April 22, 2018

Archives for March 12, 2014

Nominees Selected for Judgeship in Second Judicial District

On Tuesday, March 11, 2014, the Colorado State Judicial Branch announced the selection of three nominees to fill a vacancy on the bench of the Second Judicial District Court. The vacancy will be created by the retirement of Hon. Norman Haglund, effective April 18, 2014.

The three nominees are Karen L. Brody of Denver, David H. Goldberg of Denver, and Jay S. Grant of Denver. Contact information for the nominees is available on the State Judicial website.

Under the Colorado Constitution, the governor has 15 days from March 11 in which to appoint one of the nominees to the judgeship. If he does not do so within that time, the Chief Justice of the Colorado Supreme Court will select a nominee. Comments regarding any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us.

Denver Bar Association Releases Survey Regarding Second Judicial District Nominees

A Second Judicial District vacancy will be created by the retirement of the Honorable Norman D. Haglund on April 18. The Colorado Judicial Department has released the names of the three finalists for that vacancy on the bench. The finalists are Karen L. Brody, David H. Goldberg, and Jay S. Grant. See below for brief biographies on each candidate.

Please take a few minutes to fill out this survey regarding the nominees. The Denver Bar Association, through its President, Daniel R. McCune, will provide the information from the survey to Gov. John Hickenlooper’s legal team.

The survey will be compiled by The Denver Bar Association and all survey responses are confidential. Each time a judicial vacancy occurs in the Denver District Court, the Denver Bar surveys its members on the nominees to provide feedback to the governor’s office.

The survey will close at 5 p.m. on Friday, March 14. You can begin the survey here. We apologize for the short turnaround time but the names were just released. Thank you for taking the time to respond.

The three nominees are:

Karen L. Brody
Brody is currently an attorney with Lowe, Fell & Skogg in Denver where she practices Commercial, Real Estate, and Eminent Domain Litigation. Ms. Brody received her undergraduate degree from the University of Denver in 1982, her M.A. from Tufts University in 1983, and her Juris Doctor from the University of Denver in 1996.

David H. Goldberg
Goldberg is currently a trial attorney at Greenberg Traurig practicing commercial litigation and arbitration. In addition, he was formerly the managing partner of an international law firm’s Moscow office, where his practice focused on international transactions, financing, licensing and distribution agreements. Mr. Goldberg received his undergraduate degree from the University of Northern Colorado in 1980 and his Juris Doctor from the Chicago-Kent College of Law, Illinois Institute of Technology in 1983.

Jay S. Grant
Grant is currently a Deputy State Public Defender in Denver. Mr. Grant previously was an attorney at Stiner, Beck, Jonson & Nolan, where he practiced criminal defense and family law, and was an attorney at Cudd & Associates, where he practiced securities law. Mr. Grant received his undergraduate degree from New Mexico State University in 1992 and his Juris Doctor from Oklahoma City University in 1997.

If you have any questions or concerns, please contact Alexa Drago at adrago@cobar.org or (303) 824-5313.

Tenth Circuit: Colorado Legislators Have Standing to Challenge Constitutionality of TABOR Amendment

The Tenth Circuit Court of Appeals published its opinion in Kerr v. Hickenlooper on Friday, March 7, 2014.

Various groups, and in particular, several Colorado state legislators, brought an action in the U.S. District Court for the District of Colorado. They claimed that the so-called Taxpayer’s Bill of Rights, TABOR, violated the Guarantee Clause of the federal Constitution, was in direct conflict with provisions of the Enabling Act, and impermissibly amended the Colorado Constitution.

In order to avoid Eleventh Amendment sovereignty issues, the Governor of Colorado, John Hickenlooper, was designated as the named defendant. Governor Hickenlooper filed his Answer to the plaintiffs’ Complaint, and followed with a motion to dismiss, alleging that plaintiffs lacked Article III standing and prudential standing, and that their claims were barred by the political question doctrine. This motion was denied by the district court, and the Governor appealed, asserting error and asking the Tenth Circuit to dismiss the proceedings on the same bases that he presented to the district court.

