August 20, 2019

Archives for May 24, 2011

Senior Law Day Receives National Recognition

Congratulations to the CBA and CBA-CLE volunteers and staff who make Senior Law Day happen each year. The public service and education initiative is the 2011 recipient of the LexisNexis Community & Educational Outreach Award, which honors bar associations that have demonstrated commitment to outstanding public service or law-related public education.

Senior Law Day educational events take place around the state, allowing Colorado’s seniors access to an extensive array of resources on aging, including the updated Senior Law Handbook, which is published by CBA-CLE.

The largest event takes place in Denver County on July 23, 2011, at the Merchandise Mart. If you are interested in exhibiting, please contact Nicoll Stapleton at

You can read the CBA press release in full here:

DENVER— The National Association of Bar Executives (NABE) has honored the CBA Senior Law Day program with the 2011 LexisNexis Community & Educational Outreach Award.

Each year, the NABE honors bar associations that are committed to and performed outstanding public service or law-related public education with the LexisNexis Community & Educational Outreach Award. The award evaluates the program based on the overall quality, effectiveness, adaptability, and degree of innovation and originality of the program along with the scope, importance, and duration of benefits derived by the target audience.

Senior Law Day is a free, annual education seminar specifically designed help seniors, their adult children, and caregivers navigate the myriad changing laws, issues and relationships facing this growing population. By providing information and resources on legal concerns and topics, these workshops enable seniors to address their individual needs.

Taught by attorneys and other professionals in the field of elder care, more than thirty topics are discussed at the seminars. Workshops include the latest developments in Medicare, Medicaid, Family Relationships, Estate Planning, Assisted Living and Nursing Home Issues, Hospice and Palliative Care, Guardianship for Adults, Lifelong Learning and the Aging Brain, and Veterans’ Benefits. Attendees also receive a comprehensive handbook written in clear, plain language with further information on the topics. Colorado Bar Association and Colorado Bar Association CLE now organize the main event and partners with many other Colorado organizations, companies, individual attorneys, and law firms to provide this valuable learning experience.

Since the University of Denver Sturm College of Law started the program in Denver in 1999, the program has grown from approximately 300 attendees at the initial Senior Law Day in Denver, to more than 2,000 in attendance today. The event is held in several locations around the state including Boulder County, Colorado Springs, Denver, Durango, Jefferson County, Larimer County and Pueblo.

This summer, the public will have several opportunities to attend a Senior Law Day program. Scheduled events are for Jefferson County on June 11at the WaterStone Community Church in Littleton; July 23 at the Merchandise Mart in Denver; and August 13 at the Plaza Hotel Conference Center in Longmont. For more information on Senior Law Day and upcoming events and locations, please visit

Rob Liebross: SCOTUS Restores Equity to the Law of Employee Benefits

Last Monday, in CIGNA Corp. v. Amara, No. 09-804 (May 16, 2011), the Supreme Court ruled that pension plan fiduciaries could be held liable for “make-whole” relief for the harm they had caused employees in failing to comply with their duties in administering the pension plan.

The Court cast aside 18 years of contrary law.

A 1993 decision, Mertens v. Hewitt Associates, 508 U.S. 248 (1993), prevented lower federal courts from awarding monetary relief under ERISA, the federal law governing pension and other employee benefit programs. Yesterday, the Court said Mertens involved a claim seeking compensatory legal damages against a non-fiduciary private firm that provided a pension trustee with actuarial services. That decision did not apply to a lawsuit by a beneficiary against a fiduciary about the terms of an ERISA plan.

The Court in Amara said the traditional law of equity governed and that the law of equity generally authorized make-whole monetary relief against fiduciaries who violated their duties under ERISA to employees and beneficiaries of employee benefit plans and caused them harm. Here, the trial court had found the CIGNA fiduciaries knowingly misled employees about the pension benefits they would receive under a 1998 pension plan amendment in exchange for continuing to work.

