found here. Further information about the new rules and hearing can be found here.

Colorado Court of Appeals: Announcement Sheet, 7/7/11

On Thursday, the Colorado Court of Appeals issued seven published opinions and twenty-one unpublished opinions.

Published

People v. Hopper

Maehal Enterprises, Inc. v. Thunder Mountain Custom Cycles, Inc.

Honnen Equipment Co. v. Never Summer Backhoe Service, Inc.

United States Welding, Inc. v. B&C Steel, Inc.

Sosa v. Industrial Claim Appeals Office of the State of Colorado

People In the Interest of R.D., a Child, and Concerning M.D.

People In the Interest of L.A.N., a/k/a L.A.C., a Child, and Concerning L.M.B.

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

David Getches, Former Dean of CU Law School, Passes Away

By now, you’ve surely heard the sad news: University of Colorado School of Law’s former dean, David Getches, passed away on Tuesday, July 5. David served as dean of the law school up until last Friday, when he was replaced by Phil Weiser. The transition was planned almost a year ago, as he wanted to return to the teaching faculty after serving as dean for eight years. David died in his home of pancreatic cancer, which was only diagnosed in early June.

According to the Daily Camera, David became a member of the CU Law faculty in 1979, and became dean of the school in 2003. During his tenure, he oversaw the opening of the $40 million Wolf Law Building in 2006. David also worked hard to increase scholarship money for those going to the school, and increased the school’s endowment 80 percent since 2003. Click here to read some comments from his colleagues at CU Law School.

And David’s legacy is not confined to the law school. He earned his undergraduate degree from Occidental College in California and his law degree from the University of Southern California School of Law. He began his legal career in 1967 with the law firm of Luce, Forward, Hamilton and Scripps in San Diego. In 1968, he was co-directing attorney for California Indian Legal Services and, in 1970, he moved to Colorado to become the founding executive director for the Boulder-based Native American Rights Fund, a national, nonprofit Indian-interest law firm. Additionally, from 1983 to 1987, David served as executive director of the Colorado Department of Natural Resources under Governor Richard D. Lamm.

A memorial service for David is being planned and will be announced at a later date. Check back with Legal Connection for details, we’ll pass them on to you when they become available. Contributions can be sent to the David H. Getches Scholarship Fund.

For now, we’d like to invite you to use the comments section below to post your thoughts, memories, and sentiments about David. He will be missed.

State Judicial Issues Revised Forms Regarding the Sealing of Criminal Conviction Records

The Colorado State Judicial Branch has issued three revised forms regarding the sealing of criminal conviction records. Practitioners should begin using the new forms immediately.

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

District Civil/Criminal

  • JDF 613 – “Order Denying Petition to Seal” (revised 7/11)
  • JDF 614 – “Order and Notice of Hearing” (revised 7/11)
  • JDF 615 – “Order to Seal Criminal Conviction Records” (revised 7/11)

Denver District Court has specific requirements for filing Petitions to Seal Arrest Records and/or convictions.  Please review filing information located on the Denver District Court website.

Molly Kocialski: United States House of Representatives Passes Patent Reform

The U.S. House has approved H.R. 1249 with strong bipartisan support. The Senate passed a similar measure, S. 23, in a 95-5 vote in March. The House bill, approved at the end of last month, has to be reconciled with the Senate version before it can be sent to the White House for President Obama’s signature. However, reconciliation is likely still a ways off since the Senate is out of session the week of July 4.

The House bill covers who can get a patent, how patents are reviewed and whether some types of ideas are eligible for protection. Central to the bill is language regarding the collection and spending of usage fees by the U.S. PTO. Under the bill, a special fund will be established and the U.S. PTO will have to submit spending plans to Congress to access the funds. Thus, it does not look like the final bill will include a guarantee of full funding of user fees for the U.S. PTO.

The bill also included provisions that would grant patents to the first inventor to file an application, create a new process to review patents after they’ve been issued, and establish a special type of review of patents for finance-related business methods. Other provisions would limit lawsuits in which a manufacturer is accused of putting expired patent numbers on packaging; limit patents on tax-avoidance strategies; allow for third parties to submit information that could be used in the review process; and establish satellite offices the agency could set up nationwide to tap into local workforces.

To access the full text of the bill, please go to: http://thomas.loc.gov/ and enter H.R.1249 in the search area.

Molly Kocialski is Patent Counsel at Oracle in Broomfield. She was also on the planning committee and faculty for the 2010 IP Institute. She is a contributor to the CBA IP Section Blog, where this post originally appeared on June 24, 2011.