The merits of the case were not before the court. The court expressed no view on the substantive issues. It considered solely standing and the political question doctrine: whether these plaintiffs had suffered a particularized injury not widely shared by the general populace that entitled them to have their case heard by the federal courts, and whether the question presented was purely political in nature and should not be reached by the courts.

The Tenth Circuit concluded that these plaintiffs could bring their claims and that the political question doctrine did not bar the court’s consideration.

Article X, § 20 of the Colorado Constitution—better known as the Taxpayer’s Bill of Rights or TABOR—was adopted by voter initiative in 1992. TABOR limits the revenue-raising power of the state and local governments by requiring voter approval in advance for any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a new tax revenue gain. Like all provisions in Colorado’s Constitution, TABOR may be revoked or amended only with voter approval.

To establish Article III standing, a plaintiff must show: (1) that it has suffered a concrete and particular injury in fact that is either actual or imminent; (2) the injury is fairly traceable to the alleged actions of the defendant; and (3) the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The court limited its review to the standing of the legislator-plaintiffs.

The court’s analysis of standing began with injury-in-fact. The legislator-plaintiffs claimed that TABOR deprived them of their ability to perform the legislative core functions of taxation and appropriation. They said that TABOR prevented them from doing their jobs. Several cases have held, in other contexts, that an inhibition on a person’s ability to perform work constitutes an injury-in-fact. The Supreme Court has held that members of a state legislature may have standing to sue in order to vindicate the “plain, direct and adequate interest in maintaining the effectiveness of their votes.”

Plaintiffs claimed that they had been deprived of their power over taxation and revenue. Under TABOR, the state “must have voter approval in advance for . . . any new tax, tax rate increase, . . . or a tax policy change directly causing a net tax revenue gain to any district,” with narrow exceptions. Under TABOR, a legislative vote for a tax increase is completely ineffective because the end result of a successful legislative vote in favor of a tax increase is not a change in the law. TABOR denies the Colorado General Assembly the “ability to vote” on operative tax increases, and the legislator-plaintiffs cannot undo its provisions pursuant to the normal legislative process. The legislator plaintiffs’ injury is their disempowerment rather than the failure of any specific tax increase. The Tenth Circuit agreed with the district court that the legislator-plaintiffs sufficiently alleged an injury to the plain, direct and adequate interest in maintaining the effectiveness of their votes. The court therefore held that plaintiffs suffered an injury in fact, and thus proceeded to a brief discussion of causation and redressability.

To satisfy causation for standing purposes, plaintiffs must demonstrate that their injury is fairly traceable to the challenged action of the defendant. And an injury is redressable if a court concludes it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The legislator-plaintiffs’ alleged injury was not a lack of revenue flowing into state coffers, but the elimination of their authority to make laws raising taxes or increasing spending. This injury was directly attributable to TABOR’s requirement that any tax increase be approved by Colorado voters. Plaintiffs sought a declaratory judgment that TABOR is null and void and an order prohibiting any state officer from enforcing TABOR’s provisions. Such a judgment would allow the legislator-plaintiffs to vote directly for increased taxes, thereby redressing their alleged injury.

In addition to the Article III requirements for standing, the court also discussed prudential standing considerations. Courts should generally decline to hear cases based on nothing more than a plaintiff’s disagreement with budgetary policies. The court did not doubt that TABOR has had a substantial effect on the state of Colorado and its citizens. But the injury the legislator-plaintiffs sought to redress was particular to their positions as state legislators and was not shared in substantially equal measure by all or a large class of citizens. Only the one hundred members of the Colorado General Assembly could claim the disempowerment injury alleged here.

The court then turned to the political question doctrine. The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.

As a threshold matter, the court had to decide if the political question doctrine precluded Guarantee Clause challenges against state constitutional amendments adopted by popular vote. Although there was some support for this position in Supreme Court cases predating the modern articulation of the political question doctrine, the court concluded neither case merited consideration in this case.

