July 21, 2019

Archives for April 2011

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.

Colorado River Cooperative Agreement Creates New Path for Water Management in Colorado

On Wednesday, Governor John Hickenlooper met with numerous leaders and representatives from across the state to announce a historic proposed agreement, the “Colorado River Cooperative Agreement.” This proposed agreement will fundamentally change the way water is managed throughout the state. Participants in agreement include Grand, Summit, and Eagle counties, along with Denver Water, the Colorado River District, the ski industry, and other main stem Colorado River Basin water interests.

Focused on cooperation, the proposed agreement brings parties who traditionally have been at odds concerning water rights and distribution together as partners on a path to responsible water development benefitting both the East and West Slopes.

It achieves better environmental health for the Colorado River Basin, maintains high-quality recreational use and improves economics for many cities, counties and businesses impacted by the river. The proposed agreement, which was five years in the making, will now be considered by towns, counties, and water entities from the headwaters to the Utah state line.

“This cooperative effort represents a new way of doing business when it comes to water,” said Gov. John Hickenlooper . . . “It shows that water solutions must be crafted from a statewide perspective. We hope and expect that this process will ripple across Colorado to other areas of water conflict.”

With 34 partners stretching from Grand Junction to the Denver metro area, the proposed agreement is the largest of its kind in the history of the state. In addition to its benefits for Denver Water and the West Slope, the proposed agreement will trigger a major water-sharing and conservation arrangement between Denver Water, Aurora Water and water providers in the South Denver metro area. Taken as a whole, these landmark agreements mark the most significant change Colorado has seen in how the state’s water resources are managed. . . .

The comprehensive proposed agreement focuses on significantly enhancing the environmental health of much of the Colorado River Basin and its tributaries, as well as supporting many West Slope cities, towns, counties and water providers as they work to improve the quality and quantity of water through new municipal water projects and river management initiatives. . . .

In exchange for environmental enhancements, including financial support for municipal water projects and providing additional water supply and service area restrictions, the agreement will remove opposition to Denver Water’s Moffat Collection System Project. . . .

The Colorado River Cooperative Agreement also establishes a process, dubbed “Learning by Doing,” by which Denver Water, Grand County, the Colorado River District, the Middle Park Water Conservancy District and others will use the flexibility in Denver Water’s water system to manage flows for the benefit of the environment in Grand County.

“We hope our constituents will see the proposed agreement as a win for all of us by substantially moving away from the confrontational way water has been managed in the past to a more inclusive, collaborative process that seeks the best solutions for everyone,” said Thomas Davidson, Summit County commissioner.

The full announcement from the Governor’s Office can be found here.

Tenth Circuit: Opinions, 4/28/11

The Tenth Circuit on Thursday issued no published opinions and five unpublished opinions.


Harris v. Dinwiddie

United States v. Smith

United States v. Commanche

United States v. Navarro-Flores

United States v. Jones

Colorado Court of Appeals: Announcement Sheet, 4/28/11

On Thursday, the Colorado Court of Appeals issued eight published opinions and fifty-six unpublished opinions.


People v. Duran

People v. Durapau

People v. Juarez

People v. Martinez, Jr.

People v. Coughlin

People v. Boling

Table Services, LTD v. Hickenlooper

People In the Interest of L.B. and Concerning R.B.

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

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

HB 11-1302: Creating a Program in the State Department to Train Judges in Managing Business Litigation

On April 19, 2011, Rep. Mark Waller, R-Colorado Springs, introduced HB 11-1302 – Concerning the creation of a program within the department of state for the purpose of training judges in the management of business-related litigation, and making an appropriation therefor. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a program within the department of state for the purpose of providing training to judges in managing business litigation. The bill makes an appropriation to the department of state for the implementation of the program. Assigned to the Judiciary Committee; the bill is scheduled for committee review on Tuesday, April 26 at 1:30 p.m.

Since this summary, the Judiciary Committee referred the bill unamended to the Appropriations Committee.

Summaries of other featured bills can be found here.

HB 11-1300: Waiving the Hearing Process and Allowing Direct Appeal to a District Court in Disputes with Department of Revenue over State Income Tax Credits for Perpetual Conservation Easements

On April 18, 2011, Rep. Marsha Looper, R-Calhan, and Sens. Kevin Grantham, R-Canon City, and Jeanne Nicholson, D-Gilpin, introduced HB 11-1300 – Concerning the resolution of a disputed claim for a state income tax credit for a donation of a perpetual conservation easement that includes a process that allows a taxpayer to waive an expedited administrative hearing for the purpose of appealing directly to a district court. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Taxpayers are currently allowed to claim a state income tax credit for a portion of the value of a perpetual conservation easement that the taxpayer donates. If the executive director of the department of revenue disputes the claim of the credit, a notice of deficiency, notice of rejection of refund claim, or notice of disallowance is mailed to the taxpayer, and the tax matters representative may request a hearing on the deficiency, rejection, or disallowance.

