June 27, 2017

Archives for April 14, 2017

Bills Enacting Uniform Unsworn Declarations Act, Exemption from Mandatory Advisement Requirements, and More Signed

On Thursday, April 13, 2017, Governor Hickenlooper signed ten bills into law. To date, he has signed 147 bills into law this 2017 legislative session. Some of the bills signed Thursday include a bill adopting the Uniform Unsworn Declarations Act, a bill granting immunity to a person who renders emergency assistance to a person or animal in a locked vehicle, a bill exempting certain traffic violations from the mandatory advisement requirements for municipal judges, and more. The bills signed Thursday are summarized here.

  • HB 17-1021“Concerning an Employer’s Violation of Wage Laws,” by Rep. Jessie Danielson and Sen. John Cooke. The bill clarifies that information obtained by the Division of Labor Standards and Statistics that relates to a finding of a violation of wage laws is not confidential and shall be released to the public or for use in a court proceeding, unless the Director of the Division makes a determination that the information includes specific information that is a trade secret.
  • HB 17-1081“Concerning Authority to Offer In-state Tuition Classification at State-supported Institutions of Higher Education for Athletes Training in Colorado in Programs Approved by the United States Olympic Committee,” by Rep. Dan Nordberg and Sen. Stephen Fenberg. The bill allows a state-supported institution of higher education to charge in-state tuition to an athlete residing anywhere in Colorado and training in an elite level program in Colorado approved by the United States Olympic committee and the governing body of an Olympic, Paralympic, Pan American, or Parapan American sport.
  • HB 17-1083“Concerning an Exemption for Certain Traffic Violations of the Requirement that a Municipal Judge Inform a Defendant of Certain Rights,” by Rep. Larry Liston and Sen. Bob Gardner. The bill excludes cases involving traffic infractions or violations for which the penalty is only a fine and for which jail is not a possibility from the requirement that municipal judges inform defendants of certain rights.
  • HB 17-1125“Concerning Eliminating the Duty of the Division of Correctional Industries to Provide Certain Services for the State’s Correctional Facilities,” by Reps. Dan Nordberg & Faith Winter and Sens. Jim Smallwood & Cheri Jahn. The bill removes a requirement that the Division of Correctional Industries in the Department of Corrections establish programs for vehicle maintenance, physical plant and facility maintenance, and food and laundry services for each of the state’s correctional facilities.
  • HB 17-1144“Concerning Amendments to the Automatic Cash Fund Funding Mechanism for Payment of Future Costs Attributable to Certain of the State’s Capital Assets,” by Rep. Daneya Esgar and Sen. Randy Baumgardner. The bill requires the General Assembly to include an annual depreciation-lease equivalent payment line item payable from the cash fund that is the funding source for the capital construction appropriation in the operating section of the annual general appropriation act for each state agency.
  • HB 17-1145“Concerning Authorization for Amateur Winemakers to Enter Wines in Organized Events,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill authorizes amateur winemakers to enter their wine in organized events, such as contests, tastings, or judgings at licensed premises.
  • HB 17-1179“Concerning Immunity for a Person who Renders Emergency Assistance from a Locked Vehicle,” by Reps. Lori Saine & Joann Ginal and Sens. Lois Court & Vicki Marble. The bill provides immunity from civil and criminal liability for a person who forcibly enters a locked vehicle for the purpose of rendering assistance to an at-risk person or animal.
  • HB 17-1194“Concerning Technical Changes Relating to the Operation of Pathways in Technology Early College High Schools,” by Rep. Mike Foote and Sen. John Cooke. The bill amends the definition of a pathways in technology early college (p-tech) high school to include a p-tech program that operates within a host school.
  • HB 17-1196“Concerning Changes to the Training Requirements for Applicants for Licensure under the ‘Barber and Cosmetologist Act’,” by Rep. Jeni Arndt and Sen. Kevin Priola. The bill requires the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies to promulgate rules for applicants for cosmetologist or barber licensure to furnish proof of training, not to exceed 50 credits or 1,500 contact hours.
  • SB 17-154“Concerning  the ‘Uniform Unsworn Declarations Act’, by Sen. Bob Gardner and Rep. Cole Wist. The bill adopts in Colorado the Uniform Unsworn Declarations Act,expands the uniform law to include domestic unsworn declarations as contemplated, and clarifies that the act applies only to the use of unsworn declarations in state courts.

For a list of all Governor Hickenlooper’s 2017 legislative actions, click here.

Colorado Court of Appeals: Neighbors’ Due Process Rights Not Violated During Rezoning Hearing

The Colorado Court of Appeals issued its opinion in Whitelaw v. Denver City Council on Thursday, April 6, 2017.