Applying the six factors set forth in Baker v. Carr, 369 U.S. 186 (1962), the court first considered whether the Guarantee Clause manifests “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” The Guarantee Clause provides: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” Two other provisions of Article IV specifically empower Congress to act, but the Guarantee Clause does not. Looking to the particular fact setting presented, as Baker directed, the court discerned no textual commitment of the narrow issue raised by the plaintiffs to a coordinate political branch.

The court was similarly unpersuaded that a “lack of judicially discoverable and manageable standards”  precluded judicial review of this lawsuit. Without reaching or considering the merits, the court noted the ready availability of sources providing judicially manageable guidance on the meaning of the Guarantee Clause.

With respect to the third Baker test, the Tenth Circuit concluded that resolving this case did not require the making of a “policy determination of a kind clearly for nonjudicial discretion.” TABOR is a hotly contested issue in Colorado that has had a wide-ranging influence on the state’s fiscal policy. But the interpretation of constitutional text—even vague constitutional text—is central to the judicial role.

The court dispensed briefly with the remaining three Baker factors: “[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” The court stated that these factors are best understood as promoting separation-of-powers principles in cases featuring prior action on an issue by a coordinate branch.

The court emphasized that this interlocutory appeal allowed it to consider only whether the legislator-plaintiffs established Article III standing and whether prudential standing jurisprudence or the political question doctrine precluded consideration of their Guarantee Clause and Enabling Act claims. The Tenth Circuit’s answer to those questions completed its role at this stage of the proceedings.

The Tenth Circuit AFFIRMED the standing and political question rulings of the district court and REMANDED for further proceedings.

Tenth Circuit: Defendant’s Terry Stop Reasonable Under Fourth Amendment

The Tenth Circuit Court of Appeals published its opinion in United States v. Fonseca on Monday, March 10, 2014.

Defendant Scott Fonseca was convicted of possessing stolen firearms and was sentenced to seventy months’ imprisonment. On appeal, he raised two challenges to his conviction. First, he argued the district court erred in denying his motion to suppress evidence of the stolen firearms because they were found as the result of a detention that exceeded the permissible scope of a Terry stop. Second, he contended reversible error occurred when the government introduced testimony—contrary to the district court’s grant of Defendant’s earlier motion in limine, but without a concurrent objection by Defendant—that he had previously sold several guns that were stolen at the same time as the eight firearms found as a result of the Terry stop.

The parties agreed that the Officer’s stop of Defendant was an investigative detention governed by the Supreme Court’s opinion in Terry v. Ohio, 392 U.S. 1 (1968). A twofold inquiry determines whether a Terry stop is reasonable under the Fourth Amendment. “First, the officer’s action must be ‘justified at its inception.” Thus, for an investigative detention, the officer must have an articulable and reasonable suspicion that the person detained is engaged in criminal activity. Second, the officer’s actions must be reasonably related in scope to the circumstances which justified the interference in the first place.

In this case, Defendant conceded that the first prong of Terry was satisfied. However, Defendant contended the detention was not reasonable in scope because the Officer continued to detain Defendant after he had answered the officer’s questions.

The court held that the scope of the detention was reasonable under all of the circumstances of this case. After reviewing all of the evidence on appeal, particularly the video recording of the events leading up to Defendant’s arrest, the court was persuaded that this case did not involve any delay unnecessary to the legitimate investigation of the law enforcement officers. The Tenth Circuit therefore affirmed the district court’s denial of Defendant’s motion to suppress evidence of the eight stolen firearms.

The court then turned to Defendant’s argument regarding the introduction of evidence that he sold several of the stolen firearms before the night of his Terry stop. Just prior to the start of the trial, defense counsel made an oral motion in limine to exclude certain types of evidence, including evidence regarding possible sales of guns by Defendant. The trial court granted the motion. During trial, the government asked a witness several questions about the sale of stolen guns, and Defense counsel never objected. Defendant argued on appeal that the testimony should not have been admitted.

