August 25, 2019

Archives for June 26, 2012

Colorado Supreme Court: Public Utilities Commission Did Not Abuse Discretion by Striking Substantial Portions of Testimony

The Colorado Supreme Court issued its opinion in Glustrom v. Colorado Public Utilities Commission on June 25, 2012.

Recovery of Costs—Unjust and Unreasonable Rate Order—“Used and Useful”—Exclusion of Testimony.

In 2005, with the approval of the Public Utilities Commission (PUC), the Public Service Company of Colorado (Xcel) began constructing a coal-fired electric power unit known as Comanche 3. When Xcel sought to recover a portion of its construction costs nearly four years later during a rate proceeding, Leslie Glustrom intervened. Glustrom sought to introduce testimony that Xcel acted improperly and, consequently, should not recover its costs. The PUC excluded most of her testimony, a ruling that Glustrom challenged. Glustrom separately challenged the depreciation rate and the possibility that Comanche 3 might not be “used and useful” at the time rates went into effect. The PUC denied her challenges, and the district court affirmed.

The Supreme Court held that the PUC did not abuse its discretion when it struck substantial portions of Glustrom’s testimony pursuant to the Colorado Rules of Evidence. Further, the depreciation rate approved by the PUC was established pursuant to law and in accordance with the evidence. The Court also held that the PUC was free to exercise its discretion in departing from a strict application of the “used and useful” principle. Glustrom failed to meet her burden in showing why such a departure here would result in a rate that is unjust and unreasonable in its consequences.

Summary and full case available here.

Colorado Supreme Court: Oil and Gas Conservation Commission Has Broad Authority to Promulgate Rules Governing Permitting Process

The Colorado Supreme Court issued its opinion in Colorado Oil and Gas Conservation Commission v. Grand Valley Citizens’ Alliance on June 25, 2012.

Application for Permit to Drill—Hearings.

Grand Valley Citizens’ Alliance filed a complaint alleging it was entitled to a hearing on an application for permit to drill pursuant to CRS § 34-60-108(7) of the Oil and Gas Conservation Act. The district court dismissed the complaint. The court of appeals reversed the district court’s judgment, holding that under subsection 108(7), Grand Valley was entitled to a hearing because it had a filed a petition on a matter within the jurisdiction of the Colorado Oil and Gas Conservation Commission.

The Supreme Court reversed the court of appeals’ judgment, holding that § 34-60-108(7) requires a hearing only for rules, regulations, and orders. Permits are governed by CRS § 34-60-106(1)(f), which grants the Commission broad authority to promulgate rules governing the permitting process, including the authority to determine who may request a hearing.

Summary and full case available here.

Colorado Supreme Court: Defendant Not in Custody When Statements Made; No Miranda Warnings Required

The Colorado Supreme Court issued its opinion in People v. Figueroa-Ortega on June 25, 2012.

Miranda Warnings—Custodial Interrogation.

The People brought an interlocutory appeal pursuant to CRS § 16-12-102(2) and CAR 4.1 challenging the district court’s suppression of statements made by defendant to a police detective. The district court found that the statements in question were the product of custodial interrogation, without the benefit of Miranda warnings. The Supreme Court reversed the suppression order of the district court, holding that because defendant was not in custody at the time he made the statements in question, no Miranda warnings were required.

Summary and full case available here.

Colorado Supreme Court: Attorney Did Not Owe Medical Providers the Duties of Fiduciary to Give Rise to Tort Liability for Failure to Disburse Money from COLTAF

The Colorado Supreme Court issued its opinion in Accident and Injury Medical Specialists, P.C. v. Mintz on June 25, 2012.

Colo. RPC 1.15—Attorney’s Fiduciary Duties as Trustee of COLTAF Account.

The Supreme Court held that the medical providers in this case may not maintain a breach of fiduciary duty tort action against attorney David Mintz based on his obligations as trustee of a COLTAF account. Although Mintz may have had ethical or contractual obligations to disburse money his clients owed to the providers, Mintz did not owe the medical providers the duties of a fiduciary that give rise to tort liability. The judgment of the court of appeals was affirmed.

