Welcome to the Colorado Litigation Report

The Colorado Litigation Report is an online resource that tracks and summarizes Colorado appellate court decisions affecting civil and commercial law. Summaries answer three questions: what was the case about, what legal rules does it stand for, and how is it important? Each post answers all three questions in 750 characters or less. Posts are engaging, tell the story of the case, and summarize the legal result — in about 30 seconds. In a busy world, the CLR’s micro-summaries provide premium information and significant time-value to any practice or business.

When it comes to Colorado Supreme Court coverage, the CLR is the most comprehensive in the state. The CLR provides a single place to find original jurisdiction and certiorari grants. And the CLR is the only place to find which justice/s would have granted issues that were denied.

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Filed under Commentary

Gary Justice, Kathleen Hopkins, Eugene Halaas, Jr., and Robert Laird, Jr. v. The State of Colorado, Governor Hickenlooper, Colorado PERA, Carole Wright, and Maryann Motza, 2014CO75 (Oct. 20, 2014)

A contract is a promise the law will enforce. The Contract Clauses of Colorado’s and the US’s Constitutions protect existing contracts from laws that would later impair their performance. Public employees have received retirement benefits from PERA since 1931. Cost of living adjustments (COLA) began in 1969 and have evolved ever since. In 2000, the statutory COLA rate was 3.5%. In 2010, the legislature changed it to 2%. Employees who retired between 2001 and 2010 sued the State for violating the Contracts Clause, claiming a violation of their contractual right to the 3.5% COLA at the time of their retirement. The Court ruled there was no contract right guaranteeing a particular COLA formula because 1) it has changed repeatedly over time and 2) there is no express intent that the 2000 legislature intended to bind the 2010 legislature regarding the COLA formula for pre-2010 retirees.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC906.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9546&courtid=2

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Filed under Constitutional, Contracts, Government, Governor, State Agency

Colorado Supreme Court to live video stream oral argument in 13SC394 (Brandon Coats v. Dish Network, LLC.)

Coats v. Dish Network (covered by the CLR) raises two issues that have generated a great amount of interest by the public:

Whether the Lawful Activities Statute, Section 24-34-402.5, C.R.S., protects employees from discretionary discharge for lawful use of medical marijuana outside the job where use does not affect job performance.

Whether the Medical Marijuana Amendment makes the use of medical marijuana ‘lawful’ and confers a right to use medical marijuana to persons lawfully registered with the state.

The Lawful Activities Statute protects employees from termination for off-the-job activities. Plaintiff, a quadriplegic, is licensed to use medical marijuana. Defendant fired plaintiff after he tested positive for marijuana, which was a violation of its drug policy. The court of appeals, applying the ordinary meaning of “lawful activity” as used in section 24-34-402.5, held plaintiff’s medical marijuana use, unlawful under federal law, was not “lawful.”

Because demand for seats in the courtroom outweighs availability, the Court will live stream the arguments on the Internet and the Court will live stream the argument in the first floor Court of Appeals courtroom.Tuesday, Sept. 30, 2014, 9 to 10 a.m.

Live video streaming can be accessed through: http://broadcast.coloradorcjc.gov/

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In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)

Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA209.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9408&courtid=2

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Filed under Administrative, Commissions or Boards, Discovery, Government, Interlocutory Review

Scott Gessler, as Secretary of State v. Colorado Common Cause and Colorado Ethics Watch, 2014CO44 (June 16, 2014)

When the financial burden of state regulation of issue committees approaches or exceeds the value of the financial contributions to a political effort, such regulations may unconstitutionally burden freedom of association. Samson v. Buescher. Colorado’s Constitution art. XXVIII sec. 2(10)(a)(II) and CRS 1-45-108 establish a $200 threshold for registering issue committees and for reporting contributions and expenditures retro- and prospectively (Limits). Samson found the Limits to be unconstitutional as applied to a small-scale issue committee. To address the confusion caused by Samson, Gessler promulgated CCR 1505-6:4.27 (now Rule 4.1), setting the threshold at $5000, applied prospectively only. The Court set aside Rule 4.1 as contrary to the still-valid Limits, which could be constitutionally applied in cases dissimilar from Samson’s $2000 in contributions.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC783.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9396&courtid=2

