November 18, 2017

Archives for April 2012

Fourth Annual Sean May Memorial Run/Walk Set for May 12

Sean May

The Fourth Annual Sean May Memorial Run/Walk will be held on May 12, 2012 at Barr Lake State Park. The run was created to honor May, a chief deputy district attorney with the Seventeenth Judicial District Attorney’s Office who was shot to death in his backyard when he was returning home from work.

During his seven years of service in Adams County, May volunteered for the Child Victim Unit, where he pursued justice for children who had been physically and/or sexually abused. At the time of his death, he was responsible for training and supervising new prosecutors.

May always stressed the importance of acting responsibly, including treating victims, the community, defendants and the courts with dignity and respect. Proceeds from the race will benefit Access to Justice programs and activities and May’s family.

The Self-Help Resource Center at the Adams County Justice Center was made possible in part by the proceeds from this event. The center provides computers, information and staff to help people with legal procedural questions. Since opening on January 5, 2011, it has served more than 3,000 people.

The race is organized by the Seventeenth J.D. Access to Justice Committee, the Adams/Broomfield Bar Association and the Colorado Bar Association. The race will be professionally timed by Hallucination Sports. To register or fundraise for the race, visit seanmaymemorialrun.org; a list of sponsors and sponsorship information is also available there. If you’re interested in sponsoring the race, please contact Loren Brown at lorenbrown@colo-law.com or Mariana Vielma or mvielma@da17.state.co.us.

Last year approximately 300 people participated in the race, and the event raised nearly $10,000. Please help us spread the word and consider creating a team with colleagues!

Colorado Supreme Court: PUC Considered All Mandated Factors in Setting Rates for Basic Residential Phone Service with Evidence to Support Decision

The Colorado Supreme Court issued its opinion in Colorado Office of Consumer Counsel v. Colorado Public Utilities Commission on April 30, 2012.

Basic Residential Telephone Service Regulation—Maximum Rate Setting.

The Supreme Court reversed the district court’s judgment, holding that the Colorado Public Utilities Commission (PUC) regularly pursued its authority in setting maximum rates for basic residential telephone service pursuant to CRS § 40-15-502(3)(b). The PUC considered all of the statutorily mandated factors in setting the rates and there was substantial evidence supporting its decision.

Summary and full case available here.

Colorado Supreme Court: Statute Codifies Common Law Pre-Verdict Component of Collateral Source Rule Prohibiting Admission of Amount Paid by Tort Plaintiff’s Insurance

The Colorado Supreme Court issued its opinion in In re Smith v. Jeppsen on April 30, 2012.

Insurance—Collateral Source—Evidence—Statutory Interpretation.

The Supreme Court held that CRS § 10-1-135(10)(a) codifies the common law pre-verdict component of the collateral source rule prohibiting the admission at trial of evidence of the amount paid by a tort plaintiff’s insurance company pursuant to the plaintiff’s medical expense coverage. The trial court correctly applied CRS § 10-1-135(10)(a) prospectively in this action to exclude from trial evidence of the amount paid by a collateral source. The Court therefore discharged the rule to show cause.

Summary and full case available here.

Colorado Supreme Court: Common Law Pre-Verdict Evidentiary Component of Collateral Source Doctrine Prohibits Admission of Amount of Tort Plaintiff’s Medical Expenses

The Colorado Supreme Court issued its opinion in Wal-Mart Stores, Inc. v. Crossgrove on April 30, 2012.

Insurance—Collateral Source—Evidence.

The Supreme Court affirmed the court of appeals’ decision to reverse the trial court’s admission of evidence of the amount paid by a collateral source for a tort plaintiff’s medical expenses. The Court held that the common law pre-verdict evidentiary component of the collateral source doctrine prohibits the admission.

Summary and full case available here.

Colorado Supreme Court: Liability Assessments and Fault Evaluations in Underinsured Motorist Action Are Not Reasonably Calculated to Lead to Admissible Evidence

The Colorado Supreme Court issued its opinion in Sunahara, Jr. v. State Farm Mutual Automobile Ins. Co. on April 30, 2012.

Uninsured/Underinsured Motorist Coverage—Collateral Source—Evidence—Discovery.

The Supreme Court reversed the court of appeals’ decision to affirm the trial court’s admission of evidence of the amount paid by a collateral source for a tort plaintiff’s medical expenses. The Court held that the common law pre-verdict evidentiary component of the collateral source doctrine prohibits the admission.

