May 18, 2012

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Colorado Supreme Court: Denying Change of Water Right for Failing to Prove Historic Use Does Not Amount to Unconstitutional Taking of Property

May 16, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in Concerning the Revised Abandonment List of Water Rights in Water Division 2 and Concerning the Protest of Thorsteinson in Pueblo County: Harrison v. Simpson, State Engineer; Concerning the Application for Change of Water Right of Harrison, Personal Representative: Harrison v. St. Charles Mesa Water District on May 14, 2012.

Water Law—Change of Diversion Point—Stipulation—Unconstitutional Taking—Abandonment of Right.

John Harrison appealed directly to the Supreme Court from adverse rulings of the Water Court for Water Division No. 2 in two separate cases. With regard to Harrison’s Application for a Change of Water Right, the water court granted the State Engineers’ motion to dismiss at the close of Harrison’s case. The water court found that he was required, but failed, to establish the historic use of the right, to which he sought a change in the point of diversion. With regard to Harrison’s protest to the inclusion of the interests he claimed in the Mexican Ditch on the Division Engineer’s decennial abandonment list, the water court granted the Engineer’s motion for abandonment, as a stipulated remedy for Harrison’s failure to succeed in his change application.

The Court affirmed the water court’s dismissal of Harrison’s application, holding that (1) Harrison neither proved historic use of the right for which he sought a change nor was excepted from the requirement that he do so as a precondition of changing its point of diversion, and (2) denying a change of water right for failing to prove the historic use of the right does not amount to an unconstitutional taking of property. The Court reversed the water court’s order granting the Engineers’ motion for abandonment, because Harrison did not stipulate to an order of abandonment as the consequence of failing to succeed in his change application, but only as the consequence of failing to timely file an application reflecting historic use, a condition with which he complied.

Summary and full case available here.

Colorado Supreme Court: Denying Change of Water Right for Failing to Prove Historic Use Does Not Amount to Unconstitutional Taking of Property

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Colorado Supreme Court: Prosecutorial Work Product Exception Protects from Compelled Disclosure All Opinion Work Product Prepared by Prosecution in Anticipation of Any Criminal Prosecution

May 16, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in In re People v. Angel on May 14, 2012.

Rules of Criminal Procedure—Discovery—Prosecutorial Work Product.

The Supreme Court determined that Crim.P. 16(I)(e)(1) protects against the disclosure of a prosecutor’s opinion work product, and made the rule absolute. The Court reversed the district court’s discovery order and held that the prosecutorial work product exception under Crim.P. 16(I)(e)(1) protects from compelled disclosure all opinion work product prepared by the prosecution in anticipation of any criminal prosecution. The Court remanded the case to the district court to determine, through an in camera, ex parte review, whether the contested materials contain protected prosecutorial opinion work product.

Summary and full case available here.

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Colorado Supreme Court Authorizes Transfer of Surplus Attorney Registration Funds to Colorado Legal Services

May 11, 2012 By Leave a Comment

On Friday, May 11, 2012, the Colorado Supreme Court announced that it has voted unanimously to transfer $750,000 in 2012, and another $750,000 in 2013, from the Court’s attorney registration fund to Colorado Legal Services.

Colorado Legal Services will use the funds to further its mission of providing pro bono legal services in civil matters to Colorado’s indigent population.

“Our profession has an obligation to serve all of Colorado, including those who cannot afford to pay a lawyer for representation in civil matters,” Chief Justice Michael L. Bender said.

Chief Justice Bender also noted that none of the monies being transferred come from taxpayer dollars or will have any future impact on taxpayers.

“The funds being made available to Colorado Legal Services come solely from fees paid to the Court’s Office of Attorney Registration,” he said.  “I believe all Colorado attorneys should see this as a wise use of resources to ensure procedural fairness prevails for all who come to the courts seeking assistance.”

The Supreme Court took the transfer request under advisement earlier this year when approached by the Colorado Bar Association and the Colorado Access to Justice Commission.  The Court found the attorney registration fund had a surplus and concluded that using some of the money for this purpose would have no negative impact on the Office of Attorney Registration or Office of Attorney Regulation.

Colorado Legal Services is a flagship provider of civil legal services and in the past few saw a significant downturn in its funding sources.  Without the Court’s authorization to transfer the monies, Colorado Legal Services would have been forced to close some of its offices and lay off numerous staff members.

