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.

The CLR will now link to the CBA’s page containing summaries rather than its copy of the opinions because CBA archived opinions are available to members only.

[Due to time constraints, the CLR no longer posts on all court of appeals civil opinions. The CLR also does not summarize Water Court appeals or Workers’ Compensation appeals].

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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Lindi Dwyer and Paul Dwyer, as individuals and parents of Jayda Dwyer, Joslyn Dwyer, Janesha Dwyer, and Jentri Dwyer, et. al. v. The State of Colorado; Robert Hammond as Commissioner of Education; and John Hickenlooper as Governor of the State of Colorado, 2015CO58 (Sept. 21, 2015)

“Reading the two sets of briefs, it’s like two ships passing in the night” – Coats, J. (oral argument). This case raised one of two questions about Amendment 23’s (Am 23) school funding mandate: what does “base” mean or, was it rendered meaningless? A “negative factor” was created by the legislature for the purpose of reducing the State’s school funding obligations. Am 23 mandates annual increases to “statewide base per pupil funding.” The Negative Factor reduces nearly all other parts of the funding formula without reducing “base” funding. The majority held that so long as there is no reduction in “base funding,” the “algebraic significance [of the Negative Factor] within the funding formula is immaterial [to Am 23’s mandate].” The dissent noted that the Negative Factor eliminates the school funding increases intended by Am 23, creating fact questions that preclude dismissal.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2015/15SA22.pdf
http://www.cobar.org/opinions/opinion.cfm?opinionid=9927&courtid=2

Richard Lance Gabriel begins his term as Justice of the Colorado Supreme Court

The Colorado Supreme Court’s 2015-2016 term will start with a new Justice: Court of Appeals judge Richard Gabriel.  He will start his term on September 1, 2015 following the retirement of long-time Justice Gregory Hobbs.

Attached is the PRESS RELEASE related to his appointment.

Taxpayers for Public Education, et. al. v. Douglas County School District, 2015CO50 (June 29, 2015)

“Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions.” Ulysses Grant. Petitioners challenged a scholarship program that required enrollment in a “charter school” and admission to a qualified private school. Taxpayer money funded the scholarship, which was paid to the parents who then paid the private school. Nearly 93% of recipients enrolled in religious schools. The Court held the program unconstitutional under Colorado’s expansive prohibition on public funding of “sectarian” schools because the program “supports and sustains” such schools. The element of private choice was insufficient absent safeguards against funding religious schools. As such, invalidating the program does not violate the 1st Amendment. Petitioners lacked taxpayer standing to challenge the program under a statute.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC233.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9843&courtid=2

Obergefell et. al. v. Hodges, Ohio Dep’t Health, 135 S.Ct. 1039 (June 26, 2015) Part II: Dissents

The CLR does not normally post summaries of US Supreme Court decisions. In this case, there are immediate implications for Family Law practitioners in Colorado, as well as other civil litigators pursuing or defending claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Therefore, the CLR will issue 2 posts related to this decision. Part I is a summary of the majority opinion and Part II is a summary of the dissenting opinions.

“The fundamental right to marry does not include a right to make a State change its definition of marriage.” Roberts, C.J. The 4 dissenting justices raised various arguments against extending marriage to same-sex couples by Court decree including (in no particular order): 1) the decision should rest with the people, resolved through elected representatives, not 5 lawyers; 2) courts do not substitute their judgment for that of the people; 3) limiting marriage is not an unconstitutional act by a State; 4) liberty is freedom from government action not a claim to government benefits; 5) dignity is neither granted nor taken away by government; and 6) children are best served by a marriage between a man and woman. A shared theme is that by deciding the scope of a Constitutional right, the Court has taken a power it should not claim, has created more division, and ended democratic debate.

The following are all the cases on Writs of Certiorari To The United States Court Of Appeals For The Sixth Circuit decided in this decision:

14–556, James Obergefell, et. al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et. al.;

14–562, Valeria Tanco, et. al., Petitioners v. Bill Haslam, Governor of Tennessee, et. al.;

14–571, April DeBoer, et. al., Petitioners v. Rick Snyder, Governor of Michigan, et. al.;

14–574, Gregory Bourke, et. al., Petitioners v. Steve Beshear, Governor of Kentucky.

Motions to Stay pending Appeal?

C.A.R. 8 addresses motions to stay. Earlier this year, the Colorado Supreme Court amended Rule 8, as well as Rule 27 related to Motions. Although the changes are not particularly substantive, the language has been cleaned up.