The Court upheld the court of appeals’ decision to affirm the trial court’s exclusion of respondent’s un-redacted claim file from discovery pursuant to Silva v. Basin Western Inc., 47 P.2d 1184, 1193 (Colo. 2002). The Court held that the liability assessments and fault evaluations underlying an insurance company’s reserves and settlement authority in an underinsured motorist action are not reasonably calculated to lead to admissible evidence as required by C.R.C.P. 26(b)(1).

Summary and full case available here.

Tenth Circuit: Petitioner Used Fifth Amendment Privilege to Manipulate Securities Fraud Litigation Process; Not Abuse of Discretion to Deny Leave to Withdraw Assertion

The Tenth Circuit Court of Appeals published its opinion in SEC v. Smart on Friday, April 27, 2012.

The Tenth Circuit affirmed the district court’s decision. In 2009, the SEC began investigating Petitioner, who was the sole owner of Smart Assets, for securities fraud. Petitioner appeared before the agency to provide testimony, but his counsel instructed him “to take the Fifth Amendment,” and the proceeding ended. The next day, the SEC sued Petitioner and Smart Assets, claiming Petitioner “had defrauded multiple investors because he had represented that investors’ money would be placed in low-risk financial instruments, but he then used their money to cover his and his wife’s personal expenses, pay prior investors, and engage in high-risk ventures, like hard-money lending. In the process, he commingled investor funds, fabricated account statements, refused investors’ inquiries about their money, misled investors about his affiliation with a financial-planning firm, gave promissory notes as collateral for investment funds, and gave investors bogus financial product-information sheets.” The SEC moved for summary judgment and asked the district court to draw an adverse inference against Petitioner in regard to his Fifth Amendment invocations. Petitioner sought a continuance. The district court granted summary judgment, citing Petitioner’s “failure to raise a genuine issue of fact, and it inferred from his Fifth Amendment invocation that ‘he knowingly and purposely defrauded investors.'”

On appeal, Petitioner contends that he should have been permitted to withdraw his assertion of the Fifth Amendment and have his declarations considered in opposing summary judgment. The Court disagreed, stating that the circuit has “not yet defined the parameters in a civil case for withdrawing an invocation of the Fifth Amendment privilege against self-incrimination.” However, the “circumstances of [Petitioner]’s invocation of the Fifth Amendment reveal that he was using the privilege to manipulate the litigation process. . . . Further, [Petitioner] took the Fifth during the deposition of Smart Assets after conferring with the company’s counsel. . . . Given the circumstances of this case, [the Court concluded] that the district court did not abuse its discretion in denying [Petitioner] leave to withdraw his assertion of the Fifth Amendment privilege against self-incrimination and in striking his declarations.” Additionally, Petitioner failed to provide evidence to contradict the SEC’s evidence of his frauds.

Tenth Circuit: Unpublished Opinions, 4/27/12

On Friday, April 27, 2012, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Unpublished

Peper v. United States Dep’t of Agric.

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

SB 12-175: Updating Time Computations of Statutorily Based Court Rules to Conform with “Rule of Seven”

On April 20, 2012, Sens. Morgan Carroll and Ellen Roberts and Reps. Bob Gardner and Crisanta Duran introduced SB 12-175 – Concerning Statutorily Established Time Intervals. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The long awaited and much anticipated bill of the session is here!

Introduced on Friday, April 20 and scheduled for Senate Judiciary on Monday, April 23, SB 175 – Concerning statutorily established time intervals is ready for prime time.

Background and Purpose:

On January 1, 2012 the Colorado Supreme Court adopted time interval/time computation rules that impact various areas of the practice of law. In conjunction with the pure court rules there are numerous Court Rules that have a statutory basis. Legislation is required to bring the statutorily based court rules in line with the new court rules that were adopted in January.

The Colorado Bar Association (CBA) involvement with this bill has been along the lines of “assisting” the Supreme Court’s Civil Rules Committee with the passage of legislation that amends the statutorily based civil rules. The CBA has been working on the bill draft to make sure that we amend all the statutes that impact Court Rules. Our substantive sections of the CBA have been pouring over the bill draft for weeks in an effort to bring forth the most comprehensive bill draft possible. This bill is 100% technical. Nothing in it provides advantages to one party in a case over another; it merely changes time intervals and time computations for cases filed in Colorado courts.

The new rules and the proposed statutory changes that we bring are patterned after recent reform of the Federal Rules (trial court and appellate) that were approved by the U.S. Supreme Court and the U.S. Congress in 2009. As in the Federal Rule concept, a day is a day, and because calendars are divided into seven-day week intervals, groupings of days are in seven-day intervals, sometimes referred to as “Rule of 7.” Groupings of less than seven days are left as they are because such smaller numbers do not interfere with the underlying concept.