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Filed under Administrative, Constitutional, Elections, Separation of Powers

Jason Kelly MD and Mauricio Waintrub MD v. Vasilios Haralampopoulos, 2014CO46 (June 16, 2014)

While the term “treatment” has a prospective focus, the term “diagnosis” does not. – Opinion. After an ER visit, Patient was left brain dead. Afterwards, his roommate asked a doctor if past cocaine use could have been a cause. At trial, roommate’s statement to the doctor was the focus of the defense case. The trial court admitted the evidence and doctors won. The court of appeals held the admission of drug-use evidence was error. The Court disagreed, holding that CRE 803(4), the medical diagnosis or treatment hearsay exception, applied. Statements offered to determine the nature, source or cause of a condition, which also describe medical history and are pertinent to the diagnosis, are excepted, as in this case. No further inquiry into roommate’s motives was required, nor was subjective reliance by the doctor. And, though prejudicial, the statements were not unfair. Doctors win.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC889.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9398&courtid=2

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Filed under Evidence, Experts, Personal Injury

Nicole S. Hanlen, Lynn D. Ussery, James H. Joy, June Marie McNees, Kelly L. McNees, Karen Marquez, Meagan Gabaldon, and David J. Rodenbaugh, v. Scott Gessler as Colorado Secretary of State, and Karen Long, as Clerk and Recorder for Adams County; Jim F. Candelarie, as Clerk and Recorder for the City and County of Broomfield; and Frances E. Mullins, as Designated Election Official for Adams 12 Five Star School District, 2014CO24 (April 7, 2014)

“Employ every economy consistent with thoroughness, accuracy and reliability.” – Arthur C. Nielsen. An election official failed to notice a candidate was ineligible until after ballots were printed. The Secretary issued an emergency Rule of general applicability allowing election officials to declare the candidate ineligible and direct that votes are invalid and must not be counted. The Court held the Rule invalid. First, it conflicts it conflicts with a statute allowing votes for a disqualified candidate in a partisan election to be counted. Second, it usurps the court’s express authority to determine eligibility issues after the ballot is certified. The Court’s appellate jurisdiction was not based on the election code, however. Rather, the Court invoked CAR 21 sua sponte and it limited its decision to determining the validity of the Rule under the APA, not the validity of the election.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA306.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9312&courtid=2

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Filed under Administrative, Elections, Schools

Today the Colorado Judicial Branch launches a Web site providing online educational resources about the judiciary and rule of law

The Colorado Supreme Court issued the following press release today launching an online resource center to increase the public’s understanding and access to Colorado’s Judicial System and the rule of law:

DENVER – The Colorado Judicial Branch today launched www.cjlc.org, a Web site dedicated to the Ralph L. Carr Colorado Judicial Learning Center and other online educational resources about the judiciary and rule of law. “I am very excited about the cjlc.org site and showcasing what I believe are some of the best educational resources available in any courthouse anywhere in the country,” said Colorado Supreme Court Chief Justice Nancy E. Rice. “I personally invite you, your family and friends to check out the site and then come visit the building and experience the Judicial Learning Center in person.”

The Web site features a video welcome message from the Chief Justice, as well as a virtual tour and description of the Judicial Learning Center’s 10 exhibits. The site also provides educators with downloadable lesson plans from the Colorado Department of Education and Supreme Court’s Courts in the Communityprogram.

Housed in the Ralph L. Carr Colorado Judicial Center (2 E. 14th Avenue, Denver, CO 80203), the 3,800-square-foot Judicial Learning Center is an innovative and engaging educational environment designed to provide visitors, young and old alike, with a better understanding of the laws and freedoms that govern our citizens, state and country. The Judicial Learning Center is open Monday-Friday 8 a.m. to 5 p.m. and admission is always free.