C.R.C.P. 106(a)(4) —Rezoning Decision—Due Process—Spot Zoning.

Plaintiffs Whitelaw, III and various neighbors sought judicial review of the rezoning decision of defendant Denver City Council. Cedar Metropolitan LLC applied to rezone a 2.3-acre parcel. To build an “age-targeted” apartment complex on the site, Cedar sought to tear down a blighted church and rezone the parcel from single family home to a zone district that allowed three-story apartment buildings. The neighbors are property owners who live in the neighborhood near the parcel. They challenged the rezoning efforts, asserting it would hurt their property values, create traffic and parking problems, cause hazards to pedestrians, and degrade the character of the surrounding neighborhood. Following an eight-hour hearing, the Council granted the request to change the zoning.

The neighbors challenged the rezoning in district court under C.R.C.P. 106(a)(4). The district court rejected all of their claims. On appeal, the neighbors asserted various claims, principally violation of their right to due process. They made five due process arguments. The court of appeals will affirm a rezoning decision unless the governmental entity exceeded its jurisdiction or abused its discretion, which occurs if the body misapplied the law or no competent evidence supports its decision.

The neighbors first argued that a lobbyist for Cedar communicated before the hearing with Council member Susman, in whose district the parcel lies, through her private email account and by phone. They alleged that the failure to disclose these communications to the public before the hearing deprived them of their due process rights because they did not have notice and an opportunity to rebut the information on which the Council may have impermissibly relied in making its determination. Despite evidence of approximately 50 pages of such emails, the neighbors pointed to no evidence that they had a “substantial prejudicial impact” on the outcome of the proceedings. In fact, Susman voted against the rezoning. The neighbors did not overcome the presumption that the Council members acted with integrity, honesty, and impartiality, and they showed no prejudice from the communications.

Second, the neighbors asserted their due process rights were violated due to the involvement of Cedar’s architect, who was also a member of the City’s Planning Board, in the application process. The Planning Board recommended that the Council approve the rezoning. The architect submitted the application to the Board, but did not attend the Planning Board meeting or vote on the rezoning and thus complied with the Denver Municipal Code. Further, the Planning Board’s recommendation is not appealable because it is not a “final decision” reviewable under C.R.C.P. 106(a)(4). Therefore, the court of appeals did not review this claim.

Third, the neighbors argued that their due process rights were violated because certain Council members’ comments at the public hearing reflected “flawed quasi-judicial decision making” and showed they “relied on irrelevant factors and information outside of the hearing record” in making their decision. The neighbors failed to demonstrate a lack of competent evidence supporting the Council’s decision or that any individual member relied on factual information outside the hearing record or ignored the record in casting their vote. There was competent evidence in the record to support the Council’s decision.

Fourth, the neighbors argued their due process rights were violated because the Council stepped outside of its neutral, quasi-judicial role and supported Cedar by improperly applying the protest petition procedure of the Denver City Charter. The protest procedure provides that if opponents gather signatures from property owners representing 20% or more of the land area within 200 feet of the perimeter of a proposed rezoning, the rezoning must pass the Council by a super-majority (10 members). Opponents gathered 17% of the perimeter zone signatures and the rezoning passed 8 to 4. The neighbors argued that the City improperly applied the protest procedure by including City-owned park land but not allowing a procedure for residents to obtain petition signatures from the City. The court disagreed, finding that the City’s calculation of the 200-foot protest petition area was in accordance with the Denver Charter.

Fifth, the neighbors alleged a due process violation because some Council members received “substantial” political contributions from lobbyists and were therefore biased in the rezoning vote. Evidence of this was not in the record before the Council and therefore was not reviewable by the court.

The neighbors also argued that the rezoning decision must be vacated because, as a matter of law, it did not comply with the City’s zoning ordinance, alleging it was not consistent with the City’s adopted plans; no specific circumstances justified the rezoning; and the rezoning fails to further the public health, safety, and general welfare. The record shows that the Council members engaged in lengthy discussions about the criteria and evidence, including testimony presented by both proponents and opponents at the hearing. The Council did not abuse its discretion in concluding that the proposed zoning was consistent with the City’s adopted plans; the rezoning resulted in uniformity of district regulations and restrictions; the rezoning furthered the public health, safety, and general welfare; circumstances justified the rezoning; and the rezoning was consistent with the description of the applicable neighborhood context and the stated purpose and intent of the proposed Zone District.

Finally, the neighbors argued that the rezoning was impermissible spot zoning because it did not further Denver’s comprehensive plans and was therefore an abuse of discretion. The court disagreed. Here, the rezoning was not out of character with the adjacent area and furthered the City’s adopted plans.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Jury Foreman’s Affidavit Allowable Under CRE 606(b) Due to Mistake in Entering Verdict

The Colorado Court of Appeals issued its opinion in Malpica-Cue v. Fangmeier on Thursday, April 6, 2017.