Profile of the New CBA President, David L. Masters: Teacher, Tech Guru, and Outdoor Adventurer

David Masters and wife Mary Jane at the 2010 CBA Presidents' Dinner

It was a simple entrepreneurial endeavor—starting a promotion company that would feature national acts performing concerts on National Forest Service land—that would change David L. Masters’s life in two profound ways. First, it would lead him to meet Mary Jane Hadeed, whom he later would marry. Second, investigating the company’s startup would provide an introduction to the legal profession, which would ultimately inspire him to become a lawyer.

Mary Jane was planning, building, and patrolling cross-country ski trails for the U.S. Forest Service when she heard about Masters and Will Lewis applying for a special use permit to host concerts. She was intrigued by the idea and had to meet them. Just two years later, she and Masters would wed in Leadville.

Forming the promotion company also led Masters to visit the office of a Western Slope attorney. As he looked around the office, the Army veteran turned Leadville auto parts shop manager took in the Spartan items that made up what he thought was all that was needed to run a law office—a typewriter and a set of books.

“I thought, ‘Wow, that’s all you need,’” Masters said. “That was a big motivation.”

That attorney was Kenneth M. Plotz, who would go on to serve as a judge in Colorado’s Eleventh Judicial District Court.

“Kenny was an inspiration for me to go to law school,” Masters said. “Part of my idea was that I could go to any small town and just be a general practitioner. I just wanted to help people do real estate deals or do their wills—whatever lawyers in small towns do.”

The promotion company was something that Masters and Lewis started for fun. They ultimately hosted several concerts on private land until the company was dissolved in 1978. Meanwhile, Masters continued to manage an auto parts store.

A few years later, Masters discussed with Mary Jane the idea about moving to Montana to go to law school. She was on board, and so was Plotz, who served as one of Masters’s references for his admission to law school and again for the Colorado Bar when the Masters family of three—David, Mary Jane, and daughter Allison—returned to Colorado in 1986.

A Love for Teaching

Masters has always had the uncanny ability to take a lot of complex information, digest it quickly, and explain it to others. It is curiosity mixed with the great ability to distill the overwhelming into the tangible, whether it be interpreting a statute, presenting a continuing legal education program, or explaining the basics of rock climbing.

Family Tree: David and Mary Jane, with daughters Allison (left) and Laura on Vancouver Island, British Columbia, Canada

“Whatever he is passionate about—whether it’s music, photography, climbing, or computers—he always wants to share it with others,” said Kathryn Sellars, an associate (and soon to be partner) with The Masters Law Firm in Montrose. “He wants others to be excited, too.”

That affinity of sharing knowledge with ease has made teaching and mentoring seamless additions to Masters’s law practice over the years. This is evident at his law office. Going from office space to conference room, a visitor immediately will be dazzled by the photographs he took while he was in Africa in 2010, for example, and others from his visits to Utah. They are clearly indicative of his talent for photography and his love of the outdoors. What may not be immediately noticed are the white boards in the office, which Masters uses to visually plot out tough issues in a case.

“He really trains the attorneys in his office to strategize and think big picture, and he really mentors throughout the process,” Sellars said.

Masters’s enjoyment of and inclination for teaching extends beyond the office setting. Daughter Allison, now 27, said she learned a great deal about writing and editing from her father while she was in high school. Today, she teaches English composition at Front Range Community College in Fort Collins. Second daughter Laura also is interested in teaching and hopes to teach English as a second language. Masters has formally taught classes with the National Institute for Trial Advocacy since 2001 and over the years has taught as an adjunct professor at Mesa State College in Montrose.

An Epiphany About Information Sharing

Hanging on a corkboard in his office is a photograph of petroglyphs that Masters took in the Sego Canyon in Utah. What resonates with him is the idea that when those were created approximately 8,000 years ago, painting on a rock wall was the manner of sharing information.

When talking about what he’s read recently, he mentions the book My Reading Life by Patrick Conroy. It discusses how reading has impacted the author’s life, but what Masters took away from it was the idea that for humans, one of the most important requests we make is, “Tell me a story.” He said: “There’s this whole continuum of how we as human beings have recorded and shared information, and it’s that ability to deal with information that is really part of the huge advances of the human race.” With these thoughts about how we share and archive information swirling in his head, Masters went down a path that would change the way he practices law.

A Hobby With a Professional Edge

When Masters was a partner at the Montrose law firm of Mathis & Masters from 1986 to 1999, the secretaries were the only ones in the office who knew how to turn on and work on the computers. “You look back fifteen years and it just seems so primitive,” he said, laughing.