If Defendant had raised a contemporaneous objection to the government’s evidence of gun sales, he would not have been futilely reraising an objection that had already been rejected. Rather, he would have been putting the district court on notice of his current argument that the government was violating the court’s earlier evidentiary ruling by eliciting testimony that fell within the scope of this ruling. The Tenth Circuit held that Defendant was required to raise a contemporaneous objection at the time the alleged error occurred—when the government introduced evidence that allegedly should have been excluded pursuant to the district court’s pretrial ruling. Because Defendant did not object when this evidence was introduced, the court’s review was only for plain error.

The Tenth Circuit was not persuaded the error was plain and obvious. Defendant did not show a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.

The court AFFIRMED Defendant’s conviction and sentence.

Tenth Circuit: Unpublished Opinions, 3/10/2014

On Monday, March 10, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Western Heritage Bank v. Federal Insurance Company

United States v. Barraza

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 14-1196: Creating a Task Force to Study Marijuana’s Impact on Local Government

On January 30, 2014, Rep. Cheri Gerou and Sen. Cheri Jahn introduced HB 14-1196 – Concerning the Creation of a Local Government Impacts Task Force. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As introduced, the bill creates the marijuana impacts task force (task force) in the department of local affairs to study the local government impacts related to the cultivation, testing, sale, consumption, and regulation of retail marijuana and retail marijuana products. The task force consists of 17 members who represent specified local government interests, state government agencies, the marijuana community, and public defenders.

The task force is required to meet during the 2014 interim and may solicit input from various state and local government entities, public and private organizations, and private citizens. The bill specifies that members of the task force serve without compensation and that all staff needed to assist the task force will be provided by the department of local affairs.

The task force is required to evaluate the impacts that the cultivation, testing, sale, consumption, and regulation of retail marijuana and retail marijuana products have on the services provided by local governments and on local governments’ budgets. In addition, the task force is required to develop recommendations that may be implemented at the state or local level to help address such impacts.

On Feb. 20, the Local Government Committee heard testimony and amended the bill; the final decision on the bill will be determined by the committee at a later date.

HB 14-1199: Amending Regulations for Consumer Goods Service Contracts Based on NAIC Model Act

On January 30, 2014, Rep. Angela Williams and Sen. Cheri Jahn introduced HB 14-1199 – Concerning Changes to the Regulation of Consumer Goods Service Contracts. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill provides for changes to the regulation of consumer goods service contracts based on the model act of the national association of insurance commissioners. These contracts require the provider to perform repair, replacement, or maintenance on any consumer good covered by the service contract. The bill requires that service contracts be in writing and disclose to the contract holder the terms and conditions of the contract, the covered consumer goods, the identity of the provider and any administrator appointed by the provider, procedures for cancellation of the contract by either the provider or the service contract holder, and whether the service contract is protected by reimbursement insurance coverage. Under this bill, a provider must provide the contract holder with a sample copy of the service contract prior to selling the contract, and must provide an actual copy of the contract to the contract holder within a reasonable time following sale of the contract.

The bill requires that a contract holder be allowed to void the contract within 20 days after the contract holder receives the contract unless the contract holder has already made a claim under the contract. Either a contract holder or a provider may cancel a contract at any time, in which case the provider must refund to the contract holder a pro rata share of the consideration paid to the provider minus a 10% administrative fee.

In order for a service contract provider to sell service contracts, the provider must demonstrate an ability to faithfully provide the services covered under the contract. The provider can do this by either obtaining reimbursement insurance coverage, maintaining a funded reserve account and placing a financial security deposit in trust with the commissioner of insurance, or demonstrating that the provider’s company or parent company has a net worth of at least $100,000,000.

A service contract provider must also adhere to record-keeping requirements, and must maintain those records for a period of at least one year after the specified coverage has expired.

The bill specifies that service contracts are not insurance, and service contract providers, as well as their agents and employees, are not required to be licensed under any other provisions of the state insurance laws. Service contract providers, with some exceptions, are not allowed to use terms descriptive of the insurance industry in their name. Service contract providers are also prohibited from making false and misleading statements. Lending institutions, sellers, and manufacturers are further prohibited from requiring a service contract as a condition of a loan or for the sale of any property.

