May 23, 2018

Archives for May 2018

Colorado Supreme Court: Non-resident’s Harassment and Threatening of Colorado Victim Sufficient to Establish Long-arm Jurisdiction for Civil Protection Order

The Colorado Supreme Court issued its opinion in Parocha v. Parocha on Monday, May 21, 2018.

Personal Jurisdiction.

The supreme court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident. The court concluded that an out-of-state party’s harassment of, threatening of, or attempt to coerce an individual known by the non-resident to be located in Colorado is a tortious act sufficient to establish personal jurisdiction under the state’s long-arm statute, C.R.S. § 13-1-124. The court also concluded that such conduct creates a sufficient nexus between the out-of-state party and Colorado to satisfy the requisite minimum contacts such that the exercise of jurisdiction by a Colorado court to enter a protection order comports with traditional notions of fair play and substantial justice.

The court reversed the district court’s order vacating the permanent civil protection order and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Special Prosecutor Unnecessary for Post-Trial Proceeding

The Colorado Supreme Court issued its opinion in People v. Ehrnstein on Monday, May 21, 2018.

Special Prosecutors—Colo. RPC 3.7—Post-Trial Proceedings.

In this interlocutory appeal, the supreme court reviewed the trial court’s order appointing a special prosecutor for the purpose of litigating defendant’s post-trial motion for a new trial. In his motion, defendant alleged that the prosecution had improperly instructed a witness to evade a defense subpoena. The trial court concluded that the Colorado Rules of Professional Conduct compelled it to appoint a special prosecutor for the purposes of the hearing on this motion because, subject to exceptions not pertinent here, Colo. RPC 3.7 prohibits an attorney from acting as both an advocate and a witness during the same proceeding.

The court concluded that the trial court abused its discretion in appointing a special prosecutor because that court misapplied the law when it found that Colo. RPC 3.7 required the appointment of a special prosecutor in the circumstances present here. Specifically, the rule serves to prevent prejudice that arises from jury confusion in cases in which an attorney serves as both counsel and witness. Because this proceeding arose in the context of a post-trial motion, that concern is not implicated.

The court reversed the trial court’s order and remanded this case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Insurers Have Duty Not to Unreasonably Withhold or Delay Payments, Even Where Other Parts of Claim in Dispute

The Colorado Supreme Court issued its opinion in State Farm Mutual Automobile Insurance Co. v. Fisher on Monday, May 21, 2018.

Insurance—Underinsured Motorist Benefits—Unreasonable Delay/Denial of Payment.

The supreme court held that under C.R.S. § 10-3-1115 insurers have a duty not to unreasonably delay or deny payment of covered benefits, even though other components of an insured’s claim may still be reasonably in dispute. Here, an insurer issued multiple underinsured motorist insurance policies that covered a driver who was injured by an underinsured motorist. Though the insurer agreed that its policies covered the driver’s medical expenses, it refused to pay them because the insurer disputed other amounts (including lost wages) that the driver sought under the policies. A jury found that the insurer violated C.R.S. § 10-3-1115, which provides that an insurer “shall not unreasonably delay or deny payment of a claim for benefits owed to or on behalf of any first-party [insured] claimant.” Because the court of appeals properly upheld the driver’s jury award, the court affirmed its judgment.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/22/2018

On Tuesday, May 22, 2018, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Parr v. Rodriguez

Racette v. Berryhill

Emrit v. Oliver

Jackson v. State of Oklahoma

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

Colorado Supreme Court: Water Court Lacked Subject Matter Jurisdiction Over Constitutionality of Groundwater Statute

The Colorado Supreme Court issued its opinion in Jim Hutton Educational Foundation v. Rein on Monday, May 21, 2018.

Water Law—Jurisdiction.

The Jim Hutton Educational Foundation, a surface-water user, claimed that a statute prohibiting any challenge to a designated groundwater basin that would alter the basin’s boundaries to exclude a permitted well is unconstitutional. The water court dismissed that claim for lack of subject matter jurisdiction, concluding that the surface-water user had to first satisfy the Colorado Groundwater Commission that the water at issue was not designated groundwater. The supreme court concluded that, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater, the water court properly dismissed the constitutional claim for lack of subject matter jurisdiction.

The court affirmed the water court’s ruling.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Road Condition Did Not Create “Unreasonable Risk,” Therefore CGIA Applied

The Colorado Supreme Court issued its opinion in City & County of Denver v. Dennis on Monday, May 21, 2018.

Colorado Governmental Immunity Act—Sovereign Immunity.

The supreme court considered whether the City and County of Denver waived its immunity under the Colorado Governmental Immunity Act (CGIA). After a motorcycle accident, plaintiff sued the City and County of Denver, and alleged that Denver had waived its immunity under the CGIA because the road on which plaintiff was traveling constituted a dangerous condition that physically interfered with the movement of traffic. To prove a dangerous condition, a plaintiff must prove four elements, one of which is that the road constituted an unreasonable risk to the health and safety of the public.

The court defined “unreasonable risk” in this context as a road condition that creates a chance of injury, damage, or loss that exceeds the bounds of reason. This determination will be fact specific, and in this case, the road did not create an unreasonable risk to the health and safety of the public. Nor did the condition of the road physically interfere with the movement of traffic.