Click to see the amendments to CAR 8 and 27 , which went into effect on January 7, 2015.

Brandon Coats v. Dish Network LLC, 2015CO44 (June 15, 2015)

“The federal government shouldn’t be swooping into Colorado to decide how we regulate marijuana any more than it should be swooping in to Louisiana to tell them how they should regulate fried crawfish.” – Rep. Jared Polis. Coats is a quadriplegic confined to a wheelchair. He got a medical marijuana license to treat painful muscle spasms caused by his quadriplegia. Coats consumes medical marijuana at home in accordance with Colorado law. After testing positive for THC, Defendant fired him under a zero tolerance drug policy. Coats sued because generally, an employer cannot fire “any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” CRS 24-34-402.5(1). The Court upheld both lower court decisions finding that “lawful” is not limited to state law. Because pot is illegal under Federal law, its use is not “lawful.”

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC394.pdf

Federal Practice: changes to FRCP and Colo. Dist. Local Rules

Colorado courts often look to the Federal Rules of Civil Procedure to interpret Colorado Rules with a substantially similar Federal counterpart.  (See Garcia v. Schneider Energy Services, Inc., 287 P. 3d 112 – Colo: Supreme Court 2012) (offering a detailed review and analysis of Colorado’s Rule 15 and comparing and contrasting Federal Rule 15).

The US Supreme Court transmitted to Congress on April 29, 2015 changes to the following Federal Rules of Civil Procedure to become effective December 1, 2015 absent contrary Congressional Action:

Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55, and abrogation of Rule 84 and the Appendix of Forms.

The District of Colorado’s Local Rules have been amended as well, but only minimally, and mostly to reflect changes in electronic case filing.

For a copy of the revised rules as submitted to Congress, click 2015 Amendments to FRCP.

For a red-lined copy, click Proposed 2014 Amendments.

Christopher Boyer and Patrick Singson v. Health Grades, Inc., 2015CO40 (June 1, 2015)

Can you sue someone for suing you without violating the First Amendment’s right to petition the government? Yes, in purely private disputes. Imagine you are a former employee and you do something your former employer does not like, as happened to defendants here. Your former employer (plaintiff) sues you. You then want to sue your former employer for suing you claiming abuse of process or tortious interference. Your former employer defends by claiming that its right to sue (petition using the courts) is protected by the First Amendment. Your former employer would be wrong in Colorado. The Court held that First Amendment protections from suits related to matters of public interest (as provided in the POME case) do not extend to purely private disputes. The Court came to the same conclusion in the arbitration context in General Steel, which it extended to this case.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC131.pdf

 

Short Summary of notable changes to the Rules of Civil Procedure effective July 1, 2015

Major changes to the Colorado Rules of Civil Procedure have been in the works for the last few years.  The Civil Access Pilot Project tested many rule changes and the Court took comments and opinions from the public and attorneys earlier this year.  Those changes have now become a reality for civil litigators.  HERE IS A LINK TO THE REDLINE OF THE RULE CHANGES.

The Colorado Rules of Civil Procedure that have been amended are as follows: Rules 1, 12, 16, 16.1, 26, 30, 31, 33, 34, 37, 54, and 121 §1-22, and the Proposed Case Management Order.

If you are familiar with the CAPP Rules, many of these changes will come as no surprise. The new rules are not duplicative of the CAPP rules, however.

Also, the new “Proposed Case Management Order” is not the same as the old “ICMC Joint Reports” that were filed before.  In person or telephonic attendance at an initial case management conference is required unless dispensed of by the court upon the joint request of the attorneys.

CHANGES AND OFFICIAL COMMENTS WORTH NOTING INCLUDE:

Comments to CRCP 1:

“[1] The 2015 amendments are the next step in a wave of reform literally sweeping the nation. This reform movement aims to create a significant change in the existing culture of pretrial discovery with the goal of emphasizing and enforcing Rule 1’s mandate that discovery be administered to make litigation just, speedy, and inexpensive. One of the primary movers of this reform effort is a realization that the cost and delays of the existing litigation process is denying meaningful access to the judicial system for many people.

[2] The changes here are based on identical wording changes proposed for the Federal Rules of Civil Procedure. They are designed to place still greater emphasis on the concept that litigation is to be treated at all times, by all parties and the courts, to make it just, speedy, and inexpensive, and, thereby, noticeably to increase citizens’ access to justice.”