Summary and full case available here.

Colorado Supreme Court: Department of Human Services Is Not “Victim” of Child Abuse and Not Entitled to Restitution for Fulfilling its Mandated Duty

The Colorado Supreme Court issued its opinion in People v. Padilla-Lopez on June 25, 2012.

CRS § 18-1.3-602—Criminal Case Restitution—“Victim”—Aggrieved by the Wrongful Conduct of the Offender—Elements of Underlying Offense—Department of Human Services.

The Supreme Court affirmed the court of appeals’ holding that the El Paso County Department of Human Services (DHS) is not a “victim” entitled to restitution under CRS § 18-1.3-602(4)(a). Because DHS is not “aggrieved by” the crime of child abuse, the restitution statute does not allow DHS to recover costs it has expended in the course of fulfilling its statutorily mandated duty to provide necessary care and guidance to dependent and neglected children.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 6/25/12

On Monday, June 25, 2012, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Oseguera-Garcia v. Holder, Jr.

Baltazar v. Shinseki

Townsend-Johnson v. Cleveland

Heidtke v. Corrs. Corp. of America

United States v. Dayton

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

Abuse of Power in Arizona: The Colorado Attorneys Who Successfully Prosecuted the Largest Attorney Ethics Case in History

On July 18, 2012, Colorado Attorney Regulation Counsel John Gleason and Chief Deputy Jamie Sudler will be in the CBA-CLE classroom to share their experiences from their two-year investigation and prosecution in Maricopa County and what became the “most significant attorney discipline case to ever go to hearing.”

Their story begins with years of intimidation and retaliation by the former Maricopa County Attorney. His targets were sitting judges, County Supervisors, County administrators, and private lawyers. After years of prosecutorial misconduct, the Rule of Law in Maricopa County was fast disappearing. As the elected head of the fourth-largest county in the United States, his misuse of power led to the largest lawyer discipline prosecution in history (chronicled in a 33-count, 247-page opinion).

Over the course of their investigation and prosecution, Gleason and Sudler were subject to shocking levels of harassment and intimidation as they worked to bring down a web of abuses at the highest levels. This program will allow them to speak directly to attorneys so that their extensive investigation into the ethical abuses in Maricopa County can serve as a lesson about prosecutorial misconduct, the Rule of Law, and professional conduct. You won’t want to miss this opportunity to hear first-hand about their experience in Arizona and their attempt to return justice to Maricopa County.

Law Week Colorado recently ran a story, Into The Shadows, which documented Gleason’s and Sudler’s investigation. Read an except below, followed by registration information.

The Arizona Bar Association, which licenses and regulates attorneys, . . . asked the Supreme Court to appoint an independent investigator to look into possible ethical violations by [Andrew] Thomas and two subordinates — Lisa Aubuchon and Rachel Alexander. The court reached out to a trusted name, the person who’d just helped revamp the state’s attorney ethics system. Regulation counsel Gleason and his team would be paid by Arizona, set up shop in that state’s Supreme Court building and somehow still manage the Colorado office.

When the chief justice first called, Gleason was far from certain of a positive outcome.

Either way, he and Sudler knew from the beginning this was a career case. As Thomas’ own attorney put it in the weeks leading up to the decision, “This was the largest and most significant attorney discipline case to ever go to hearing.”

It would also be the toughest. In a sense, Gleason and Sudler carried on their backs the hopes of a legal community long frustrated with what Phoenix’s mayor termed a “reign of terror.” Numerous ethics complaints had been filed against Thomas in the past, but none came to fruition.

The case was a piñata waiting to burst open. And when it did, the two attorneys had to deal with more than the legal soap opera. They became targets themselves. As Sudler would later say, “I never thought we’d get through it.”

CLE Program: Prosecutors on Trial – The Rule of Law or Unfettered Discretion

This CLE presentation will take place on Wednesday, July 18. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.