The Court directed lower federal courts to apply the traditional laws of equity in fashioning relief for wrongdoing by fiduciaries of employee benefit plans, which includes employee pension, health insurance, disability and 401(k) programs, to name a few of the most common.

In the particular case before it, the Court cleared the way for the employees to recover what CIGNA had told them they would receive in exchange for their labor. The lower courts were told to apply the law of equity in determining whether the 27,000 members of the plaintiff class, either individually or as a group, should recover what they were promised.

This decision is a giant step towards making pension plans more equitable, a purpose expressly set forth by Congress in the 1974 law, the Employee Retirement Income Security Act of 1974.

Rob Liebross is a Colorado Bar Association member who represents employees and retirees in pension and other benefits litigation. He maintained an office in Denver from 1992-2007, but has now relocated to New York. You can reach him at 

Click here for more Employment Law Updates.


The Practitioner’s Guide to Colorado Employment Law

This comprehensive guide breaks down employment law from A to Z–an easy-to-understand resource for employment attorneys, employers and Human Resources departments across Colorado.

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Colorado Supreme Court: Substantive and Procedural Protections of First Amendment Right to Petition Apply to Attorneys and in Attorney Discipline Proceedings

The Colorado Supreme Court issued its opinion in In the Matter of Foster on May 23, 2011.

Attorney Discipline—First Amendment Right to Petition—Frivolous Litigation—Conduct Prejudicial to the Administration of Justice.

The Supreme Court affirmed in part and reversed in part the judgment of the disciplinary hearing board imposing sanctions on attorney Steven James Foster for engaging in a frivolous appeal and conduct prejudicial to the administration of justice. The Court held that the substantive and procedural protections of the First Amendment right to petition apply to attorneys and in the context of attorney discipline proceedings. The Court concluded that Foster’s aggregate conduct throughout a dissolution proceeding and a portion of a frivolous appeal was protected by the First Amendment and accordingly dismissed the charges against him based on that conduct. The Court also concluded that other conduct by Foster during the appeal constituted sham litigation unprotected by the First Amendment. Accordingly, the hearing board’s imposition of sanctions for that conduct was affirmed and the case was remanded for a redetermination of the appropriate sanctions.

Summary and full case available here.

Colorado Supreme Court: County Regulations Require Written Ruling to be Finalized, and Denial of Judicial Review without Notice of Ruling is Due Process Violation

The Colorado Supreme Court issued its opinion in Citizens for Responsible Growth, Elbert County v. RCI Development Partners, Inc. on May 23, 2011.

Land Use Applications—C.R.C.P. 106(a)(4)—Time for Review—Final Decision.

Citizens for Responsible Growth of Elbert County (Citizens) sought review of the court of appeals’ judgment reversing a C.R.C.P. 106(a)(4) order of the district court. [See Citizens for Responsible Growth v. RCI Dev. Partners, Inc., No. 08CA0890 (Colo.App. May 21, 2009) (not selected for official publication).] Citizens challenged Elbert County’s approval of RCI’s land-use applications, and the district court remanded for further proceedings by the Board of County Commissioners (Board). Without considering the merits of the district court’s order, the court of appeals found that it exceeded its jurisdiction by entertaining a complaint filed more than thirty days after the point of administrative finality. The court of appeals reasoned that the date of administrative finality was the actual date the Board adopted its resolution, rather than the date of its recording with the County Clerk and Recorder, and although Citizens filed within thirty days of recording, it failed to prove that the Board’s resolution was not adopted sometime earlier.

The Supreme Court reversed and remanded the case to the court of appeals. The Court held that (1) Elbert County regulations require a written ruling to finalize the Board’s quasi-judicial action in this case; and (2) depriving Citizens of judicial review without notice of that written ruling would violate constitutional guarantees of due process of law.

Summary and full case available here.