CRCP 16(11) & (12) – CASE MANAGEMENT:

(11) Discovery Limits and Schedule. Unless otherwise ordered by the court, discovery shall be limited to that allowed by C.R.C.P. 26(b)(2). Discovery may commence as provided in C.R.C.P. 26(d) upon service of the Case Management Order. The deadline for completion of all discovery, including discovery responses, shall be not later than 49 days before the trial date. The proposed order shall state any modifications to the amounts of discovery permitted in C.R.C.P. 26(b)(2), including limitations of awardable costs, and the justification for such modifications consistent with the proportionality factors in C.R.C.P. 26(b)(1).

(12) Subjects for Expert Testimony. The proposed order shall identify the subject areas about which the parties anticipate offering expert testimony; whether that testimony would be from an expert defined in C.R.C.P. 26(a)(2)(B)(I) or in 26(a)(2)(B)(II); and, if more than one expert as defined in C.R.C.P. 26(a)(2)(B)(I) per subject per side is anticipated, the proposed order shall set forth good cause for such additional expert or experts consistent with the proportionality factors in C.R.C.P. 26(b)(1) and considering any differences among the positions of multiple parties on the same side as to experts.

CRCP 26(b)(4)(D) – DISCLOSURES (limitations):

(D) Rule 26(b)(3) protects from disclosure and discovery drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded, and protects communications between the party’s attorney and any witness disclosed under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(I) relate to the compensation for the expert’s study, preparation, or testimony;

(II) identify facts or data that the party’s attorney provided and which the expert considered in forming the opinions to be expressed; or

(III) identify the assumptions that the party’s attorney provided and that the expert relied on in forming opinions to be expressed.

COMMENT 20 TO CRCP 26 also notes the following about expert disclosures:

“The 2015 amendment also requires that, if a deposition reveals additional opinions, previous expert disclosures must be supplemented before trial if the witness is to be allowed to express these new opinions at trial. Rule 26(e). This change addresses, and prohibits, the fairly frequent and abusive practice of lawyers simply saying that the expert report is supplemented by the “deposition.” However, even with the required supplementation, the trial court is not required to allow the new opinions in evidence.”

CRCP 33(b)(1) – INTERROGATORIES

(1) An objection must state with specificity the grounds for objection to the Interrogatory and must also state whether any responsive information is being withheld on the basis of that objection. A timely objection to an Interrogatory stays the obligation to answer those portions of the Interrogatory objected to until the court resolves the objection. No separate motion for protective order pursuant to C.R.C.P. 26(c) is required.

CRCP 34 – REQUESTS FOR PRODUCTION

COMMENT 3:

“[3] Rule 34 is changed to adopt similar revisions as those proposed to Fed. R. Civ. P. 34, which are designed to make responses to requests for documents more meaningful and transparent. The first amendment is to avoid the practice of repeating numerous boilerplate objections to each request which do not identify specifically what is objectionable about each specific request. The second amendment is to allow production of documents in place of permitting inspection but to require that the production be scheduled to occur when the response to the document request is due, or some other specific and reasonable date. The third amendment is to require that when an objection to a document request is made, the response must also state whether, in fact, any responsive materials are being withheld due to that objection. The fourth and final amendment is simply to clarify that a written objection to production under this Rule is adequate to stop production without also filing a motion for a protective order.”

CRCP 37 – DISCOVERY SANCTIONS

COMMENT 3:

“[3] The threat and, when required, application, of sanctions is necessary to convince litigants of the importance of full disclosure. Because the 2015 amendments also require more complete disclosures, Rule 37(a)(4) now authorizes, for motions to compel disclosures or discovery, imposition of sanctions against the losing party unless its actions “were substantially justified or that other circumstances make an award of expenses manifestly unjust.” This change is intended to make it easier for judges to impose sanctions.”

CRCP 121 1-22 COSTS AND ATTORNEY FEES

COSTS. A party claiming costs shall file a Bill of Costs within 21 days of the entry of order or judgment, or within such greater time as the court may allow. The Bill of Costs shall itemize and provide a total of costs being claimed. Taxing and determination of costs shall be in accordance with C.R.C.P. 54(d) and Practice Standard § 1-15. Any party that may be affected by the Bill of Costs may request a hearing within the time permitted to file a reply in support of the Bill of Costs. Any request shall identify those issues that the party believes should be addressed at the hearing. When required to do so by law, the court shall grant a party’s timely request for a hearing. In other cases where a party has made a timely request for a hearing, the court shall hold a hearing if it determines in its discretion that a hearing would materially assist the court in ruling on the motion.