Historically, state court rules have patterned federal rules because practitioners often practice in both court systems. It is particularly desirable to have similar time interval/time computation systems. The proposed concept differs from the Federal system in one respect: the Federal Rules have retained the three-days-for-service feature, whereas the proposed state court rule eliminates it. This is largely due to the fact that near universal mandatory e-filing/serving makes the three-days-for-service unnecessary and not worth the additional confusion it adds to the process.

Since this summary, the bill passed a Second Reading in the Senate with amendments.

Summaries of other featured bills can be found here.

SB 12-174: Authorization of Alternate Appeal Processes for Property Valuation Appeals in the City and County of Denver

On April 20, 2012, Sen. Mike Johnston and Rep. Dan Pabon introduced SB 12-174 – Concerning the Creation of a Pilot Alternate Property Tax Valuation Protest and Appeal Procedure for the City and County of Denver. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, the county board of equalization receives and hears petitions for appeal regarding the valuation for assessment of taxable property. The county board of equalization process has multiple filing deadlines and addresses valuation appeals in a single year. The board of county commissioners also receives and hears petitions for appeal and has jurisdiction over petitions for abatement or refund of taxes, including assessment of taxable property overvaluation. The board of county commissioners process has one filing deadline and can address valuation appeals, abatements, and refunds over multiple years.

The bill creates a pilot program that authorizes the governing body of the city and county of Denver, at the request of the assessor, to elect to use an alternate protest and appeal procedure that combines the multiple steps in the annual valuation dispute process through the county board of equalization into the single hearing and appeal process conducted by the board of county commissioners. The filing deadlines for tax petitions and for resolving valuation disputes are specified for the city and county of Denver to use the alternate protest and appeal procedure.

The bill also authorizes the city and county of Denver board of equalization and the board of county commissioners to request that the taxpayer that filed a petition, or the taxpayer’s representative, to be present at the hearing and requires each board to dismiss the petition with no right to appeal if the taxpayer or the taxpayer’s designee fails to be present at the hearing absent good cause. Assigned to the Finance Committee; the bill has not been scheduled for committee review.

Summaries of other featured bills can be found here.

SB 12-172: Requiring Colorado’s Participation in Multi-State Consortium to Develop Assessments in English Language Arts and Science

On April 18, 2012, Sen. Mike Johnston introduced SB 12-172 – Concerning Student Assessments Adopted by the State Board. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the state board of education is directed to adopt a system of assessments aligned with state standards in a variety of subjects. The bill directs the state to join as a governing board member a consortium of states that is developing a common set of assessments. For assessments in reading, writing, and mathematics, the state board will rely upon assessments developed by the consortium. For all other assessments, the state board will, to the extent possible, rely upon assessments developed in conjunction with other states. Assigned to the Education Committee; the bill is set for committee review on Thursday, April 26 at 1:30 p.m.

Summaries of other featured bills can be found here.

SB 12-171: Creation of the Colorado Conservation and Recreation Program

On April 18, 2012, Sen. Brandon Shaffer and Rep. Jon Becker introduced SB 12-1340 – Concerning the Creation of the Colorado Conservation and Recreation Fund, and, In Connection Therewith, Creating the Colorado Conservation License Plate. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the Colorado conservation and recreation fund and program and designates the program as an enterprise. The program is directed to build a conservation and recreation center at Bonny Lake and to use any remaining moneys for similar programs. The program is given bonding authority. The program may enter into business relationships with nonprofit entities and exercise the powers necessary for an enterprise.

The bill also creates the Colorado conservation license plate. A person becomes eligible to use the plate by donating $150 to the Colorado conservation and recreation fund. In addition to the normal motor vehicle fees, the plate requires two one-time fees of $25. One of the fees is credited to the highway users tax fund and the other to the licensing services cash fund. Assigned to the Finance Committee; the bill is set for committee review on Thursday, April 26 Upon Adjournment.

Since this summary, the bill was referred unamended from the Finance Committee to Appropriations.

Summaries of other featured bills can be found here.

SJR 12-040: Colorado General Assembly Recognizes and Commends the CBA and the Veteran Trauma Court

On April 18, 2012, Sens. Kent Lambert and Brandon Shaffer and Reps. Mark Waller and John Soper issued Senate Joint Resolution (SJR) 12-040 – Concerning Service to Veterans by the Colorado Bar Association and the Veteran Trauma Court. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Be It Resolved . . . That the Colorado General Assembly recognizes and commends the Colorado Bar Association and the Veteran Trauma Court for their work providing assistance to our veterans and calls for a renewed commitment to supporting the growth of these important endeavors.

Summaries of featured bills can be found here.