July 22, 2019

Archives for November 18, 2015

Colorado Supreme Court: Storm Runoff Correctly Classified as Designated Ground Water

The Colorado Supreme Court issued its opinion in In the Matter of Water Rights as Applied for by Meridian Service Metropolitan District: Meridian Service Metropolitan District v. Ground Water Commission on Monday, November 16, 2015.

Subject Matter Jurisdiction—Designated Ground Water—Claim Preclusion.

Meridian Service Metropolitan District (Meridian) principally asked the Supreme Court to decide whether storm runoff may be classified as “designated ground water” subject to administration and adjudication by the Colorado Ground Water Commission (Commission), or whether such water is in or tributary to a natural stream, vesting jurisdiction in the local water court pursuant to the Water Right Determination and Administration Act of 1969, CRS §§ 37-92-101 to -602. Meridian also made claim preclusion and public policy arguments and asserted that the Colorado Groundwater Management Act, CRS §§ 37-90-101 to -143, is unconstitutional. The Court concluded that because this case presented a question as to whether the water at issue met the statutory definition of “designated ground water,” the Commission had jurisdiction to make the initial determination of the issue presented. The Court further held that the Commission, and the district court on de novo review, correctly found that a portion of the water at issue met the statutory definition of “designated ground water” and was therefore subject to administration by the Commission. The Court concluded that Meridian’s remaining arguments were not supported by the record or applicable law. The district court’s order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Litigation Finance Companies are Lenders for UCCC Purposes

The Colorado Supreme Court issued its opinion in Oasis Legal Finance Group, LLC v. Coffman on Monday, November 16, 2015.

Uniform Consumer Credit Code—Litigation Finance Transactions—Loans.

The Supreme Court held that litigation finance companies that agree to advance money to tort plaintiffs in exchange for future litigation proceeds are making “loans” subject to Colorado’s Uniform Consumer Credit Code even if the plaintiffs do not have an obligation to repay any deficiency if the litigation proceeds are ultimately less than the amount due. These transactions create debt, or an obligation to repay, that grows with the passage of time. The court of appeals’ judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Hot Pursuit Applies Only to Immediate, Ongoing Crimes

The Tenth Circuit Court of Appeals issued its opinion in Attocknie v. Smith on Monday, August 24, 2015.

Aaron Palmer was shot dead in his house in Oklahoma on August 25, 2012 by Deputy Sheriff Kenneth Cherry, who was attempting to enforce a warrant against Aaron’s father, Randall Palmer, for failure to appear in drug court. Aaron’s widow, Nicole Attocknie, brought § 1983 claims against Cherry and his supervisor, Sheriff Shannon Smith, on behalf of herself, Aaron’s estate, and their minor child. The suit claimed that Cherry violated Aaron’s Fourth Amendment rights by unlawfully entering the house and using excessive force and that Smith was liable for failure to train and supervise Cherry. Both Cherry and Smith raised qualified immunity defenses, but the district court denied their summary judgment motions. Both appealed.

Cherry argued on appeal that he is entitled to qualified immunity because his entry into Aaron’s house was justified by hot pursuit of Randall, who he thought he had seen at the residence. The Tenth Circuit disagreed, finding that hot pursuit was inapplicable to the facts of the case because Randall’s outstanding warrant was over a year old, Cherry was the only person who thought he saw Randall, Randall was not at the residence, and Cherry shot Aaron about two seconds after entering the residence. The Tenth Circuit noted that Cherry’s belief that he saw Randall was not reasonable, and that “hot pursuit” does not apply to crimes that are not immediately ongoing. The Tenth Circuit held that Cherry’s entry into Aaron’s residence was clearly contrary to well-established law, and he therefore is not entitled to qualified immunity.

Smith also appealed the district court’s denial of qualified immunity, arguing that Cherry’s entry into Aaron’s home did not violate the Constitution and even if it did Smith had no duty to supervise or train Cherry because he was not an employee. The district court found that Cherry was Smith’s employee, and, because Smith raised no argument that he would be entitled to qualified immunity even if Cherry were his employee, the Tenth Circuit affirmed the district court’s denial of qualified immunity.

The district court’s denials of qualified immunity to Smith and Cherry were affirmed.

Tenth Circuit: Unpublished Opinions, 11/17/2015

On Tuesday, November 17, 2015, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Lysak v. Lynch

Watson v. Bear

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.