Colorado Supreme Court: Jury Permitted to Consider the Rights and Safety of Others When Assessing Exemplary Damages for Willful and Wanton Conduct

The Colorado Supreme Court issued its opinion in Qwest Services Corp. v. Blood on May 23, 2011.

Exemplary Damages—Willful and Wanton Conduct—Procedural Due Process—Substantive Due Process.

Respondent Andrew Blood, a lineman for Xcel Energy, suffered severe and permanent injuries while working on a wood utility pole owned by Petitioner Qwest Services Corporation (Qwest). Blood sued Qwest for negligence, asserting that Qwest had failed, for decades, to implement a routine pole inspection program that would have detected the internal rot that caused the pole to collapse on top of him. The jury found Qwest 100% at fault and awarded Blood $9,917,600 in economic losses, $1 million in noneconomic losses, $10 million for physical impairment and disfigurement, $750,000 for loss of consortium, and $18 million in exemplary damages. On review, the court of appeals upheld the majority of the award in the published opinion of Blood v. Qwest Services Corp., 224 P.3d 301 (Colo.App. 2009). Qwest then sought certiorari review of the court of appeals’ judgment.

The Supreme Court granted certiorari to review the issue of whether the exemplary damages award violated the Due Process Clause as interpreted in Philip Morris USA v. Williams, 549 U.S. 346 (2007). The Court also granted certiorari on the issue of whether the evidence, on de novo review, was sufficient to demonstrate that Qwest’s conduct was “willful and wanton” beyond a reasonable doubt as required by Colorado’s exemplary damages statute, CRS § 13-21-102(1)(a). Also included within the Court’s review was the issue of whether the exemplary damages award was within a constitutionally permissible range that is not “grossly excessive” in accordance with BMW of N. America v. Gore, 517 U.S. 559 (1996).

The Court affirmed the court of appeals’ judgment upholding the exemplary damages award. As an initial matter, the Court held that Philip Morris does not support Qwest’s facial challenge to § 13-21-102(1). There is no suggestion in the statute that a jury could or should award exemplary damages to punish a defendant for harm to nonparties. Instead, § 13-21-102(1) complies with the holding in Philip Morris to the extent it permits the jury to consider the “rights and safety of others” in assessing the willful and wanton nature—that is, the reprehensibility—of a defendant’s conduct.

The Court also dismissed Qwest’s as-applied challenge to § 13-21-102(1). Qwest argued that the jury considered its lack of a post-accident inspection program and thus directly punished it for harm to nonparties in violation of Philip Morris. The trial court, however, expressly instructed the jury that it was prohibited from considering, for any purpose, Qwest’s lack of a post-accident pole inspection program when assessing exemplary damages. This instruction provided even more protection than required by the Due Process Clause as interpreted in Philip Morris. Because there is no evidence to the contrary, the Court presumed that the jury followed this limiting instruction and refused to consider Qwest’s post-accident conduct in assessing exemplary damages.

Additionally, the Court held, on de novo review, that the evidence was sufficient to demonstrate that Qwest’s failure to implement a periodic pole inspection program, for the forty-six years prior to Blood’s accident, was “willful and wanton” beyond a reasonable doubt and thereby satisfied the requirements for an exemplary damages award under § 13-21-102(1)(a).

Finally, after conducting a de novo review of the record and analyzing the three guideposts announced in Gore, the Court held that Qwest’s conduct, and in particular its failure to implement a periodic pole inspection program, was sufficiently reprehensible to justify an exemplary damages award that was slightly less than compensatory damages. The judgment was affirmed.

Summary and full case available here.

Governor Hickenlooper Signs Fourteen More Bills into Law

Last week, fourteen more bills reached Governor John Hickenlooper’s desk and were signed into law. The bills were the twenty-first group to emerge from the 2011 General Assembly.

