August 25, 2019

Archives for November 2, 2011

Luis Rovira, Former Chief Justice of the Colorado Supreme Court, Passes Away

According to Law Week Colorado, former Chief Justice of the Colorado Supreme Court Luis Rovira died over the weekend at the age of 88. Rovira served on the state Supreme Court from 1979 when he was appointed by Governor Dick Lamm until he reached the mandatory retirement age of 72 in 1995. He was chief justice during his last five years on the Court. Following his tenure on high court’s bench, he served as a senior judge on panels of the Colorado Court of Appeals.

Rovira was born September 8, 1923, in San Juan, Puerto Rico, and grew up in New York City. He served in the infantry in Europe during World War II. He received his bachelor’s degree in 1948 and his law degree in 1950, both from the University of Colorado.  He was in private practice in Denver before serving as a Denver district judge from 1976 to 1979.

One of his most notable decisions came toward the end of his time on the Supreme Court when in 1994 he penned an opinion ruling that Colorado’s Amendment 2, an anti-gay-rights measure, was unconstitutional. The case, Romer v. Evans, was affirmed by the U.S. Supreme Court.

Rovira worked as an arbiter for the Judicial Arbiter Group, or JAG, after stepping down as chief justice. He stopped working full-time in the year before his death, but still had one ongoing case and checked in regularly, said JAG’s Bill Meyer.

Rovira was recently featured as a “Legal Legend” in the Denver Bar Association’s publication, The Docket. Click here to read the article.

Proposed Legislation for Paid Sick and Safe Time Fails to Pass in Denver

Initiative 300, which would have required Denver employers to provide paid sick and safe time to their employees, was rejected by Denver voters in yesterday’s election. The issue failed by a 2-1 ratio. The initiative would have required city employers to give workers paid sick days at a rate of one hour off per every 30 hours worked. Large businesses would have had to supply up to nine days of paid leave per year, with small businesses having that number capped at five.

Initiative 300 was the subject of a Legal Connection point/counterpoint discussion last month. Those articles can be found here and here.

Colorado Supreme Court: Statewide Voter Approval Not Required when Making Adjustments to the Tax Due on Coal Extracted from Colorado Lands

The Colorado Supreme Court issued its opinion in Huber, Exec. Dir., Colorado Dep’t of Revenue v. Colorado Mining Assoc. on October 31, 2011.

CRS § 39-29-106—Amendement 1—Colo. Const. art. X, § 20—Taxation—Prospective Application of Constitutional Amendment.

The Supreme Court held that statewide voter approval is not required when the Department of Revenue implements quarterly adjustments to the tax due per ton of coal extracted from Colorado lands as required by CRS § 39-29-106. The court of appeals’ judgment was reversed.

The General Assembly adopted the coal severance tax of CRS § 39-29-106 in 1988, before approval of Amendment 1, Colo. Const. art. X, § 20. Amendment 1 requires advance voter approval for new taxes, tax rate increases, and tax policy changes that directly cause net revenue gains. CRS § 39-29-106 establishes a tax rate with two components to calculate the severance tax owed: (1) a base rate of $0.36 per ton of coal extracted; and (2) a quarterly 1% increase or decrease to the base rate calculated by changes to the index of producers’ prices, a federally prepared economic index that roughly tracks inflation.

After Amendment 1 became effective, the Department of Revenue suspended implementation of the statutorily required quarterly adjustments to the tax due, leaving in place a tax of $0.54 per ton of coal extracted. In 2007, the Department of Revenue concluded that implementation of the two-part tax rate formula was non-discretionary and did not conflict with Amendment 1, and it adjusted the tax due to $0.76 per ton. The court of appeals concluded that each time the Department of Revenue calculates an upward adjustment in the tax due, Amendment 1 requires statewide voter approval.

The Supreme Court concluded that Amendment 1 is prospective in application and that implementation of the two-part tax rate formula in CRS § 39-29-106 (the base rate plus the non-discretionary adjustment factor) is not a “tax rate increase.” Instead, collection of the tax as prescribed is a non-discretionary duty required of the Department of Revenue by a taxing statute that is not subject to Amendment 1’s voter approval requirements. Because the Department of Revenue has no discretion to increase or alter the tax rate formula of CRS § 39-29-106, Amendment 1’s prospective check on the legislature does not apply.

Summary and full case available here.

Colorado Supreme Court: Predominance of Individual Issues Precluded Class Certification

The Colorado Supreme Court issued its opinion in State Farm Mut. Ins. Co. v. Reyher on October 31, 2011.

