October 24, 2017

Governor Hickenlooper Announces Appointments to Private Activity Bond Allocations Committee and Utility Consumer’s Board

On Thursday, Governor John Hickenlooper announced his appointments to the Private Activity Bond Allocations Committee and the Utility Consumer’s Board.

The Private Activity Bond Allocations Committee reviews requests and makes recommendations to the Executive Director of the Colorado Department of Local Affairs on the distribution of industrial development bonds. The member appointed is:

  • Lon S. Carpenter, of Grand Junction, to represent citizen-at-large, west of the Continental Divide; term to expire July 1, 2014.

The Utility Consumers’ Board provides policy guidance to the Office of Consumer Counsel regarding rule-making, legislative projects, and general activities of the office. The board works to represent the interests of residential, agricultural, and small business users of Colorado utilities. The members appointed are:

  • Dian P. Callaghan, of Denver; term to expire July 1, 2015.
  • Marla A. Rock, of Wray; term to expire July 1, 2015.
  • Stephen Lawrence Merrill, of Colorado Springs; term to expire July 1, 2015.
  • Alan Kent Logan, of Canon City; term to expire July 1, 2015.
  • Laurie Tebo, of Divide; term to expire July 1, 2015.

The full press release from the Governor’s office concerning these board and commission appointments can be found here.

DORA Office of Outfitters Amends Rules Regarding the Regulation of Outfitters

The Department of Regulatory Agencies’ Office of Outfitters has amended rules regarding the licensing and regulation of Outfitters. Outfitters are individuals soliciting and providing, for compensation, outfitting services for the purpose of hunting or fishing on land that such individuals do not own; such services include providing:

  • transportation of individuals and supplies;
  • facilities like tents and cabins; and
  • camp gear and food.

Additionally, Outfitters’ services include guiding, leading, protecting, supervising, instructing, or training persons in the take of wildlife.

The revised rules reflect an effort to “determine if each rule promotes a balanced and sensible approach to regulation that protects the public interest while supporting economic growth for the regulation of Outfitters.” The review and amendment of the rules was conducted to ensure that each rule is still applicable given Governor Hickenlooper’s initiative of effective, efficient, and elegant government.

The complete text of the proposed rules changes can be found here.

A hearing on the amended rules will be held on Tuesday, July 26, 2011, at Hotel Colorado, 526 Pine Street, Glenwood Springs, Colorado 81602, beginning at 10:00 am.

Further information about the rules and hearing can be found here.

Department of Revenue Amends Rule Regarding Colorado Lottery’s “Raffle Draw #3”

The Department of Revenue has amended a rule regarding the Colorado Lottery Jackpot Game “Raffle Draw #3.” The revised rule, Rule 10.H, will provide the general rules and requirements for the Colorado Lottery Jackpot game known as Raffle Draw #3, such as the sale of tickets, method of selecting winning numbers, payment of prizes, and allocation of revenues.

The full release concerning the proposed rule and statutory authority can be found here.

A hearing on the amended rule will be held on Wednesday, August 10, 2011, at 212 W. 3rd Street, Suite 210, Pueblo, Colorado 81003, beginning at 8:00 am.

Further information about rule and hearing can be found here.

Colorado Court of Appeals: Under Colorado Consumer Protection Act Analysis, Whether a Deceptive Trade Practice Had a Significant Impact on Customers Is a Question of Fact

The Colorado Court of Appeals issued its opinion in One Creative Place, LLC v. Jet Center Partners, LLC on May 26, 2011.

Colorado Consumer Protection Act—Question of Law Versus Fact.

To establish a claim under the Colorado Consumer Protection Act (CCPA), a private citizen must prove five elements, one of which is that the deceptive trade practice had a significant impact on the public as actual or potential customers of the defendant’s business. This appeal questioned whether this element is an issue of law or a question of fact. The Court of Appeals held it is a question of fact. As a result, the Court’s review was limited to whether the trial court committed clear error by finding that the intervenor, Jet Center Partners, LLC, had not proved this element. Because the Court concluded the trial court did not commit clear error, it affirmed the judgment in favor of plaintiffs.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 26, 2011, can be found here.

