July 22, 2018

Archives for July 26, 2011

Department of Public Health and Environment Amends Several Regulations Concerning National Ambient Air Quality Standards

The Colorado Department of Public Health and Environment has amended several regulations contained within Regulation Number 3, Parts A, B, C, and D. The Air Quality Control Commission has proposed revisions to primarily address federal changes to the New Source Review (NSR) Program related to PM2.5 National Ambient Air Quality Standards (NAAQS); these proposed revisions are seen as necessary for consistent state implementation of the federal NSR program.

In addition, the Division is proposing revisions that address several recent Environmental Protection Agency (EPA) State Implementation Plan (SIP) actions in which the EPA partially disapproved various SIP revisions. The Division is also proposing to incorporate into Colorado’s Prevention of Significant Deterioration (PSD) and Title V Permitting Programs the EPA’s Deferral of Biogenic Sources of CO2 Emissions to ensure consistent state implementation of greenhouse gas regulation under the federal PSD and Title V Permitting Programs.

Finally, the Division is proposing to make other miscellaneous revisions and to correct typographical, grammatical, and formatting errors.

A hearing on the amended regulations will be held on Thursday, October 20, 2011 at the Colorado Department of Public Health and Environment, 4300 Cherry Creek Drive South, Sabin Conference Room, Denver, Colorado 80246, beginning at 9:00 am.

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

Department of Public Health and Environment Amends Rule Concerning Emissions Exemptions

The Colorado Department of Public Health and Environment has amended the rule regarding emissions exemptions. The proposed amendments by the Air Quality Control Commission will establish an emissions exemption and enforcement procedures for fleet-owned heavy-duty diesel vehicles based outside the program area as part of a fleet registered in the program area, pursuant to the passage of HB 11-1157.  The Commission will also consider any typographical, grammatical, and formatting errors throughout the regulation.

A hearing on the amended rule will be held on Thursday, October 20, 2011 at the Colorado Department of Public Health and Environment, 4300 Cherry Creek Drive South, Sabin Conference Room, Denver, Colorado 80246, beginning at 9:00 am.

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

Tom Mighell: Hosting a Meeting from Your iPad – A Review of Some Meeting Apps

Lawyers have lots of meetings. So you’d think that the iPad would make an ideal tool for hosting and attending meetings. And you’d be mostly right.  Mostly.

There are a lot of apps that allow you to attend a meeting from your iPad. Unfortunately, when it comes to actually hosting a meeting from your iPad, the apps I’ve reviewed still have a ways to go, in various ways. I’ve taken a look at four meeting apps, and have some brief remarks about all of them, from the least iPad-friendly to the most. For purposes of this discussion, what makes a meeting app iPad-friendly is the ability to both join and host a meeting, and associated functionality with both.

GoToMeeting (Free, download in iTunes) – GoToMeeting is certainly one of the biggest online meeting providers. However, its iPad app has no hosting capability. You can join the meeting and view what the Host is sharing on-screen, but that’s about it. The audio for the meeting is available via your iPad, or by calling the conference line provided. Grade:  C-

WebEx (Free, download in iTunes) – another giant in the online meeting space, the WebEx app is only marginally better than the GoToMeeting app. It does allow users to create and start meetings on the iPad – it’s pretty easy to log in to your account, create a meeting, and start it on your device. However, once the meeting is started ou cannot actually share information with meeting attendees on the device. You can view attendees, and share video with other attendees, but that’s about it. Of course, viewing meeting content on the device is great, but without the ability to interact with the meeting host, it’s more of a one-way conversation. Grade:  C

Adobe Connect (Free, download in iTunes) – I’m,a big fan of Adobe Connect, even though they provide free meetings for only up to 3 people. A couple of weeks ago they released this iPad-compatible app, but I have to admit that I can’t get it to work. Whenever I try to login to a meeting, I get a “Network Error” message that won’t go away. I tried to find an answer in the user forums, and found that others have been having the same problem – but no one is answer their questions there. If any Adobe folks read this, can you please respond in the comments on how to fix the Network Error issue? In any event, even if I could get in, I’d have the same inability to drive a meeting as I would in GoToMeeting and WebEx – that capability just doesn’t exist yet. So as much as I like the Adobe Connectd web product, for now the app grade has to be Incomplete.

Fuze Meeting (Free, download in iTunes) comes the closet of the apps I’ve reviewed to being a complete meeting experience on the iPad. When you start it up, you are given the option to Start a New Meeting, Join a Meeting, or view your list of meetings. When you start a new meeting, it instantly starts – a box pops up asking you whether you want to join the conference call from your iPad, or by having the Fuze service call you.