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Colorado Supreme Court: Week of May 6, 2012 (No Opinions)

May 8, 2012 By Leave a Comment

The Colorado Supreme Court issued no opinions for the week of May 6, 2012.

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Colorado Court of Appeals: Office of Attorney Regulation Counsel is Part of Judicial Branch and Is Not Subject to the Colorado Open Records Act

May 2, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Gleason, Supreme Court Regulation Counsel v. Judicial Watch, Inc. on April 26, 2012.

Colorado Open Records Act—Colorado Judicial Branch.

Both petitioner, the Supreme Court Regulation Counsel, and the Office of Attorney Regulation Counsel (collectively, regulation counsel) and respondent, Judicial Watch, Inc., appealed the trial court’s order granting most of respondent’s request for records and denying the rest. The order was affirmed in part and reversed in part, and the case was remanded.

Judicial Watch requested that regulation counsel grant it access to certain records under the Colorado Open Records Act (CORA). The records pertained to the appointment of regulation counsel by the Chief Justice of the Colorado Supreme Court, at the request of the Chief Justice of the Arizona Supreme Court, to investigate the conduct of lawyers in Arizona. Regulation counsel denied Judicial Watch’s request.

Regulation counsel asserted that the trial court erred in granting any of Judicial Watch’s request for records. Regulation counsel is subject to the direction of the Supreme Court, and participates in the process of regulating attorneys. Thus, regulation counsel is part of Colorado’s Judicial Branch of government. CORA does not include the judiciary within the terms “state” and “state agency.” Because regulation counsel is part of the Judicial Branch, it likewise is not part of the state or a state agency for the purposes of CORA. Therefore, the trial court erred when it concluded that CORA governed Judicial Watch’s request for regulation counsel’s records and that those records must be disclosed under CORA. The case was remanded to the trial court to enter an order denying Judicial Watch’s entire request.

Summary and full case available here.

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

April 30, 2012 By Leave a Comment

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.

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

April 30, 2012 By Leave a Comment

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.

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

April 30, 2012 By Leave a Comment

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.

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

April 30, 2012 By Leave a Comment

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.

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Introducing the New Commission and Proclaiming October 2012 Legal Professionalism Month

April 25, 2012 By Leave a Comment

When I became Chief Justice in December 2010, I wanted to bring together the three major groups of the legal profession—the bar, the judiciary, and the legal academy—to better address the needs of the community in which we all serve. In the hopes of achieving this vision, in February 2011, I formed the Chief Justice’s Commission on the Legal Profession (Commission) to focus on four primary goals:

  1. improving the training of law students to help them better appreciate the vital role that attorneys play in our society;
  2. increasing the training of and providing more support for new lawyers;
  3. facilitating communication and cooperation between and among judges and attorneys; and
  4. encouraging the entire bar to recognize the broad legal needs of our community and improving public attitudes toward the profession through a renewed dedication to pro bono service.

Ultimately, I hope the Commission will serve as a forum for judges, attorneys, and legal educators to develop ideas that might eventually lead to legislation, rules, or substantive changes in law school curricula to better address the needs of the legal profession and our community as a whole.

The Commission, which meets quarterly, is comprised of practicing lawyers from various specialties, the deans of the University of Denver Sturm College of Law (DU) and University of Colorado Law School (CU), and appellate and trial judges from across the state. From this group, we formed four working groups to focus on each of the goals set forth above.

Working Group A: Legal Education

For the past year, Working Group A has sought to address the development of professional identity, social responsibility, and practice skills in law students and to increase the involvement of judges and bar leadership within our two law schools. To this end, it has worked closely with CU and DU to develop an annual event that will introduce law students to the concepts of professionalism and social responsibility.

We are excited to announce that the inaugural event—entitled “For This We Stand”—will take place on September 22, 2012. This two-part event will bring firstyear law students together in Denver from both Colorado law schools. The students will congregate in the Denver Athletic Club’s Grand Ballroom for remarks about the profession of law and the importance of practicing with professionalism. Sharing with me the honor of addressing the students will be U.S. District Court Judge Marcia Krieger, Colorado Court of Appeals Judge Russell Carparelli, and CBA 2012–13 President Mark Fogg.

Following the presentations, the students will break into smaller groups and go to the Denver City and County Building, where they will meet in a courtroom with a judge, a lawyer, and a former client. There, they will hear stories about the positive impact the profession can have on the lives of clients and society.

