July 18, 2019

Archives for February 28, 2012

e-Legislative Report: Week Seven, February 27, 2012

The latest Legislative Video Update with Michael Valdez summarizes the Colorado Bar Association’s position on several bills, including Civil Unions, a bill concerning the Dissolution of Marraige, and Electronic Death Certificates.


CBA Legislative Policy Committee

The LPC did not meet on Friday, February 24. However, positions taken by the committee met on February 17 were omitted from last week’s newsletter due to this writer being out on sick-leave so this is an opportune time to catch you up on LPC positions taken. One position was taken on Wednesday, February 15.

SB 12-002 – Civil Unions
The LPC voted by conference call on Wednesday, February 15 to support SB 2 – Concerning Civil Unions. The Wednesday meeting was called because the bill suddenly appeared on the Judiciary Committee calendar late on Monday afternoon. The Civil Rights Committee had asked the LPC to take a formal “no position” on the bill; several sections countered with requests to the LPC to support the bill – with some needed technical corrections amendments. The sections supporting the bill were: Family, Juvenile, Elder, and Business (the Trust and Estate Section has since voted to support the bill). The LPC voted to support the bill but asked the sections to suggest and develop amendments to improve the bill. In a by-the-way note, this position is consistent with the position taken by the CBA Board of Governors in 2006 when the Board voted to support Referendum I – Domestic Partnerships. The bill passed the Judiciary and Finance Committees on February 15 and 16 respectively; the bill sits in the Appropriations Committee waiting to be calendared.

HB 12-1262 – Concerning Updates to UCC Article 9 “Secured Transactions”
At the request of the Business Law Section, the LPC voted to support HB 1262 – Updates to UCC Article 9. The bill contains needed updates to the 2001 statute that was adopted in Colorado. The ad hoc committee of the Business Law Section spent the last 24-months working through the amendments suggested by the National Conference of Commissioners on Uniform State Legislation (NCCUSL). The CBA testified in support of the bill on Thursday, February 23 and the bill passed out of the Judiciary Committee, unamended, on a 10-0 vote, with one excused. The next stop for the bill is the floor of the House on 2nd Reading.

HB 12-1256 – Formula for Maintenance in a Dissolution of Marriage Action
The Family Law Section was granted permission to oppose the legislation at the Capitol but the LPC also allowed the section to approach the sponsor to request the bill be pulled from consideration in this session and that a Task Force work over the summer to try to find a bill that all can agree upon. The sponsor, Rep. Beth McCann, agreed to table for 2012 and to the establishment of a Task Force on the issue that will be spearheaded by the CBA Family Law Section.

HB 12-1041 – Electronic Death Certificates
The Trust and Estate Section asked for permission to support HB 1041 – Concerning Electronic Death Certificates. The bill creates an electronic death registration system to allow persons who report death information to the Office of the State Registrar of Vital Statistics to do so electronically. The bill contemplates an alternative to the current paper based system that relies on the hand delivery of death certificates to required locations. We do not see a direct positive to practitioners but it should help their clients who sometimes have to wait for the paper filings to make their way through the hand delivery process. The bill is headed to the House floor after surviving the Appropriations Committee on Friday, February 24.

Tenth Circuit: Decedent’s Right to Be Free from Forceful Takedown Was Clearly Established; Officer Not Entitled to Qualified Immunity

The Tenth Circuit Court of Appeals published its opinion in Morris v. Noe on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent brought a § 1983 action for unlawful arrest and excessive force on behalf of her deceased husband against Petitioner police officer. She alleges Petitioner violated her husband’s clearly established rights when the officer forceably arrested decedent and caused him injury. Petitioner moved for summary judgment based on qualified immunity, and the district court denied his motion. Petitioner now appeals.

The Court found that the officer “had reason to believe that [decedent] was, at most, a misdemeanant. But [the decedent] posed no threat to [the officer] or others, nor did he resist or flee. Thus, based on the facts assumed by the district court, [the decedent]’s right to be free from a forceful takedown was clearly established,” and Petitioner is not entitled to qualified immunity.

Tenth Circuit: Alleged Hospital Conduct Resulting in Decedent’s Death Was Neither Private Nor Violent; State-Created Danger Theory of Constitutional Liability Not Proper Resolution

The Tenth Circuit Court of Appeals published its opinion in Gray v. University of Colorado Hospital Authority on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Decedent  sought treatment for epilepsy at Respondent hospital.  “In the course of his withdrawal from medication, hospital staff left decedent unattended and he died after suffering a seizure. [Petitioners], decedent’s estate and family members, filed this civil rights suit” and in their complaint they alleged “that [Respondent] hospital, and affiliated doctors, nurses, and staff acting in their capacity as ’employees and/or agents’ of the hospital, deprived decedent of life without due process of law in violation of the Fourteenth Amendment. The district court granted [Respondents]’ motion to dismiss the complaint . . . for failure to state a constitutional claim,”and Petitioners appealed.