Still, he saw how computers could be a tool in the legal practice, and he resolved to learn more about them. “Instead of having model trains or building ships in bottles as a hobby, computers became my hobby,” Masters said. “It was the perfect fit with my profession then and it still is today.” As he explains it, “In the late ’90s, there was this dawning realization that computers—instead of just being number crunchers—were going to be used to manage information, and we [lawyers] were the information workers. So, why wouldn’t we use these information managing tools to manage and use the info that we deal with every day?” It was this idea that computers were incredibly powerful tools for lawyers that spring-boarded him into speaking about technology and law practice locally and at American Bar Association (ABA) events.

In 2000, Masters decided he wanted to dissolve his professional partnership and go solo. Part of the reason for making this move was that he wanted to further pursue the use of technology in his law practice. He and his former partner Steve Mathis have remained friends through the transition. In fact, Mathis, who is a pilot, will be flying Masters to some of his CBA President’s visits on the Eastern Plains.

Going Paperless

By 2001, Masters had achieved one technology-related goal: his office was paperless. Today, there is only one two-drawer file in the Masters Law Office. It largely houses empty manila folders. There are some books, too, but the law firm’s research is largely done through online legal research tools. Masters likewise keeps an up-to-date CD-ROM archive, for those times he’s in a spot without Internet access. Occasionally, Masters will be at a conference and overhear someone talking about how they’ve made their office paperless. He’ll smile, knowing that the model is the same as his—and one he has regularly spoken about.

As time went on, going paperless became a reality with e-filing, too. He recalls working on a federal case with Christina Habas in 2002, before she was appointed to the Denver District Court bench. They kept all of their documents electronically.

“Throughout that case, he had scanned in essentially every document and made them searchable,” said Judge Habas. “It was just a complete change in how I practiced law.”

Adobe PDF and E-Filing

It became clear to Masters that Adobe PDF would be the standard for e-filing and keeping legal documents. It was an exciting realization, but also one that prompted him to think about the less-tech-savvy or even the tech-averse lawyers and how they would deal with this format. He decided that someone needed to write a book on how to work with PDF, and it might as well be him. “I got up and penciled out the table of contents and took it from there,” he said. In 2004, the ABA published The Lawyer’s Guide to Adobe Acrobat, which is now in its third edition.

Plans as CBA President

Masters has two passions within the law—technology and mentoring—that he hopes to make cornerstones of his year as CBA President. Encouraging the use of technology in the law practice will come as little surprise to those who know him. “That’s just me,” he said.

Mentoring is equally close to his heart. “I feel a great need to teach or mentor young lawyers,” Masters said. He hopes to further the CBA’s efforts to start a mentoring program. He would like to see the program gain sufficient momentum to continue beyond his term as CBA President.

Bringing Balance and a Unique Perspective to the Table

Longtime friend and Telluride Town Manager Greg Clifton said he is proud to see Masters take on this role as CBA President. “David is a pretty balanced person; I think he has very good perspective on things,” Clifton said. “He’s a great attorney. He’s a good listener. He’s a really good problem solver.”

Judge Habas also believes that Masters will bring a unique perspective to the presidency. His experience as a solo practitioner and as a Western Slope resident who has traveled far and wide throughout the state, the country, and the world—coupled with his laid-back personality and his ability to balance his professional responsibilities and his personal life—will bring something positive to his role as CBA President. “I think he’s going to bring a real eclectic background and real eclectic interests,” Judge Habas said.

An Outdoorsman for All Seasons

Late in the afternoon on a blustery spring day, Masters and Mary Jane are in their element taking visitors on a tour of “the park”—better known outside Montrose as the Black Canyon of the Gunnison National Park. Masters peers out into the canyon from one of the viewing points, which looks across the narrow, deep recess at a sheer wall of taupe, mixed with streams of pink. Mary Jane, today a park ranger at the Black Canyon, explains that the pink streams in the rock are pegmatite, some of the oldest rock in the world. It’s really lava that crystallized when it squeezed itself between the cracks of rock sometime during the Precambrian Era, 250 to 540 million years ago.

Throughout the tour of the park, Masters points out the routes (they’re routes, not trails, because the entire area is considered “backcountry”) he and Mary Jane take when they want to go to the base of the canyon. This is no easy feat, considering the canyon claims the state’s tallest vertical wall at 2,250 feet. Mary Jane spots two climbers two-thirds of the way up the face. Their bright T-shirts and helmets mark pinpoints in the vastness of the rock. Masters explains that expert climbers flock to this area to make the climb, and that it usually takes two days to reach the top. Masters is a climber, as well, though he admits this vertical wall is not one he has any plans to scale.