The Learning Center offers numerous interactive and standalone exhibits that teach the importance of the rule of law, how the state and federal court systems operate and even offers interactive role-playing opportunities. A group of judges, lawyers, educators and others spent more than 3 years designing and building the learning center.

Visitors to the Website may also book a guided tour of the Ralph L. Carr Colorado Judicial Center for groups of 15 or more. Guided tours include a visit to one or more of the courtrooms (as available), discussion about the Colorado court system and the Colorado Judicial Branch, a tour of the Ralph L. Carr Colorado Judicial Center and its public art, a visit to the Colorado Supreme Court Library, and time in the Colorado Judicial Learning Center.

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Erin A. Young, individually and on behalf of and as next friend of C.Y.; and C.Y., a minor, through his parent Erin A. Young, v. Brighton School District 27J, 2014CO 32 (May 19, 2014)

“When sidewalks are not available, pedestrians are forced to share the street with motorists, access to public transportation is restricted, and children might not have safe play areas.” – US DOT.  Here, a child slipped on a puddle in a walkway running between a public school and its playground. Examining the CGIA, the Court rejected the argument that the “icy walkway waiver” was mutually exclusive of the “recreation waiver.” Rather, each waiver provides a potential avenue for waiver of tort liability, any one of which might suffice. Next it held that, unlike a playground or a parking lot, the walkway is not a “public facility” because: 1) it lacked an intrinsic recreational connection with the playground; 2) it did not broadly promote the purpose of the playground; and 3) excluding walkways like this one was consistent with the legislature’s intent. The school was immune from suit.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC543.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9360&courtid=2

 

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Filed under Defenses, Government, Immunity, Personal Injury, Schools, Torts

Marilyn Daniel v. City of Colorado Springs, 2014CO34 (May 19, 2014).

“My dream is to have the park system privatized, and run entirely for profit by corporations. Like Chuck E. Cheese.” – Ron Swanson, Parks and Recreation. People can sue governments for injuries occurring at a 1) “public” 2) “facility” 3) “located in” a 4) “recreation area.” The Court defined those 4 terms as follows: 1) accessible and benefiting the public; 2) includes parking lots; 3) promotes recreation; and 4) an area whose primary purpose is recreation. Here, a parking lot next to a public golf course met the criteria. The parking lot was accessible to the public, allowed golfers to conveniently access the course, and golfing was the primary recreational purpose promoted by the lot. The city was not immune from plaintiff’s suit arising from her injury in the parking lot. Two justices would arrive at the same conclusion, but by allowing the city’s designation to drive the analysis.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC908.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9362&courtid=2

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Filed under Defenses, Government, Immunity, Personal Injury, Torts

St. Vrain Valley School District RE-1J and Cathy O’Donnell v. A.R.L. a minor; Randy Loveland; and Mary Nicole Loveland, 2014CO33 (May 19, 2014)

A playground through a lawyers eye: “Although the individual pieces of equipment each promote specific play activities (e.g., swinging or playing in the sand), they nevertheless collectively promote the common purpose of play and together make a playground a ‘facility’ by virtue of the strong relationship between the individual components.” – Opinion. In this case, applying and expanding on the analysis set forth in Daniel v. Colorado Springs, the Court concluded that a public school playground and its collection of equipment is a “public facility” “located in” a “recreation area.” The case focused on what a “public facility” is: 1) relatively permanent or affixed to land; 2) man-made; 3) accessible to the public; and 4) maintained by a public entity for a common public purpose. The zip line that injured the plaintiff was merely a “dangerous condition,” not itself a “facility.”

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC631.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9361&courtid=2

 

 

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Filed under Defenses, Government, Immunity, Personal Injury, Schools, Torts