When you start your meeting, you are given a couple of options. The first is to Add Content – from the app you can add content from either your Photo Roll or from your Fuze Online Library. To make sure content is in the Online Library, you’ll have to upload it from the computer-based version of Fuze. (Box.net connects with Fuze, but I don’t think you can upload content direct from there into your iPad meeting).

Inviting Attendees is a snap – just press the Invite Attendees button on the home page, or click the People icon once you are in the meeting. Then just select email addresses from your contact list, or type in a new address and add it. Your attendees will be able to join by clicking on the link in the email.

So far, so good. But here’s where Fuze starts to let me down.  You can pull up a document on your screen to view it with your attendees, but you don’t have the ability to annotate the document; to do that, you’ll have to give control to one of your Web viewers, or access the Fuze meeting via the web yourself. To do this, you’ll need to make someone else either the presenter or annotator within the iPad app.

Annotators can mark up a document in any number of ways – freeform drawing, arrows, text annotations, and squares, circles and triangles. Any annotations can be deleted by using the handy eraser tool. If you upload a multi-page file – PDF, Word, or PowerPoint document – you can move through the document from page to page from the iPad app.

While the meeting is going on, attendees can chat with each other via the handy chat feature, which allows you to chat with everyone or just particular attendees.

Of the tools I’ve reviewed so far, Fuze is clearly the front-runner. If only I had the ability to annotate documents on the iPad, I’d find it nearly a complete tool. As it is, I have to give this app a solid B+. Check back for updates on meeting apps as new tools become available.

Tom Mighell a Senior Consultant with Contoural, Inc., where he helps companies address their records management, electronic discovery, and litigation readiness issues. Tom has followed technology trends for more than twenty years, and works with lawyers to help them use technology in ways that provide great service to their clients. He authored iPad in One Hour for Lawyers, which was published in March 2011 by the American Bar Association. He publishes the iPad 4 Lawyers blog, where this post originally appeared on June 2, 2011.

J. Robert Brown, Jr.: Shareholder Protection Act of 2011 – Preemption, Prevention and Protection (What Citizens United May Have Wrought) – Part 1

The issue of corporate campaign contributions has returned.  Several sponsors have reintroduced the Shareholder Protection Act of 2011. The bill is designed to deal with some of the problems arising out of the Supreme Court’s decision in Citizens United.

In striking down restrictions on campaign contributions by corporations, the Court all but invited a governance response. As the opinion noted:

Shareholder objections raised through the procedures of corporate democracy . . .  can be more effective today because modern technology makes disclosures rapid and informative. A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today. . . . With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “‘in the pocket’ of  so-called moneyed  interests.” . . . The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

As we have already discussed, the Court’s view reflects a serious misunderstanding of shareholder authority under state law. As a result, any effort by shareholders to influence the political expenditure process will require a legislative response.

In that regard, members of Congress have reintroduced Shareholder Protection Act of 2011 (a version was also submitted last year). The Act seeks to regulate the campaign contribution process through four forms of protection: the requirement for shareholder approval of the expenditures, the requirement of board authorization for the expenditures, the requirement that the expenditures be disclosed, and the imposition of treble damages on officers and directors who are responsible for any violation.

To the extent adopted, the provisions will, among other things, result in a sizable preemption of state (read Delaware) law. As a corollary, it will significantly expand the role of the SEC in the corporate governance area, a trend already well underway. We’ll look at some of these issues in the next few posts.

For more than two decades, J. Robert Brown, Jr. has taught corporate and securities law, with a particular emphasis on corporate governance. He has authored numerous publications in the area and several of his articles have been cited by the U.S. Supreme Court. He is a professor at the University of Denver Sturm College of Law and blogs for The Race to the Bottom, where this post originally appeared on July 26, 2011.

Aaron Solomon: Deficiency Notices and Due Process

Editor’s Note: The Tenth Circuit Court of Appeals issued its opinion in Pater v. City of Casper on Monday, July 25, 2011.

In Pater v. City of Casper (No. 09-8084), the Tenth Circuit held that property owners may be able to state a due process claim when a deficiency notice is recorded against their property by a municipality.

In this case the City of Casper claimed that the plaintiffs were contractually obligated to reimburse the City for certain street improvements. Based on the Tenth Circuit’s description of the facts the City had some holes in its argument. A few weeks after making its demand for payment, without further communication and before received any response, the City recorded a “Notice of Apportionment and Assessment” against the plaintiffs’ property. This may have been an attempt to compel a settlement by clouding the plaintiffs’ title. If so, it failed. The plaintiffs sued, alleging, inter alia, a due process violation.