The conclusion of the event will be interactive. The students will participate in discussions about the vital role that reputation and relationships play in achieving a successful and fulfilling career.

Working Group B: Newly Admitted Attorneys

When the Commission first met, it identified the mentoring of new lawyers as the most pressing need in the legal community. Working Group B, in partnership with the CBA and Denver Bar Association (DBA), have been addressing the development of professional identity and social responsibility for newly admitted attorneys through mentoring programs.

Statewide Mentoring Program

A pilot study was initiated and a model for a prospective statewide program was developed by the CBA to assist several local bar associations, the law schools, the Yasui Inn of Court, the Colorado Hispanic Bar Association, and the Adams County District Attorney’s Office. Mentors and mentees earn fifteen CLE credits, including two ethics credits, for participating in the one-year program. The CBA has provided necessary staffing for the program.

The DBA’s mentoring program, which began more than two years ago and has more than seventy mentor and mentee pairings, has provided valuable background information for the pilot study. CU has a unique program that matches a mentor attorney, a mentee attorney, and a law student to jointly handle a pro bono case.

Working Group B and the mentor program standing committee will make recommendations to the Commission about funding and the hiring of an executive director. It is looking into expanding the program statewide.

Colorado Lawyers for Colorado Veterans

Working Group B, again in partnership with the CBA and local bar associations, also has worked to increase community outreach and opportunities for new and seasoned attorneys to engage in community service. The creation of Colorado Lawyers for Colorado Veterans, which the CBA has been instrumental in coordinating, is an outcome of this effort.

Colorado Lawyers for Colorado Veterans kicked off its efforts on Veterans Day 2011 with pro bono clinics in Denver, Colorado Springs, and Fort Collins. At its Veterans Day event, the Denver clinic accepted fifty-five cases. It has taken nearly 100 additional cases since then. As a result of the success of the first event and the continued demand within the community, the Denver clinic has begun to hold an event on the second Tuesday of each month and plans to continue the tradition of holding a larger annual event on Veterans Day. Colorado Lawyers for Colorado Veterans also is planning to conduct clinics in Pueblo, Alamosa, Colorado Springs, and Fort Collins, and at CU’s Boulder campus.

Finally, the group hopes to expand its efforts so it can provide monthly clinics at DU, as well as in Grand Junction and Durango. I am especially excited about this program, which provides our veteran heroes vital pro bono services while also increasing the opportunities for attorneys to engage with our community. If you are interested in supporting or participating in Colorado Lawyers for Colorado Veterans, please contact John Vaught at vaught@wtotrial.com or Ben Currier at benc@m-s-lawyers.com.

Working Group C: Bench and Bar Cooperation

The goal of Working Group C is to identify and implement strategies to facilitate communication and professionalism between and among judges and lawyers. Working Group C members have met with leaders of our many bar organizations and Inns of Court to explore ways to foster professional relationships and promote a collaborative culture of civility and respect.

As a result of this input, Working Group C has determined that one way to bring increased awareness to these vital issues is to establish an annual Legal Professionalism Month. Accordingly, CBA President David Masters, the Chief Justice’s Commission on the Legal Profession, and I proclaim the month of October 2012 to be Legal Professionalism Month.

As explained in the Proclamation (which appears at the end of this article), October 2012 will be a month for attorneys and judges to rededicate themselves to the importance of public service and community outreach. There will be professionalism events and pro bono activities throughout the month.

Legal Professionalism Month will culminate in “The Assembly of Lawyers” on the afternoon of October 29, 2012, at the Boettcher Concert Hall. This event, which will immediately precede the swearing-in ceremony for new attorneys, is intended to bring together lawyers from across the state to reflect on the importance of service in our profession. Although this event is still in the planning stages, we intend to grant CLE credit for attendance and expect to include an influential speaker on the subject of legal professionalism. Afterward, the assembled attorneys in Boettcher Hall will be joined by the newly admitted attorneys for a special session of the Colorado Supreme Court to administer the Attorney’s Oath. By their presence, the assembled lawyers will make visible the fact that we welcome the new attorneys into our great profession.

Working Group D: Outreach to the Community

Working Group D has focused its efforts on supporting the profession’s culture of service and increasing access to justice. To this end, Working Group D has reached out to and begun to collaborate with organizations such as the Colorado Access to Justice Commission, Colorado Legal Services, and Make History Colorado. This group has recognized that pro bono opportunities serve to benefit the community at large and provide fertile training ground for new lawyers to obtain trial experience. Collaboration in pro bono activities also could serve as a way to bond mentors and mentees through joint participation and representation.

