July 23, 2019

Archives for June 21, 2011

Seventeenth Judicial District Providing Interpreter Services for All Case Types Beginning in July

Effective July 1, 2011, Interpreter Services will be provided for all case types in the Seventeenth Judicial District.

For more information, contact Colleen Kent at (303) 654-3377 or via email.

Governor Hickenlooper Announces New Chief Legal Counsel and Director of Economic Development

Today, Governor John Hickenlooper announced changes to his economic and legal teams. Ken Lund, the Chief Legal Counsel in the Governor’s Office, will become Executive Director of the Office of Economic Development and International Trade on August 1, 2011. Lund will replace Dwayne Romero, who is returning full time to the private sector.

Jack Finlaw, who is currently Chief of Staff to Denver Mayor Bill Vidal, will replace Lund as Chief Legal Counsel to the governor in August.

Lund was hired in December to be Governor Hickenlooper’s Chief Legal Counsel. He was previously the firmwide Managing Partner of Holme Roberts & Owen in Denver. Lund will remain a member of the Governor’s Office senior staff in his new role and continue to provide legal counsel to the governor.

Finlaw has worked the past six months as Mayor Vidal’s Chief of Staff. He previously worked as Deputy Chief of Staff for then-Mayor Hickenlooper and for seven years as Director of the City’s Theatres and Arenas Division. Before working for the city, he worked as Deputy General Counsel for Comcast Corp. in Englewood and as Counsel for Jones Intercable Inc..

Both Lund and Finlaw earned their law degrees from the University of Denver.

State Board of Human Services Amends Rules Regarding Paternity Testing

The Colorado State Board of Human Services has amended the rules regarding genetic testing to establish paternity. The purpose of the proposed amendments is to align the Colorado rules on the issue with new state and federal laws.

The Colorado Legislature recently passed SB 11-123, effective August 10, 2011, which imposes limitations on genetic testing if paternity has previously been determined in another state. The proposed rule changes aim to eliminate any inconsistency between state law and the rules regarding genetic testing and administrative process; if the rules regarding other state paternity determinations are not changed to match the statute, the Board believes that it could result in genetic tests being conducted that are prohibited by statute, child support cases being dismissed inappropriately, entry of invalid orders, or irreversible delays in case processing, ending up with no child support for the children.

Additionally, the amended rules comply with federal regulations at 45 CFR 303.7 that became effective January 3, 2011, which require the responding state to pay for genetic testing costs and limit case closure reasons for a responding reciprocal case. If Colorado’s rules place the requirement on the initiating state, the Board believes that there is a risk that both states could collect the same amount from the noncustodial parent, resulting in a double payment, or that neither state would conduct the genetic tests, resulting in delays in case processing, again ending up with no child support for the children.

A hearing on the amended rules will be held on Friday, August 5, 2011 at the Colorado Department of Human Services, Conference Room 4A/B, 1575 Sherman Street, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed changes and edits to the rules can be found here. Further information about the rules and hearing can be found here.

State Board of Education Amends Rule for Administration of the Exceptional Children’s Educational Act

The Colorado State Board of Education has amended the rules for administrating the Exceptional Children’s Educational Act. The purpose of the proposed amendments are:

  • to replace the definition of Administrative Unit that was inadvertently deleted through previous emergency rulemaking;
  • to bring the state into compliance with recent legislation adopting a Tier 1 Due Process Hearing System (SB 11-061); and
  • to repeal Section 2.08(6)(b)(i) and renumber, because by operation of rule the language has expired; the section outlines the criteria for determining if a child has a specific learning disability that prevents the child from receiving reasonable education benefit from general education.

A hearing on the amended rules will be held on Wednesday, August 3, 2011 at the Department of Education State Board Room, 201 E. Colfax Ave., Denver, Colorado 80203, beginning at 2:30 pm.

Full text of the proposed changes and red line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Paul Karlsgodt: Thoughts on Wal-Mart Stores, Inc. v. Dukes

Many commentators correctly [predicted] that the decision in Wal-Mart Stores, Inc. v. Dukes would be favorable to business interests.  However, unlike the Court’s earlier decision in AT&T Mobility v. Concepcion, the decision does not necessarily threaten to sound a death knell for class actions or even a particular category of class actions.  Instead, the decision merely clarifies the standards on which future class actions are to be evaluated in the federal courts, but it does so in a way that is likely to impact class actions in many areas of the law outside of the employment law context.  Here are some of the key issues on which the opinion will undoubtedly be cited in the future, and some thoughts on the potential impact of the decision on each issue.