Under current law, a tax matters representative may not appeal such a notice to a district court until the hearing has been held and a final determination has been made by the executive director. Additionally, under current law, it is difficult to consolidate related claims in the administrative process for efficient and equitable resolution of conservation easement tax credit claims. There are currently a large number of disputes regarding conservation easement credit claims awaiting hearing and final determination by the executive director.

As introduced, the bill allows the tax matters representative to waive the hearing process and appeal directly to a district court. The bill further:

  • Establishes venue for the appeals in a manner that allows cases to be consolidated regionally;
  • Eliminates surety bond requirements for taxpayers who appeal directly to a district court;
  • Suspends the imposition of additional interest and penalties during the appeal for taxpayers who appeal directly to a district court;
  • Provides clearer and more effective procedures for the administrative process in order to facilitate an efficient and equitable process for all parties;
  • Establishes a process for courts to publish notices to taxpayers who cannot be located;
  • Allows claims to be consolidated and settled, and allows additional parties to intervene at the discretion of the court;
  • Specifies procedures related to discovery, case management conferences, the disclosure of information by the parties, trial management orders, and the phasing of issues to be resolved by the court.

The bill allows a tax matters representative for a currently backlogged case who does not waive the hearing process before the executive director to request a hearing and final determination by the executive director by a certain date. In the case of a tax matters representative who elects to remain in the hearing process, the executive director has the authority to consolidate related cases. The executive director is required to issue a final determination on any remaining disputes by a subsequent date. If the executive director does not make a final determination by the dates specified, the authority of the executive director to dispute the allowance of the credits shall be waived and the amount of the credit claimed by the taxpayer will be allowed. If a taxpayer fails to appear at a hearing with the executive director or fails to participate in the hearing process, the executive director may issue a final determination without further proceedings. Interest and penalties are waived for taxpayers who continue with the hearing process and pay an amount agreed upon for taxes owed by a certain date.

The executive director is further required to:

  • Provide notice to the tax matters representative and the public regarding the provisions of the bill; and
  • Report to the general assembly regarding the status of disputed conservation easement tax credits.

The state court administrator is required to report to the general assembly on the appeals brought as a result of the bill.

The bill requires the conservation easement oversight commission to review and advise the department of revenue regarding credits referred to it by the executive director by a specified date. The commission is further required to report to the general assembly regarding the conservation easements for which it has provided advice to the executive director. The bill specifies that members of the commission are immune from liability in accordance with the “Colorado Governmental Immunity Act”. On April 20, the Finance Committee amended the bill and referred it to the Appropriations Committee.

Summaries of other featured bills can be found here.

SB 11-257: Eliminating the Second Parole Period for Offenders Eligible for Discretionary Parole

On April 21, 2011, Sens. Morgan Carroll, D-Aurora, and Cheri Jahn, D-Arvada, introduced SB 11-257 – Concerning the imposition of effective parole supervision. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, an offender who is sentenced to the department of corrections is eligible for discretionary parole that would occur prior to the offender’s mandatory discharge date from the department. In addition, the offender has a period of mandatory parole that is imposed by the court and is served after the completion of the sentence. The bill would eliminate the second parole period, the statutory mandatory parole sentence, for offenses committed on or after July 1, 2011, and leave the remaining discretionary parole period. As a result, the parole board would impose any period of parole during the offender’s sentence to the department. The offender would apply for parole, and the board would determine whether to grant parole under the existing statutory scheme; except that, if the offender’s parole hearing is within 15 months of his or her mandatory release date, then a majority vote of the board would be required to deny parole. An offender could not waive a parole hearing except for good cause shown. If an offender refuses to attend a parole hearing without good cause, the offender would serve the court-imposed sentence plus a period of mandatory supervised release up to 24 months after the offender has been discharged. Assigned to the Judiciary Committee, the bill is not listed on the printed calendar.

Summaries of other featured bills can be found here.

SB 11-254: Creating Criteria for When a Person Sentenced to Community Corrections May Be Considered for Early Termination of the Sentence

On April 21, 2011, Sen. Pat Steadman, D-Denver, and Rep. Sal Pace, D-Pueblo, introduced SB 11-254 – Concerning statutory changes to improve practices for persons under community supervision. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill permits time credit for nonresidential community corrections programs.

The bill creates criteria for when a person sentenced to a community corrections sentence may be considered for early termination of his or her sentence. When the person meets the criteria, his or her probation officer must submit a petition for early termination to the court and notify the district attorney and defendant. The court then decides the petition based on the statutory criteria. Assigned to the Judiciary Committee, the bill is not listed on the printed calendar.

Since this summary, the Judiciary Committee referred the bill amended – consent calendar to the Senate Committee of the Whole.

Summaries of other featured bills can be found here.

Tenth Circuit: Opinions, 4/27/11

The Tenth Circuit on Wednesday issued no published opinions and seven unpublished opinions.