Mistake on Special Verdict Form—CRE 606(b).

Malpica-Cue sued Fangmeier for damages resulting from a car accident. After trial, the jury filled out a Special Verdict Form B that included three different damages amounts. All six jurors signed the form, and the judge read the verdict and each separate amount of damages aloud in open court. The jury foreman confirmed the verdict. Counsel for both parties declined to poll the jury.

Fangmeier filed a post-trial motion averring that while the jurors were still in the courthouse, defense counsel spoke with some of them about the amount of damages they had awarded. They said they had intended to award $2,500 for noneconomic losses, $18,373.38 for economic losses, and $0 for physical impairment or disfigurement. The total damages intended, $20,873.38, had mistakenly been added together and inserted on the line for physical impairment and disfigurement, making the total damages $41,746.76. Defense counsel told the court clerk that all six jurors agreed they had made a mistake on the verdict form and wanted to fix it. The judge denied counsel’s request to reconvene the jury that day and told him to file a motion.

Fangmeier filed a motion asking the court to vacate the jury verdict awarding $41,746.76 and enter judgment awarding $20,873.38. The motion included an affidavit from the jury foreman saying the jury had made a mistake. The district court denied the motion, stating that CRE 606(b) precluded it from considering the foreman’s affidavit.

On appeal, Fangmeier argued that the foreman’s affidavit should not have been precluded because an exception to Rule 606(b) allows jury testimony regarding “whether there was a mistake in entering the verdict onto the verdict form.” Here, all the jurors agreed that there should have been no recovery for physical impairment or disfigurement and the foreman misread the jury form, so the exception applies. While the affidavit by itself does not require the verdict to be changed, Fangmeier is entitled to an evidentiary hearing on the issue. Thus, it was error to not reconvene the jurors on the day the trial ended and in later failing to reconvene the jurors to ascertain the true verdict in response to the post-trial motion.

The order was vacated and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Lacked Jurisdiction to Confirm Arbitration Award Where Arbitrator Died

The Colorado Court of Appeals issued its opinion in In re Marriage of Roth on Thursday, April 6, 2017.

Subject Matter Jurisdiction—Death of Arbitrator During Pendency of Arbitration.

The parties agreed to arbitrate the permanent orders issues in their dissolution of marriage. The agreement provided that the Colorado Uniform Arbitration Act (CUAA) governed the proceedings; the arbitrator would reserve jurisdiction for 20 days after issuing an award to allow the parties to seek clarification, correction, or modification of the award; and if jurisdiction was reserved on an issue, the arbitrator would hear it unless he was unavailable. The arbitrator issued an award, and both parties submitted timely requests for modification and clarification of the award. During the process of submitting these requests, the arbitrator died. Five days later, wife moved in district court to appoint a replacement arbitrator under C.R.S. § 13-22-215(5). A week later husband moved to confirm the arbitrator’s award under C.R.S. § 13-22-222. The trial court found that wife was essentially seeking to relitigate the permanent orders, and it denied her motion and granted husband’s motion to confirm the award and entered a dissolution decree incorporating the award.

On appeal, wife argued that under the CUAA, the district court lacked subject matter jurisdiction to confirm the arbitration award while the parties’ requests to modify or correct it were pending before the arbitrator. She contended that upon the death of the arbitrator, the court had subject matter jurisdiction only to appoint a replacement arbitrator. Under the CUAA, a valid and enforceable arbitration agreement divests the district court of jurisdiction on all matters submitted to arbitration pending the conclusion of the arbitration. Here, due to the timely requests for modification or correction of the award, the arbitration proceedings had not concluded at the death of the arbitrator and subject matter jurisdiction to confirm the award was not in the district court. Under the CUAA, the district court only had subject matter jurisdiction to appoint a replacement arbitrator to complete the proceedings.

Wife further contended that the district court erred by denying her motion to appoint a replacement arbitrator. Because it is undisputed that the parties’ chosen arbitrator could not act, the district court was required to appoint a replacement arbitrator.

The district court’s judgment confirming the arbitration award was vacated, its order denying wife’s motion to appoint a replacement arbitrator was reversed, and the case was remanded to appoint a replacement arbitrator to complete the arbitration proceedings.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/13/2017

On Thursday, April 13, 2017, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Arleni-Escobar v. Sessions

United States v. McIntosh

United States v. Gilchrist

Cash v. Lockheed Martin Corp.

United States v. Murphy

Thomas v. Berryhill

SMS Financial JDC, LP v. Cope

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