  1. Standard of review – The majority’s decision clarifies a long-standing misconception about the ability of a federal court to consider questions relating to the merits of a case in the class certification phase.  For more than 30 years, plaintiffs’ counsel and many courts have cited the Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), as prohibiting any examination of the plaintiffs’ claims on the merits at the class certification phase.  Consistent with the majority trend in the lower federal courts, the Supreme Court’s decision in Wal-Mart Stores, Inc. confirms that a court should consider and resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied, regardless of whether those issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims.
  2. Evaluation of Expert Testimony – The majority decision makes clear that it is appropriate for a federal court to conduct a Daubert analysis to consider the reliability and helpfulness of expert witness opinions at the class certification phase.  It is no longer sufficient for a plaintiff to present expert testimony and then argue that the Court may find that testimony reliable at some later point in the proceedings.  Again, in keeping with the trend among the federal circuit courts, the Court’s analysis in Wal-Mart Stores, Inc. makes clear that the reliability and relevance of expert testimony proposed as “common proof” should be evaluated before granting class certification.
  3. Use of Statistical Evidence in Support of Class Certification – The majority’s decision leaves open the possibility that statistical evidence might be used in establishing the existence of common proof in certain cases, but it sets a high standard for when proffered statistical evidence can be considered as adequate proof of the existence of “common issue.”  Significantly, Part III of Justice Scalia’s opinion, which was joined by all 9 justices, disapproves of the “Trial by Formula” approach to class actions, in which a sample of claims is tried on the merits, and the results of that sample are then applied proportionally to the claims of the entire class.
  4. Certification of Claims Seeking Monetary Relief Under FRCP 23(b)(2) – This is perhaps the most uncontroversial aspect of the opinion in that part of the unanimous holding of the Court.  The Court’s holding is also straightforward, at least conceptually: claims for monetary relief may not be certified under FRCP 23(b)(2) unless they are merely incidental to injunctive or declaratory relief being requested on behalf of the class as a whole.  However, the devil may be in the details, as future courts (especially outside the employment law context) will be left with the task of defining what monetary relief is “incidental” to injunctive or declaratory relief and what is not.

Ed. Note: The Supreme Court’s slip opinion for Wal-Mart Stores, Inc. v. Dukes can be read here.

Paul Karlsgodt is a partner at Baker Hostetler who focuses his practice on class action defense and other complex commercial litigation. He is editor and primary contributor to www.ClassActionBlawg.com, where this post originally appeared on June 20, 2011.

Chief Judge O. John Kuenhold to Retire from Twelfth Judicial District Bench

The Twelfth Judicial District Nominating Commission will meet at the Alamosa Combined Court on August 24, 2011, to interview and select nominees for appointment by Governor Hickenlooper to the office of district judge for the Twelfth Judicial District, which serves Alamosa, Conejos, Costilla, Mineral, Rio Grande, and Saguache counties. The vacancy will be created by the retirement of the Honorable O. John Kuenhold on October 1, 2011.

Eligible applicants for appointment to fill the vacancy must be a qualified elector of Twelfth Judicial District and must have been admitted to the practice of law in Colorado for five years. The application deadline is Wednesday, August 3, 2011. The appointed district court judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.

Further information about the retirement of Chief Judge Kuenhold and applying for the vacancy is available from the Colorado Judicial Branch.

Colorado Supreme Court: Umbrella Policy that Includes Supplemental Liability Coverage Is Not a Motor Vehicle Liability Policy

The Colorado Supreme Court issued its opinion in Apodaca v. Allstate Ins. Co. on June 20, 2011.

Insurance Law—Statutory Construction—Uninsured/Underinsured Motorist Coverage—Umbrella Liability Policies.