  • HB 11-1076
    • Sponsored by Rep. Riesberg and Sen. Roberts. Concerning Time Payment Fees in Judicial Matters.
  • HB 11-1279
    • Sponsored by Reps. Sonnenberg and Becker and Sen. Hodge. Permits for Excess Size and Weight Vehicles.
  • HB 11-1281
    • Sponsored by Rep. Joshi and Sen. Boyd. Health Care Professional Loan Forgiveness Programs Administered in the Primary Care Office of the Department of Public Health and Environment.
  • HB 11-1296
    • Sponsored by Rep. Kagan and Sen. Steadman. Temporary Continuation of Taxation on Cigarette Sales.
  • SB 11-092
    • Sponsored by Sen. Giron and Rep. Hamner. Continuation of the Vessel Registration Program by the Division of Parks and Outdoor Recreation.
  • SB 11-124
    • Sponsored by Sen. Hodge and Rep. Gerou. Transfer of Unspent County TANF Reserves to a County.
  • SB 11-165
    • Sponsored by Rep. Guzman and Rep. A. Kerr. Concerning the Colorado Uniform Estate Tax Apportionment Act.
  • SB 11-179
    • Sponsored by Sen. Carroll and Reps. Miklosi and J. Kerr. Alternative Identification that an Employee Engaged in Work Off-Site May Provide to Ensure Site Security.
  • SB 11-188
    • Sponsored by Sens. Bacon and K. King and Rep. Casso. Increasing the State’s Oversight of the Program that Allows the Financing of Capital Construction for Qualified Charter Schools.
  • SB 11-210
    • Sponsored by Sen. Hodge and Rep. Ferrandino. Elimination of the Supplemental Old Age Pension Health and Medical Care Program, and the Transfer of Remaining Fund Balance to the General Fund, Authorizing the Use of the Tobacco Tax Cash Fund to Provide Services Under Medicaid.
  • SB 11-219
    • Sponsored by Sen. Hodge and Rep. Ferrandino. Moneys Appropriated in the 2011-12 Fiscal Year for Health Clinics.
  • SB 11-225
    • Sponsored by Sen. Hodge and Rep. Gerou. Concerning the Short-Term Innovating Health Program Grant Fund, Transferring the Balance of the Grant Fund to the General Fund at the End of the 2011-12 Fiscal Year.
  • SB 11-226
    • Sponsored by Sen. Hodge and Rep. Gerou. The Augmentation of the General Fund through Transfers of Certain Moneys.
  • HB 11-1315
    • Sponsored by Rep. B. Gardner and Sen. Carroll. A Modification of the Statutory Provisions Governing the Political Party Affiliation of Members of the Independent Ethics Commission to Specify that No More than Two Members of the Commission Shall Be Affiliated with the Same Political Party.

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

Tenth Circuit: Unpublished Opinions, 5/20/11

On Friday, May 20, 2011, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.


United States v. Rodarte-Morales

United States v. Ratliff

Sheppard v. Astrue

Parker v. Jones

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Denver’s New Sobriety Court Opening Today

Today, Denver County Court is launching its new Sobriety Court. The problem-solving court will target repeat drunk drivers with a combination of supervision, treatment, and sanctions in an effort to improve public safety.

Denver’s Sobriety Court is designed to address the ongoing challenge of repeat alcohol offenders for whom traditional sentencing has not worked. It is estimated that there are more than two million impaired drivers with three or more DUI convictions in the United States, and that approximately twenty-percent of Denver’s DUI defendants each year are repeat offenders.

Denver County Court Judge Brian Campbell will preside over the Sobriety Court. Defendants participating in the new program will be tested on a regular basis for alcohol use and are required to appear in court weekly. Throughout the process, they will receive incentives for doing well and be penalized for noncompliance. Participants will also receive long-term, rigorous treatment designed to address core issues with repeat offenders.

A recent study found that repeat offenders who take part in a DUI court program are nineteen times less likely to drink and drive than those in traditional court, and are three times less likely to commit any other offense.  The study also found savings in time and money by getting impaired drivers under supervision and into treatment more quickly and using sanctions, including jail, more strategically.