The commissioner may discipline noncompliance with the bill through an administrative hearing and may seek a judicial remedy for enforcement. Any civil penalties assessed by the commissioner are limited to $500 per violation, up to $10,000 for all violations of a similar nature.

On Feb. 20, Business, Labor, Economic, & Workforce Development Committee amended the bill are sent it to the Appropriations Committee.

HB 14-1205: Creating Veterans’ Assistance Grant Program to Provide Financial Assistance to Improve Health and Well-being of Veterans

On January 30, 2014, Rep. Su Ryden and Sen. Larry Crowder introduced HB 14-1205 – Concerning the Veterans’ Assistance Grant Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The veterans’ assistance grant program (program) is created in the division of veterans affairs within the state department of military and veterans affairs to provide moneys to nonprofit organizations and governmental agencies that provide services to ensure the health and well-being of veterans of the United States armed forces who live in Colorado.

On or before Sept. 1, 2014, the adjutant general, in consultation with the board of veterans affairs, shall adopt rules for the administration of the program, including but not limited to:

  • Criteria for determining which nonprofit organizations and governmental agencies are eligible to receive moneys from the program; and
  • Procedures by which eligible organizations may apply for and receive moneys from the program.

The veterans assistance grant program cash fund is created and consists of any moneys received by the division as gifts, grants, or donations and such moneys as are appropriated to the fund by the general assembly. The program is repealed, effective Sept. 1, 2024. Before such repeal, the department of regulatory agencies shall review the program.

On February 17, 2014, the House Committee on State, Veterans, and Military Affairs referred the bill, unamended, to the Appropriations Committee.

HB 14-1206: Modifying the “Colorado Charitable Solicitations Act”

On January 30, 2014, Rep. Kathleen Conti and Sen. Jessie Ulibarri introduced HB 14-1206 – Concerning Modifications to the “Colorado Charitable Solicitations Act,” and, in Connection Therewith, Prohibiting Certain Charitable Solicitation Practices, Modifying the Secretary of State’s Fining Authority, Adjusting Registration Statement Requirements, and Specifying Requirements for Appointing Registered AgentsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As amended in the Senate, the bill amends the “Colorado Charitable Solicitations Act” (act) as follows:

  • Modifies the required content of charitable organization registration statements to eliminate unnecessary content;
  • Prohibits a charitable organization from aiding, abetting, or permitting a person paid solicitor to solicit contributions on its behalf unless the paid solicitor has complied with the requirements of the act;
  • Specifies that while information filed with the Secretary of State’s office by a charitable organization, professional fundraising consultant, or paid solicitor in connection with the person or organization’s registration is a public record, account numbers at banks or other financial institutions are not a public record;
  • Eliminates the fine amounts specified in the act for soliciting while unregistered, thereby allowing the secretary of state to set those fine amounts by rule;
  • Requires registered individuals and organizations to appoint a registered agent to receive notices, process, and other materials for the individual or organization; and
  • Modifies the fines that may be imposed for failing to timely file required documents with the secretary of state.

On March 4 the House gave final approval to the bill. The bill is assigned to the Senate State, Veterans, & Military Affairs Committee.

HB 14-1211: Requiring Complex Rehabilitation Technology to be Available to Medicaid Recipients

On January 30, 2014, Rep. Dave Young and Sen. Lois Tochtrop introduced HB 14-1211 – Concerning Ensuring Access to Quality Complex Rehabilitation Technology in the Medicaid Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the department of health care policy and financing (department) to recognize complex rehabilitation technology as a specific need of persons with complex diagnoses or medical conditions that result in significant physical or functional needs.

The department must designate appropriate billing codes as complex rehabilitation technology and establish supplier quality standards for complex rehabilitation technology suppliers. Additionally, the department must require evaluation of complex needs patients by qualified professionals for purposes of identifying appropriate complex rehabilitation technology. Further, the department must develop pricing policies for complex rehabilitation technology.

The bill defines terms relating to complex rehabilitation technology.

The bill is assigned to the Public Health Care & Human Services Appropriations Committees.