The Supreme Court held that an umbrella policy that includes supplemental liability coverage for automobiles or motor vehicles is not an “automobile liability or motor vehicle liability policy” under CRS § 10-4-609(1)(a). Consequently, under § 10-4-609, an insurer issuing an umbrella policy is not required to offer uninsured/underinsured motorist (UM/UIM) coverage as part of the umbrella policy. The Court reached this result based on the plain language of the UM/UIM statute, and rejected the argument that public policy considerations compel a different result. The Court therefore affirmed the court of appeals’ judgment.

Summary and full case available here.

Colorado Supreme Court: Application for a Conditional Appropriative Right of Exchange is a Conditional Water Right

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of the City and County of Broomfield in Adams, Broomfield, Boulder and Weld Counties: Centennial Water and Sanitation District v. City and County of Broomfield on June 20, 2011.

The Supreme Court affirmed an order of the district court for Water Division No. 1, holding that an application for a conditional appropriative right of exchange is a conditional water right subject to the can-and-will test and the first-step requirement. The Court found that the City and County of Broomfield, as a government entity, need not own nor control all sources of substitute water supply at the time the decree is entered but must demonstrate that it has taken the first step toward acquiring the proposed sources and that it can and will acquire them. This analysis is to be applied source by source. The Court found that the water court properly concluded that Broomfield met its burden with regard to two of the eight proposed sources of substitute supply that it does not own or control. Accordingly, the water court’s decree was affirmed.

Summary and full case available here.

Colorado Supreme Court: Governor’s Personal Cell Phone Billing Statements Are Not Public Records under the Colorado Open Records Act

The Colorado Supreme Court issued its opinion in Denver Post Corp. v. Ritter on June 20, 2011.

Colorado Open Records Act—Public Records—Failure to State a Claim.

The Denver Post Corp. and its reporter Karen Crummy (collectively, the Post) requested access to Governor Bill Ritter’s cell phone billing statements. The Governor provided access to cell phone bills for his state-paid Blackberry device, but refused to provide access to billing statements for his personal cell phone on the ground that those bills are not “public records” under the Colorado Open Records Act, CRS §§ 24-72-201 to -206 (CORA). CORA defines public records as “writings made, maintained, or kept by the state . . . for use in the exercise of functions required or authorized by law.” The Supreme Court held that the Post’s complaint is conclusory in nature and fails to allege facts that, if accepted as true, state a claim that the Governor’s personal cell phone billing statements are likely public records under CORA. Therefore, the burden did not shift to the Governor to demonstrate that the phone bills are not public records under CORA. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Inmate’s Indefinite Placement in Administrative Segregation Establishes a Protected Liberty Interest

The Tenth Circuit Court of Appeals issued its opinion in Toevs v. Reid on Monday, June 20, 2011.

The Tenth Circuit affirmed the district court’s decision, though on different grounds. Petitioner was placed in the Colorado prison system’s Quality of Life Level Program. The program consists of six levels, each successively allowing more privileges as the inmate works through the system with good behavior. Petitioner claimed that his placement in the program deprived him of a liberty interest without due process; specifically, he alleges that his case managers “denied him his right to a meaningful periodic review of his confinement in administrative segregation because the reviews they gave him were perfunctory, meaningless, and all said the same thing.”

The Court disagreed with Petitioner’s contentions but agreed that Petitioner’s indefinite placement in such administrative segregation that lasted for years, in the type of conditions he alleged, established a protected liberty interest. However, this liberty interest was not deprived. Meaningful review need not be a review that could result in his immediate release from the program back into the general prison population. “A ‘meaningful’ review is one that evaluates the prisoner’s current circumstances and future prospects, and, considering the reason(s) for his confinement to segregation, determines, without preconception, whether that placement remains warranted”; this type of review is consistent with those provided by Petitioner’s case managers. Ultimately, “because the standards for meaningful periodic reviews during extended placement in a stratified incentive program involving confinement to administrative segregation were not previously clearly established in this circuit,” Respondents are entitled to qualified immunity.

Tenth Circuit: Unpublished Opinions, 6/20/11

On Monday, June 20, 2011, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.


Gov’t Employees Ins. Co. v. Moore

Stormont-Vail Regional Medical v. Sebelius

Muniz v. Moore

Ellis v. Parker

Freddie v. Marten Transport, Ltd.

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