Bankruptcy Court: Colorado Homestead Exemption Should Be Liberally Construed

The U.S. Bankruptcy Court for the District of Colorado issued its opinion in In re Elliot on Thursday, May 12, 2011.

11 U.S.C. § 522 (b)(1) and (3), C.R.S. § 38-41-207.

Trustee objected to Debtor’s claim of “homestead proceeds” exemption for surplus funds from public trustee’s foreclosure sale of Debtor’s former residence which were held in a segregated bank account. Though Colorado’s exemption statute for homestead proceeds explicitly refers only to proceeds from sale by owner or sale following levy and execution, the Court predicted that the Colorado Supreme Court would liberally construe the statute to apply to proceeds from public trustee sale. Debtor’s exemption was upheld.

Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.

Denver County Court Issues Standing Order Regarding Procedures for Pattern Interrogatories and Answers

This month, Presiding Judge John M. Marcucci of the Denver County Court issued a Standing Order for Interrogatories pursuant to Colorado Rules of County Court Civil Procedure Rule 369. The order changes motion and filing requirements for Judgment Creditors and Debtors. Judgement Creditors may propound Pattern Interrogatories without further motion or order from the court and Judgement Debtors need only forward their Answers to Interrogatories to the Creditor and not file them with the court.

IT IS HEREBY ORDERED that when a party has obtained a judgment against the opposing party in a civil action in the Denver County Court and thereby becomes a Judgment Creditor; that the Judgment Creditor may propound Pattern Interrogatories to the Judgment Debtor without further motion or order from the Court, pursuant to Rule 369, C.R.C.P. and this Order;

FURTHER, the Judgment Debtor’s Answers to Interrogatories shall be forwarded to the Judgment Creditor only and said Answers shall not be filed with the Court by the Judgment Debtor.  Interrogatories shall include in the instructions that:

“JUDGMENT DEBTORS ARE TO FILE THEIR ANSWERS WITH ONLY THE JUDGMENT CREDITOR AND NOT THE COURT.”

FUTHER, Court Clerks issuing specifically Court approved Non-Pattern Interrogatories pursuant to Rule 369, C.R.C.P., shall deliver a copy hereof to the Judgment Creditor for service with the Interrogatories;

FURTHER, all Motions for Contempt Citations for failure to properly answer said Interrogatories shall be in compliance with Rule 407(c) C.R.C.P.  A Motion and Order for Contempt Citation, along with the Show Cause Citation itself are to be filed with the Court for issuance.  A copy of the Answers to Interrogatories, if any, and a proper return of service for the Interrogatories shall be included with said Motion.

FINALLY, the ORDER OF THE DENVER COUNTY COURT PRESIDING JUDGE, dated March 21, 2008, is hereby repealed.

A copy of the official signed order may be viewed here.

Tenth Circuit: Defendant Deficient on Rent Has No Reasonable Expectation of Privacy to Counter a Warrantless Entry

The Tenth Circuit Court of Appeals issued its opinion in United States v. Creighton on Thursday, May 12, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner, in an effort to support his and others’ drug habits, stole large quantities of personal mail from apartment buildings and condominiums in the Denver metro area. Petitioner used the information obtained to generate false identifications and counterfeit checks, which were passed to local businesses. Over the eighteen month course of the scheme, Petitioner had four run-ins with the police, three of which uncovered the evidence at issue in his appeal. Petitioner claims that the evidence garnered during his arrests was produced in violation of the Fourth Amendment. However, the Court determined that the record supports the district court’s conclusion that the police’s inventory search of Petitioner’s luggage was undertaken pursuant to “standard criteria or established routine,” and thus “sufficiently regulated” so as to serve the purposes of a legitimate inventory search. Additionally, the Court concluded that evidence garnered from the warrantless entry into Petitioner’s room, in which incriminating evidence was in plain sight and led to his arrest, was not improper. Petitioner was on notice that rent was overdue and that he must pay or vacate the premises; Petitioner did not have a reasonable expectation of privacy under the circumstances.