Class Actions—Class Certification—Burden of Proof—Colorado Automobile Accident Reparations Act.

Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court affirmed the trial court’s decision to deny class certification, thereby reversing the court of appeals’ judgment. The Court concluded that the trial court rigorously analyzed plaintiffs’ class-wide theories of liability, as well as the evidence offered by defendant to refute those theories in determining that the predominance of individual issues precluded class certification.

Summary and full case available here.

Colorado Supreme Court: Defendant May Introduce Individual Evidence to Rebut Class-Wide Inference of Fraudulent Concealment

The Colorado Supreme Court issued its opinion in BP America Production Co. v. Patterson on October 31, 2011.

Class Actions—Burden of Proof—Circumstantial Evidence—Inference or Presumption—Fraudulent Concealment.

Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court affirmed the trial court’s decision to grant class certification. The Court held that the ignorance and reliance elements of fraudulent concealment may be inferred from circumstantial evidence, enabling plaintiffs to establish a theory of fraudulent concealment on a class-wide basis with evidence common to the class. The Court also held that a defendant may introduce individual evidence to rebut such a class-wide inference. The Court concluded that the trial court rigorously analyzed all the evidence presented in support of and in opposition to class certification, as required by Jackson.

Summary and full case available here.

Colorado Supreme Court: Causation and Injury Elements of Consumer Protect Act Claims May Be Inferred from Circumstantial Evidence Common to the Class

The Colorado Supreme Court issued its opinion in Garcia v. Medved Chevrolet, Inc. on October 31, 2011.

Class Actions—Burden of Proof—Circumstantial Evidence—Inference or Presumption—Colorado Consumer Protection Act.

Applying the standards enunciated in Jackson v. Unocal Corp. (Oct. 31, 2011, No. 09SC668), the Supreme Court concluded that the trial court failed to rigorously analyze the evidence in deciding to grant class certification. The Court therefore affirmed the court of appeals’ decision remanding the case to the trial court to conduct such an analysis.

Consistent with its opinion in BP America Production Co. v. Patterson, 185 P. 3d 811 (Colo. 2008),the Court held that the causation and injury elements of plaintiffs’ Consumer Protection Act claims may be inferred from circumstantial evidence common to the class. The Court further held that defendant has the opportunity to rebut such class-wide inferences with individual evidence. The Court concluded that, in its analysis, the trial court neglected to consider the evidence offered by defendant to refute plaintiffs’ class-wide theories of liability.

Summary and full case available here.

Colorado Supreme Court: Trial Court Must Rigorously Analyze the Evidence when Deciding to Certify a Class; Declined to Adopt Specific Burden of Proof

The Colorado Supreme Court issued its opinion in Jackson v. Unocal Corp. on October 31, 2011.

Civil Procedure—Class Actions—Burden of Proof—Expert Disputes.

In the lead case in a series of four class action cases, the Supreme Court addressed the standards a trial court must apply when deciding whether to certify a class pursuant to C.R.C.P. 23. The Court declined to adopt a specific burden of proof and therefore reversed the court of appeals’ decision holding that a trial court must apply a preponderance of the evidence standard to C.R.C.P. 23’s class certification requirements. Instead, the Court held that a trial court must rigorously analyze the evidence presented and determine to its satisfaction that each C.R.C.P. 23 requirement is met.

The Court also considered whether a trial court may resolve factual or legal disputes relevant to class certification where those disputes independently overlap with the merits. The Court held that a trial court may consider factual or legal disputes to the extent necessary to satisfy itself that the requirements of C.R.C.P. 23 have been met, but may not resolve factual or legal disputes to screen out or prejudge the merits of the case. The Court extended this holding to expert disputes, such that a trial court may consider expert disputes in determining whether class certification is appropriate, but need not determine which expert will prevail at trial or whether an expert’s testimony ultimately will be admissible at trial.

Summary and full case available here.

Vacancy on the First Judicial District Court Following Judge Boatright’s Appointment to the Colorado Supreme Court

The First Judicial District Nominating Commission will meet December 5, 2011, at the Jefferson County Combined Court to interview and select nominees for appointment by Governor Hickenlooper to the office of District Judge for the First Judicial District, which serves Gilpin and Jefferson counties. The vacancy will be created by the appointment of the Honorable Brian Boatright to the Colorado Supreme Court.  The vacancy will occur on November 18.

Eligible applicants for appointment to fill the vacancy must be qualified electors of the First Judicial District and must have been admitted to the practice of law in Colorado for five years. Applications must be received by Thursday, November 17. The appointed district judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.

Further information about applying for the vacancy is available from the Colorado Judicial Branch.