Masters and Mary Jane have always enjoyed the outdoors. “We’ve always been hikers, bikers, runners, climbers, outdoors people—enjoying people-powered sports—and we always will be,” Masters said. Currently, he’s been enjoying trail-running and climbing.

David Masters sits in front of teh snake petroglyph in Moab, Utah. Masters is an avid outdoorsman and spends his free time trail running and climbing.

The adventurous parents have instilled their love of the outdoors in their daughters. Allison said she enjoys hiking and camping, but admits her parents can be hard to keep up with. “As a teenager, I remember being bribed to the top of my first (and only) fourteener with the promise of a new CD,” she said recently.

Laura said her parents began taking her on hikes even before she could walk. The 22-year-old still likes to go hiking with her parents, but she especially loves climbing with her dad. Masters first took Laura rock climbing when she was about 8 years old. “We had a really fun day,” Laura said. “I was so excited to learn something so new and fun, and he was really enjoying being able to pass on his love of climbing to me.”

Dennis Devor, a Montrose-based sole practitioner and past president of the Seventh Judicial District Bar Association, offered his description of Masters: “David is kind of a 23rd century guy and an 18th century guy all in one. He really enjoys the out-of-doors just as he clearly is looking to challenge himself with tomorrow’s technology.”

In February 2010, Masters and Mary Jane did some high-altitude climbing, reaching the summit of Mount Kilimanjaro after an eight-day hike. Their photo at the summit shows them bundled in jackets and gloves. “It was extremely cool,” Masters said of the view from the top.

David and Mary Jane on the summit of Mount Kilimanjaro in Africa, February 2010

To prepare for the climb, they did a lot of snowshoeing and hiking, and spent a few nights in their camper at the top of Red Mountain Pass to acclimate themselves to the cold and the altitude. Most winter nights, theirs was the only camper up there. Although Masters doesn’t think he’ll pursue the Seven Summits—climbing the seven highest peaks on all seven continents—he’s not ruling it out. He and Mary Jane are seriously considering climbing Aconcagua, the 22,841-foot mountain that lies on the Chile−Argentina border, following his term as CBA President.

Looking Toward the Future

There are several literal mountains left for Masters to climb. In the meantime, though, he would like to propose a few metaphorical ones for the legal community. When asked what he would change about the legal profession, he paused for several moments.

“It’s a very hard question,” he replied. After giving it some thought, he said it would be to increase the level of professionalism. “I would like to see lawyers treat each other with more respect and not engage in the maneuvering and game playing that tends to go on.”

Others find the keys to professionalism exemplified in Masters. “I’ve never seen him drop that air of complete professionalism,” Judge Habas said. “I hope he can change the conversation a bit—[professionalism] is about more than just being polite.”

To Kathryn Sellars, Masters exemplifies that integrity in his daily actions. “He strives to have integrity with every decision and every action. To me, that is one of the true measures of integrity—the small things without the expectation of credit and when no one is watching.”

Sellars also hopes David’s enthusiasm—for the law and for life—is contagious with members. “David is passionate about service and participation within the bar association, and perhaps it is this characteristic that will become most prominent to others throughout his term as President,” she said. “I believe the story will be that his passion has encouraged others to give more, participate more, and expect more from themselves.”

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

Division of Insurance Proposes New Regulation Concerning Prescreening Questionnaires for Individual Health Benefit Plans

The DORA Division of Insurance has proposed a new regulation concerning prescreening questionnaires. The purpose of the new regulation is to implement a prescreening questionnaire for use by carriers marketing and issuing individual health benefit plans.

Child-only policies are guaranteed issued pursuant to state and federal law. Therefore, this questionnaire will not be used in connection with the issuance of child-only policies.

A hearing on the new proposed regulation will be held on Tuesday, August 2, 2011 at 1560 Broadway, Suite 850, Denver, Colorado 80202, beginning at 1:00 pm.

Full text of the proposed regulation can be found here. Further information about the new regulation and hearing can be found here.

Division of Insurance Proposes New Regulation Concerning Explanation of Benefits

The DORA Division of Insurance has proposed a new regulation concerning what information carriers must provide on Explanation of Benefits forms. The purpose of the regulation is to set forth the required information for health carriers to provide on the form sent to covered persons or providers.