United States v. Miller

Bland v. Astrue

Schmitt v. Rice

Kozel v. Duncan

United States v. Mouille

Skehen v. Soos

Francis v. Standifird

SB 11-256: Allowing a Graffiti Offender to Be Charged with Defacing Property Based on Aggregate Damage Caused over Multiple Criminal Episodes

On April 21, 2011, Sens. Lucia Guzman, D-Denver, and Steve King, R-Grand Junction, and Reps. Mark Ferrandino, D-Denver, and James Kerr, R-Ken Caryl, introduced SB 11-256 – Concerning graffiti. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows an offender to be charged with defacing property based upon the aggregate cost of the damage that he or she causes over multiple criminal episodes.

The department of transportation is authorized to enter into a memorandum of understanding with a city, county, city and county, or other municipality to allow the city, county, city and county, or other municipality to remove graffiti from a departmental facility at the expense of the city, county, city and county, or other municipality. Assigned to the Judiciary Committee, the bill is not listed on the printed calendar.

Since this summary, the Judiciary Committee referred the bill unamended – consent calendar to Senate Committee of the Whole.

Summaries of other featured bills can be found here.

Colorado Supreme Court to Hear Oral Arguments at Ralston Valley High School on Friday

This Friday, April 29, 2011, the Colorado Supreme Court will hear oral arguments in two cases at Ralston Valley High School in Arvada before an audience of students. All seven justices will hear arguments together in actual cases from which they will issue opinions. The public is also invited to attend, though space is limited.

The visit is part of the Colorado Judicial Branch’s Courts in the Community outreach program. The program, in which the Colorado Supreme Court and Court of Appeals hear arguments at various Colorado schools, was initiated on Law Day 1986 and is entering its twenty-fifth year. The program was developed to give Colorado students firsthand experience in how the Colorado judicial system works and illustrate how disputes are resolved in a democratic society.

The two cases are:

  • 09SC1050, Air Wisconsin Airlines v. William L. Hoeper: Air Wisconsin Airlines has asked the Colorado Supreme Court to review a Court of Appeals opinion upholding a jury verdict against the company. Mr. Hoeper was a pilot for Air Wisconsin when he became angry during a flight simulator proficiency test and quit the test. Mr. Hoeper, a member of a federal program authorizing some pilots to carry firearms, was then sent to the airport to catch a flight back to Colorado as a passenger. Airline officials decided to report his behavior to the federal Transportation Security Administration, saying they had concerns about his “mental stability” and did not know whether he had his firearm with him. Mr. Hoeper sued the airline, saying officials defamed him in their report to TSA, and the jury awarded Mr. Hoeper more than $1 million in damages. The Colorado Supreme Court has agreed to review the case to examine three issues: whether the trial judge, rather than the jury, should have decided if federal law gave the airline qualified immunity for reporting concerns to the federal Transportation Security Administration; whether the evidence at trial showed the airline’s report to TSA was made with “actual malice,” as required for certain defamation claims; and whether the airline’s statements to TSA were false statements of fact and therefore not protected by the First Amendment.
  • 10SC94, Denver Post and Karen Crummy v. Bill Ritter: The Denver Post, in gathering information for a news story, asked then-Gov. Bill Ritter to provide billing statements including call logs for his personal cell phone, which he used for most of his business calls. When he refused, the newspaper sued under the Colorado Open Records Act (CORA), arguing the statements were public record, even though the calls were made and received on a phone Mr. Ritter paid for himself. A trial judge granted Mr. Ritter’s motion to dismiss the case, and the Colorado Court of Appeals affirmed that decision. The Colorado Supreme Court has agreed to review whether the Court of Appeals was mistaken in concluding that Mr. Ritter’s personal cell phone billing statements were not public record subject to disclosure under CORA.

Documents from the two cases can be found here.

The proceedings will begin at 8:30 a.m. on Friday in the auditorium at Ralston Valley High School, located at 13355 W. 80th Ave., Arvada, CO 80005. A question-and-answer session will follow each case, during which the students can ask questions of the attorneys delivering the arguments. At the conclusion of the second argument, the students will also have the opportunity to participate in a question-and-answer session with the Supreme Court justices.

Audio recordings from the two arguments will be available online within one to two days of the arguments. The court generally issues opinions within a few months of the arguments.

Governor Hickenlooper Signs Three More Bills into Law

On Tuesday, three more bills reached Governor John Hickenlooper’s desk and were signed into law. The bills were the fifteenth group to emerge from the 2011 General Assembly.

  • SB 11-119
    • Sponsored by Sen. Guzman and Rep. Pabon. Changes to the requirement of any petitioner appealing a valuation of income-producing non-residential real property.
  • SB 11-183
    • Sponsored by Sen. Aguilar and Reps. Bob Gardner and Looper. Requires the Governor to include a person with a disability, a family member of a person with a disability, or a member of an advocacy group for persons with a disability on the State Board of Housing, the Medical Services Board, and the State Board of Human Services.
  • HB 11-1216
    • Sponsored by Reps. Riesberg  and Gerou and Sen. Aguilar. Creates the Laura Hershey Disability-Benefit Support Act, and subject to available moneys, establishes a program to award state contracts to one or more non-profit organizations that assist disabled persons with obtaining benefits.

For a complete list of Governor Hickenlooper’s 2011 legislation decisions click here.