Consistent with the recommendations of the Colorado Access to Justice Commission, Working Group D has focused on encouraging members of the private bar, government attorneys, in-house counsel, and newly licensed lawyers to increase their participation in pro bono representation. The members of this group plan to meet with the managing partners of metro area law firms to discuss how to remove existing barriers to pro bono service and to explore the viability of collecting pro bono data as an incentive to increase participation. Additionally, Working Group D will continue to publicize and advance the efforts of Make History Colorado and to collaborate with the CBA on its work with pro bono and unbundled legal services. Finally, following the successful model of the Adams County pro se Self-Help Center,1 Working Group D plans to identify additional sources of funding to establish self-help centers across the state.

Galvanizing Professionalism

After a productive and inspiring inaugural year, several prominent themes have emerged from the Commission’s work. I believe our profession has been and continues to be a positive force for society. However, at times—in the face of economic and professional pressures, for example—we have lost our way.

Accordingly, I believe that now is the time for each of us to renew our efforts to the legal profession through increased civility toward one another and by instilling these values in law students and new lawyers. Finally, we must rededicate ourselves to the service of society, including the most vulnerable among us. To galvanize and focus these efforts, CBA President David Masters, the Chief Justice’s Commission on the Legal Profession, and I proclaim the month of October 2012 to be Legal Professionalism Month.

Note

1. The Self Help Resource Center at the Adams County Justice Center is available at www.courts.state.co.us/Courts/District/Custom.cfm?District_ID=17&Page_ID=335. See also “Online Pro Se Resources” at www.courts.state.co.us./Self_Help/proSeResources.cfm.
Proclamation: Declaring October 2012 Legal Professionalism Month In the State of Colorado

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.

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Governor Hickenlooper Announces More Judicial Nominating Commission Appointments

April 24, 2012 By Leave a Comment

On Tuesday, April 24, 2012, Governor John Hickenlooper announced several Board and Commission appointments, including a few more appointments to Judicial Nominating Commissions around the state:

The Third Judicial District Judicial Nominating Commission selects nominees for district and county judicial vacancies. The commission is chaired by a justice of the Supreme Court, who is a non-voting member of the commission and consists of seven citizens residing in that judicial district. The members appointed for terms expiring December 31, 2017:

  • James S. Colt of Trinidad, to serve as a non-attorney and as a Republican member from Las Animas County.
  • Raymond M. McMillan of Trinidad, to serve as a non-attorney and as a Democrat member from Las Animas County.
  • Sisto J. Mazza of Trinidad, to serve as an attorney and as a Democrat member from Las Animas County.

The Supreme Court Judicial Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. The member appointed for a term expiring December 31, 2017:

  • Scott C. Johnson of Greeley, to serve as an attorney and as an Unaffiliated member from the Fourth Congressional District.
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Colorado Supreme Court: C.R.C.P. 4(d) Does Not Establish Service According to International Agreement as Exclusive Means of Serving Defendant Located in Foreign Country

April 23, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in In re Willhite v. Rodriguez-Cera on April 23, 2012.

Civil Procedure—Service of Process—Hague Service Convention.

The trial court issued an order quashing substituted service in Colorado on the sister of a defendant residing in Mexico. After previously granting substituted service under C.R.C.P. 4(f), the trial court determined that C.R.C.P. 4(d) requires that service on a defendant located in a foreign country be made according to international agreement. Because Mexico and the United States are parties to the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, the trial court concluded that plaintiff must serve defendant Rodriguez-Cera via the Hague Service Convention.

The Supreme Court held that C.R.C.P. 4(d) does not establish service according to international agreement as the exclusive means of serving a defendant located in a foreign country. The Court further held that C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and does not prohibit a plaintiff from serving a defendant within the United States if otherwise authorized. The Court held that substituted service in accordance with C.R.C.P. 4(f) provides a valid alternative to service abroad. Although the Hague Service Convention is implicated whenever state law requires the transmittal of documents abroad to effectuate service, the Court concluded that the transmittal of documents abroad is not necessary to effectuate service under C.R.C.P. 4(f); therefore, the Hague Service Convention was not implicated.

Summary and full case available here.

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