SB 11-271: Prohibiting Deceptive Solicitation of Orders for Retail Florist Services

On May 2, 2011, Sen. Brandon Shaffer, D-Boulder, and Rep. Sal Pace, D-Pueblo, introduced SB 11-271 – Concerning the prohibition of deceptive trade practices in the solicitation of orders for retail florist services. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As introduced the bill makes it a deceptive trade practice to solicit retail orders for florist services without disclosing relevant information including the amount of any fee or surcharge added by the person soliciting the order and the true name, physical address, and local telephone number of the florist who will fill the order. The bill was introduced Monday, May 2, approved by the Judiciary Committee on Wednesday, May 4 and passed second reading on Friday, May 6.

Since this summary, the bill passed its Third Reading in the Senate.

Summaries of other featured bills can be found here.

CLE: AT&T Mobility LLC v. Concepcion and the Future of Class Actions

Just this Wednesday, the Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, greatly impacting the ability of plaintiffs to pursue class proceedings. In a 5-4 decision, the Court overruled the California Supreme Court’s holding in Discover Bank v. Superior Court that class-arbitration waivers in consumer contracts were unconscionable and unenforceable.

For the majority, Justice Scalia wrote:

Because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941), California’s Discover Bank rule is preempted by the [Federal Arbitration Act].

Justice Thomas concurred, but argued that contract defenses allowed for under § 2 of the FAA should be limited to defenses related to the formation of the arbitration agreement, such as fraud, duress, or mutual mistake. Arbitration agreements should not be invalidated on the basis of defenses that do not relate to the formation of the agreement, such as public policy.

In his dissent, Justices Breyer disagreed with Justice Scalia’s assertion that Discover Bank defeated the purposes of the FAA.

[I]nsofar as we seek to implement Congress’ intent, we should think more than twice before invalidating a state law that does just what § 2 requires, namely, puts agreements to arbitrate and agreements to litigate “upon the same footing.”

CLE Program: May 10, 2011, 11:30am

Join us on Tuesday, May 10, at 11:30 am for a discussion of the case and its potentially far-reaching implications. Register for the live event or the live webcast. The program will also be available as a homestudy in two formats: MP3 download and online video.

SB 11-249: Setting the Statutory Time Limit for Commencing Certain Civil Actions to Six Years

On April 21, 2011, Sen. Lois Tochtrop, D-Thornton, and Rep. Bob Gardner, R-Colorado Springs, introduced SB 11-249 – Concerning the statutory time limit for commencing certain civil actions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires all actions to recover a debt for services rendered, money lent, money paid, money had and received, goods sold and delivered, or open or book account or account stated to be commenced within 6 years after the cause of action accrues. Assigned to the State, Veterans & Military Affairs Committee; the bill is scheduled for committee review on Wednesday. April 27 at 1:30 p.m.

Summaries of other featured bills can be found here.

HB 11-1292: Authorizing Reliance on Electronic and Paper Forms Provided by State Government

On March 30, 2011, Rep. Bob Gardner, R-Colorado Springs, introduced HB 11-1292 – Concerning the use of forms established by state government. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill authorizes a person to rely on forms provided by state government. The bill authorizes the attorney general and district attorneys to use electronic or paper forms in connection with consumer protections, unfair trade practices, antitrust matters, and charitable solicitations. Assigned to the Judiciary Committee; the bill is not listed on the printed calendar.

Summaries of other featured bills can be found here.

HB 11-1139: Prohibit Collection of Debt in Default from Debtor’s Personal Liability Unless First Attempted to Collect from Collateral

On January 24, 2011, Rep. James Kerr, R-Ken Caryl, introduced HB 11-1139 – Concerning a limitation on a lender’s ability to collect against a debtor’s personal liability when the loan is secured by collateral. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits a creditor of a consumer loan and a credit union,  savings and loan association, state bank, industrial bank, or mortgage lender from attempting to collect its debt from a debtor’s personal liability under a secured loan that is in default unless the lender has first attempted to collect its debt from the collateral and the proceeds from the collateral are insufficient to fully repay the sum of the outstanding loan balance and the lender’s allowable costs of collection, if any. On February 17, the Judiciary Committee heard testimony and took the bill off the table; the bill will return to the Judiciary Committee for “action only.”

Summaries of other featured bills can be found here.