The court reversed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Aspen’s Bag Surcharge is Cost Aimed at Waste Reduction, Not Tax Subject to TABOR

The Colorado Supreme Court issued its opinion in Colorado Union of Taxpayers Foundation v. City of Aspen on Monday, May 21, 2018.

Taxation—Constitutional Law—Local Government Law.

The supreme court considered whether a $0.20 charge on paper bags is a tax subject to the Taxpayer’s Bill of Rights (TABOR). The court held that if the primary purpose of a charge is to raise revenue for the general expenses of government, the charge is a tax. Conversely, the court concluded that a charge is not a tax if the primary purpose of a charge is to defray the reasonable direct and indirect costs of providing a service or regulating an activity, because such a charge does not raise revenue for the general expense of government.

After analyzing the charge in this case, the court held that this charge is not a tax. Aspen imposed this charge as part of a regulatory program aimed at waste management, and the $0.20 charge for the right to use a paper bag bears a reasonable relationship to Aspen’s cost of permitting that use. Because this charge is a not a tax, it is exempt from TABOR’s requirements.

The court affirmed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/21/2018

On Monday, May 21, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Douglas v. Farris

Wabuyabo v. Correct Care Solutions

United States v. Servin

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

Colorado Supreme Court: Announcement Sheet, 5/21/2018

On Monday, May 21, 2018, the Colorado Supreme Court issued six published opinions.

Colorado Union of Taxpayers Foundation v. City of Aspen

City & County of Denver v. Dennis

Jim Hutton Educational Foundation v. Rein

State Farm Mutual Automobile Insurance Co. v. Fisher

People v. Ehrnstein

Parocha v. Parocha

Summaries of these cases are forthcoming.

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

Hon. Joel M. Carson Appointed to Tenth Circuit Court of Appeals

On Friday, May 18, 2018, the Tenth Circuit Court of Appeals announced the appointment of Hon. Joel M. Carson to the Tenth Circuit. Judge Carson was nominated in December 2017, and his nomination was confirmed by the Senate on May 15, 2018. Prior to his appointment, Carson was a partner at Carson Ryan LLC in New Mexico, where he specialized in oil and gas law, regulatory issues, litigation, and appellate law. He was also a part-time magistrate judge for the District of New Mexico. He received his bachelor’s degree in finance from Texas Tech University and his law degree from the University of New Mexico. His chambers will be in Roswell, New Mexico.

For more information about the appointment, click here.

Tenth Circuit: Unpublished Opinions, 5/18/2018

On Friday, May 18, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Phan v. Hipple

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

Bills Signed Enacting “Living Organ Donor Support Act,” Increasing School District Access to Technology, and More

On Wednesday, May 16, 2018, Governor Hickenlooper signed three bills into law. To date, he has signed 229 bills and sent two to the Secretary of State without a signature. The bills signed Wednesday are summarized here.

  • SB 18-158 – “Concerning Measures to Increase School District Access to Interoperable Communication Technology to Improve School Safety, and, in Connection Therewith, Making an Appropriation,” by Sens. Don Coram & Leroy Garcia and Reps. Crisanta Duran & Marc Catlin. The bill creates the school access for emergency response grant program in the division of homeland security and emergency management in the Department of Public Safety . The purpose of the grant program is to provide funding for interoperable communication hardware, software, equipment maintenance, and training to allow for seamless communications between existing school communications systems and first responder communications systems. Grant recipients may use the money received through the grant program to deliver training programs to teach effective communications with first responders in an emergency, to implement an interoperable technology solution to provide or upgrade a system for effective communication with first responders in an emergency, to maintain, improve, or provide interoperable communications hardware or software, and for any necessary radio system capacity expansions where school loading has been determined to have a significant impact on public safety system loading.
  • SB 18-262 – “Concerning Targeted Funding for Public Institutions of Higher Education to Help Achieve the Colorado Commission on Higher Education Master Plan Goals, and, in Connection Therewith, Making an Appropriation,” by Sen. Bob Gardner and Reps. Crisanta Duran & Jeff Bridges. The bill makes appropriations to the Department of Higher Education for need-based grants, student stipends, fee-for-service contracts with institutions of higher education, local district college grants, and area technical colleges.
  • HB 18-1202 – “Concerning an Income Tax Credit for an Employer Related to an Employee’s Paid Leave of Absence for the Purpose of Making an Organ Donation, and, in Connection Therewith, Enacting the ‘Living Organ Donor Support Act,'” by Rep. Alec Garnett and Sen. Bob Gardner. Beginning January 1, 2020, an employer is allowed an income tax credit that is an amount equal to 35% of the employer’s expenses incurred in paying an employee during his or her leave of absence period, which is paid leave given to an employee for the purpose of making an organ donation, but which does not exceeding 10 working days or the hourly equivalent thereof; and for the cost of temporary replacement help, if any, during an employee’s leave of absence period. An employer shall not claim a tax credit related to a leave of absence period for an employee who the employer pays wages of $80,000 or more during the income tax year.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.