The District Court dismissed the due process claim and remanded various state claims. On appeal, the Tenth Circuit first held that the notices, while not judgment liens, nevertheless sufficiently encumbered the property to constitute a deprivation of a protected property interest. In reaching this conclusion the court relied in part on the City’s view that the notices were intended to “run with the land” and bind future purchasers. The plaintiffs were also apparently prepared to offer an expert to testify that a purchaser could not obtain tile insurance until the Notices were satisfied. The Tenth Circuit noted that the existence of a common law action for slander of title strongly suggested that the notices had the potential to cause a legal injury. Finally, the Tenth Circuit identified and resolved a circuit split. The Second Circuit has indicated a lis pendens trigger Due Process protection. The Second Circuit has held that it does not.

The court then considered whether the plaintiffs had been provided sufficient process to satisfy the fourteenth amendment. Because the District Court did not reach this issue, the Tenth Circuit remanded for it to address this issue in the first instance. However I think it is pretty clear from the facts that there was no process at all, at least pre-deprivation.

Aaron Solomon is an associate at Hale Westfall who focuses his practice on on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on July 25, 2011.

Tenth Circuit: Constitutional Claims Dismissed as Pre-Termination Process Not Inadequate and Association with an Attorney Not a Matter of Public Concern

The Tenth Circuit Court of Appeals issued its opinion in Merrifield v. Santa Fe Board of County Commissioners on Monday, July 25, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner, a former Youth Services Administrator of Santa Fe County’s Youth Development Program at the County’s youth correctional facility, sued the County Board of Commissioners in federal court for improper termination. In his civil rights claims, he alleged that he had been denied procedural due process with respect to the County’s pretermination hearing and that he had been fired in retaliation for retaining an attorney, in violation of his First Amendment right of association. His complaint also brought a state law claim requesting judicial review of the County’s administrative decision affirming the firing. The United States District Court for the District of New Mexico granted summary judgment for Respondents on the federal claims, but set aside the County’s administrative decision and awarded Petitioner back pay. Petitioner appeals the grant of summary judgment to Respondents and the calculation of back pay, and Respondents cross-appeal the setting aside of the administrative decision.

The Court affirmed the summary judgment on the constitutional claims. Petitioner failed to show that his pretermination process was constitutionally inadequate and that his association with an attorney involved a matter of public concern. However, the district court’s ruling on the state law claim was remanded for dismissal without prejudice. Petitioner contended that the district court’s calculation of back pay constituted a constructive discharge and Respondents contended that the court erred in holding that the hearing officer should have reviewed the County’s termination decision de novo. Although the dismissal would result in rebriefing of the state law issues in state court, “the interest in comity—leaving to the states to decide novel questions of state-law—clearly predominates here.”

Tenth Circuit: Financing from USDA to Provide Service in Rural Water Districts Provides Qualified Federal Protection from Competition

The Tenth Circuit Court of Appeals issued its opinion in Rural Water Sewer and Solid Waste Mgmt. v. City of Guthrie on Monday, July 25, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. This case revolves around a dispute between two water service providers and which one of them is entitled to serve certain customers located in and around Guthrie, Oklahoma. Petitioner claims that its right to serve these customers is found in state law, but is also protected from competition from encroaching water districts by a federal statute; 7 U.S.C. § 1926(b) protects rural water providers like Petitioner, which are indebted on loans obtained from the United States Department of Agriculture (USDA). Petitioner contends that Respondent and its Guthrie Public Works Authority violated § 1926(b) by extending water service to customers located in Petitioner’s designated service area.

Based upon the Oklahoma Supreme Court’s decision in response to the Tenth Circuit’s certified questions, the Court affirmed the district court’s determination that Petitioner established its continued indebtedness under loans obtained from the USDA, which then grants it qualified protection from competition. The Court also dismissed Respondent’s challenges to the USDA, which claimed that § 1926(b)’s protection against competition is in conflict with the Oklahoma Constitution.

Tenth Circuit: Unpublished Opinions, 7/25/11

On Monday, July 25, 2011, the Tenth Circuit Court of Appeals issued three published opinions and seven unpublished opinions.


United States v. Martinez

Brown v. Wal-Mart Stores, Inc.

Castro v. State of Oklahoma

United States v. Jones, Jr.

Cavaness v. Roberts

Barber v. Astrue

United States v. Cabello-Vizcara

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