The Court concluded that “[t]he Due Process Clause of the Fourteenth Amendment by its plain language applies only to state action: ‘[N]or shall any State deprive any person of life, liberty, or property, without due process of law.’ . . . The state-created danger theory indulges the legal fiction that an act of private violence may deprive the victim of this constitutional guarantee. Before the fiction may operate, however, a state actor must create the danger or render the victim more vulnerable to the danger that occasions the deprivation of life, liberty, or property. The danger that the state actor creates or enhances must be differentiated from the harm that the private party inflicts. . . . Courts simply need not indulge this legal fiction where a state actor, rather than a private individual, is directly responsible for causing the harm. This is because the state actor directly responsible for the deprivation of life, liberty, or property may be held personally liable under § 1983. . . . But not just any private act will suffice. The private act must be a violent one. . . . [D]ue process guarantees historically have applied only to ‘deliberate decisions.'”

“The conduct Petitioners allege to be directly responsible for decedent’s death is neither private nor violent. Accordingly, because the state-created danger theory of constitutional liability has no role to play in a proper resolution of Plaintiffs’ grievance,” the Court affirmed the district court’s decision.

Tenth Circuit: Nationwide Recordkeeping Data Not Relevant to Charges of Individual Disability Discrimination

The Tenth Circuit Court of Appeals published its opinion in EEOC v. Burlington Northern Santa Fe RR on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioners filed ADA discrimination charges with the EEOC, alleging discrimination based on a perceived disability after not being hired by Respondent following a conditional offer of employment and a medical screening procedure. Respondent’”s position was that it rescinded the offers based on the medical requirements and safety concerns incident to the . . . position, that it did not view either applicant as “disabled,” and that both applicants were free to apply for other positions within BNSF for which they were qualified.” Later, EEOC enhanced the scope of the investigation and issued a subpoena to Respondent requesting nationwide computer files to search for pattern and practice discrimination. Respondent did not comply with the administrative subpoena, and Petitioner requested the district court enforce it, which it declined to do.

On appeal, the Court found that “[n]othing prevents the EEOC from investigating the charges filed by [Petitioners], and then—if it ascertains some violation warranting a broader investigation—expanding its search. Alternatively, nothing prevents the EEOC from aggregating the information it possesses in the form of a Commissioner’s Charge. . . . But nationwide recordkeeping data is not ‘relevant to’ charges of individual disability discrimination filed by two men who applied for the same type of job in the same state, and the district court did not abuse its discretion in reaching that conclusion.”

Tenth Circuit: Unpublished Opinions, 2/27/12

On Monday, February 27, 2012, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.


United States v. De Loera-Hernandez

McGee v. Rudek

Georgacarakos v. Daniels

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

Colorado Supreme Court: Division of Employment and Training Not Allowed to Combine Five Separate Accounts’ Tax Rates

The Colorado Supreme Court issued its opinion in Colorado Division of Employment and Training v. Accord Human Resources, Inc. on February 27, 2012.

CRS §8-70-114(1)—Employer Tax Accounts—Assessing Unemployment Taxes—Back Taxes.

The Colorado Division of Employment and Training (Division) sought to reverse the court of appeals’ decision that CRS § 8-70-114(1) does not authorize the Division to collapse five employer accounts, combine their unemployment tax rates, and assess back taxes. The Supreme Court affirmed the court of appeals’ judgment, concluding that nothing in CRS § 8-70-114(1) gives the Division authority to combine separate employer tax accounts into one account for purposes of assessing unemployment taxes. The statute describes circumstances where individuals will be deemed to be employed by a single employing unit for purposes of paying benefits.

Summary and full case available here.

Colorado Supreme Court: Redistricting; Trial Court’s Evaluation of Non-Constitutional Factors Reasonable

The Colorado Supreme Court issued its opinion in Hall v. Moreno on February 27, 2012.

Congressional Redistricting.

The Supreme Court held that the district court adopted a lawful redistricting scheme in accordance with constitutional criteria and that the district court did not abuse its discretion in balancing the non-constitutional factors as set forth in CRS § 16 2-1-102. The Court further held that this balancing was reasonable and supported by the evidence that was heard during the district court’s thorough, inclusive, and nonpartisan proceedings. Accordingly, the Court affirmed the district court’s order that the Colorado Secretary of State implement the adopted redistricting scheme in future congressional elections.

Summary and full case available here.

Colorado Supreme Court: No Statutory or Constitutional Right to Jury Trial When Insanity Accepted as Defense

The Colorado Supreme Court issued its opinion in People v. Laeke on February 27, 2012.

Criminal Law—Affirmative Defense of Insanity.

The Supreme Court held that where, as here, a defendant has entered a plea of not guilty by reason of insanity and the prosecution concedes that the defendant was insane at the time of the commission of the offense, the defendant has neither a statutory nor a constitutional right to a jury trial on the affirmative defense of insanity or on the merits of the charged offense. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case to the appellate court to return it to the trial court for proceedings consistent with this opinion.

Summary and full case available here.