The new regulation does not apply to Medicare Supplement or disability income insurance.

A hearing on the new proposed regulation will be held on Tuesday, August 2, 2011 at 1560 Broadway, Suite 850, Denver, Colorado 80202, beginning at 1:00 pm.

Full text of the proposed regulation can be found here. Further information about the new regulation and hearing can be found here.

Gaming Commission Reshuffled after Voting to Lower Casino Taxes

On Wednesday, July 6, 2011, Governor John Hickenlooper announced five appointments to the Colorado Limited Gaming Control Commission.

The Colorado Limited Gaming Control Commission adopts and enforces rules and regulations for the establishment and operation of gambling in the Colorado towns of Black Hawk, Central City, and Cripple Creek.

Each of the appointees will be new to the Commission. One current member reached the end of a second four-year term and was not eligible for reappointment; one member reached the end of a four-year term and did not reapply for a second term; and three members were asked by the governor to step down.

The new Commission members must be confirmed by the Colorado Senate. The new members appointed by the Governor are:

  • Charles J. Murphy, of Colorado Springs, to serve as a member from the Fifth Congressional District and to represent registered electors; term to expire on July 1, 2012.
  • Sheriff Douglas N. Darr, of Thornton, to serve as a member from the Second Congressional District and as a representative of law enforcement; term to expire on July 1, 2013.
  • Jannine Mohr, of Loveland, to serve as a member from the Fourth Congressional District and as an attorney; term to expire on July 1, 2014.
  • Robert W. Webb, of Golden, to serve as a member from Seventh Congressional District and to represent Certified Public Accountants and corporate finance; term to expire on July 1, 2014.
  • Lowell R. Hutson, of Denver, to serve as a member from the First Congressional District and as someone who has been engaged in business and a management-level capacity for at least five years; term to expire on July 1, 2014.

The new appointments come nearly seven weeks after the Commission decided to lower taxes paid by casinos amid the economic downtown affecting nearly all industries in Colorado. The governor disagreed with the decision and sought to create a broader perspective on the Commission.

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

Tenth Circuit: The EPA’s Air Quality Standard Designations are National Interpretations of Clean Air Mandates and Must Be Challenged in D.C.

The Tenth Circuit Court of Appeals issued its opinion in ATK Launch Systems, Inc. v. EPA on Wednesday, July 6, 2011.

The Tenth Circuit transfered the petitions to the U.S. Court of Appeals for the District of Columbia Circuit. Under the Clean Air Act, the EPA is charged with establishing National Ambient Air Quality Standards (NAAQS) for various air pollutants. Once a NAAQS is established, the EPA must promulgate designations of geographic areas across the nation according to their compliance with the NAAQS. These consolidated petitions challenge the EPA’s inclusion of portions of Box Elder and Tooele counties, Utah, in a “nonattainment” area as to the NAAQS for fine particulate matter. Nonattainment areas are areas with air quality that does not meet the NAAQS or with air quality that “contributes to ambient air quality in a nearby area that does not meet” the NAAQS.

In a motion to dismiss or to transfer the petitions, the EPA raised the threshold question whether the petitions are properly adjudicated in the Tenth Circuit or whether they belong in the D.C. Circuit under the judicial review provision of the Clean Air Act. Under the Act, petitions for review of “nationally applicable regulations promulgated, or final action taken” are to be filed in the D.C. Circuit. However, petitions challenging any final action “which is locally or regionally applicable” must be filed in the court of appeals in the “appropriate circuit.”

The Court determined that Petitioner “complains of errors [that] are not limited to EPA’s assessment of facts on the ground wholly within Box Elder and Tooele counties. Rather, it invokes a broad comparison between EPA’s designations as to those counties and the designations of counties in other regions in an attempt to demonstrate that EPA’s application of its nationwide standard was arbitrary and capricious because it leads to inconsistent outcomes in different areas of the country.” Any area falling below the NAAQS standard receives the nonattainment designation and the according consequences. The EPA’s listing of the designations applied to each locality does not, as Petitioner suggests, constitute a mere amalgamation of numerous local actions into a single rule. “Rather, EPA’s Designations Rule constitutes its national interpretation of Clear Air Act mandates, and any challenge thereto belongs in the D.C. Circuit.”

Tenth Circuit: Unpublished Opinions, 7/6/11

On Wednesday, July 6, 2011, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Unpublished

United States v. Grillo

United States v. Rodriguez Escobedo

United States v. Arreola

Speer v. Sirmons

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.