Category Archives: Administrative

Robert Cikraji v. Daniel Snowberger, Superintendent, Durango Public Schools, Andrew Burns, Roxanne Perrin, David McMillian, Paul Angelico, Curt Wilson, 2015COA66 (May 7, 2015)

Opinion in pro se Plaintiff’s appeal published; parent was engaging in the unauthorized practice of law. The Colorado High School Activities Association’s bylaws allows athletes to compete on “any other team, in any non-school activity or event in that sport during that sports season with the express written permission of the principal.” Plaintiff’s son, a Durango HS athlete won a 10k cross country race in Ohio but did not get permission to compete and was suspended from one meet. Plaintiff, apparently an Ohio lawyer, sued on behalf of his son. The court of appeals affirmed the trial court’s dismissal. It noted many failures to comply with the CAR. And, Plaintiff engaged in the unauthorized practice of law by bringing claims on behalf of his son. Plaintiff’s case was dismissed because he failed to comply with CGIA notice requirements, depriving the court of jurisdiction.

https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1160-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9772&courtid=1

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Filed under Administrative, Attorney Regulation, Government, Proceedure

Proposed revisions to CRCP – Public Hearing April 30, 2015

[A message from the CBA Chair of the Litigation Section. A link to a Redline version of the proposed changes is provided below]

Dear Colleagues:

There are, pending before the Colorado Supreme Court, proposed changes to the Colorado Rules of Civil Procedure. Significant changes to Rules 16, 26, 34, 37 and 54 are proposed which raise lots of questions. Do you understand the meaning of “proportionality” as defined in proposed new Rule 26(b)(1)? Can you depose an expert in 3 hours as limited by proposed new Rule 26(b)(4)(A)? Do you agree with the limitations on discovery relative to an expert’s opinion as provided in proposed Rule 26(b)(4)(D)?

The public hearing concerning the proposed rule changes which will be held on April 30, 2015. The Supreme Court is presently seeking public comment about the proposed rules in advance of that hearing. April 17, 2015 is deadline for submission of written public comments.

The Litigation Section Council is working toward formulating comments on behalf of the Litigation Section membership to be submitted to the Supreme Court. If you have comments concerning the proposed rule changes that you would like to have considered by the Council, please submit your comments to Greg Martin the Section’s CBA staff liaison at gmartin@cobar.org no later than March 5, 2015.

A redlined version of the proposed revisions can be found as a link in the Winter, 2015 CBA Litigation Section Newsletter on the CBA website, and are attached to this e-mail. Thank you.

Peter R. Black
Chairperson, CBA Litigation Section Council

2015 proposed rule changes CRCP – redline

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Filed under Administrative, Proceedure

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, 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

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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Milton Michael Trujillo, Insurance Producer with Bail Bond Authority, License No. 60267 v. Colorado Division of Insurance, 2014CO17 (March 17, 2014)

“We firmly believe that under the law every person is considered innocent until proven unable to pay us back.”  Skip Hunter, Bail Bondsman. Bail bondsman accepted money to post bond, but did not post the bond or return the money. CRS 10-2-704 imposes fiduciary duties on “insurance producers” such as bail bondsmen. At common law, suretyship law controlled bail bondsmen, which the Court relied on for this Opinion. There are three parties to a suretyship: principle (criminal defendant), surety (bail bondsman), and the creditor (the court). A creditor is akin to an insured under the insurance statutes, and the fiduciary duty is owed to the insured. Thus, the bail bondsman did not owe any fiduciary duties to the criminal defendant. The case was remanded because it was not clear that the Insurance Commission would have reached the same result using the correct interpretation of the law.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC672.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9287&courtid=2

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Filed under Administrative, Government, Insurance, Torts

Alex J. Martinez, as Manager of Safety for the City and County of Denver, v. Denver Firefighters Local No. 858, IAFF, AFL-CIO, 2014CO15 (March 3, 2014)

“[D]iscipline exists outside the ambit of collective bargaining.” Opinion. Firefighters Union sued Denver, claiming new disciplinary rules violated its 1971 collective bargaining agreement (CBA) by altering the terms and conditions of employment. Denver argued the City Charter vested the city with the unilateral right to draft disciplinary rules. The trial court issued injunction, preventing enforcement of the new rules, and the Court of Appeals affirmed, finding the rules to be a term and condition of employment, subject to the agreement. Deciding an issue of first impression, the Colorado Supreme Court held the plain language of the City Charter expressly granted Denver the unilateral right to draft and implement disciplinary rules, and that the rules were not included in the CBA as a term or condition of employment, subject to collective bargaining.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC736.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9266&courtid=2

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Filed under Administrative, Government

Martin Foster Egelhoff v. Lesley Joe Taylor, 2013COA137 (Sept. 26, 2013).

“When you have no basis for an argument, abuse the [judge].” Cicero. After pleading guilty to criminal charges, an inmate sent his sentencing judge documents claiming the judge owed him $500 million. After the inmate filed a lien against the judge’s property, the judge sought and was granted an order declaring the lien spurious and invalid pursuant to CRS § 38-35-204 and CRCP 105.1. On appeal, the inmate claimed the court erred in finding the lien invalid, but did not provide any legal or factual support for its validity. Further, the inmate argued the judge failed to exhaust administrative remedies before challenging the lien. The court of appeals held that, with no supporting documentation for the lien, the court properly invalidated the lien. Further, the judge’s actions complied with statutory requirements, making administrative exhaustion unnecessary and impossible.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1963-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9097&courtid=1

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Filed under Administrative, Property

Mountain-Plains Investment Corporation; John Robert Fetters, Jr.; Joann Dransfeldt Fetters; A. Sue Fetters; and John R. Fetters III, v. Parker Jordan Metropolitan District, 2013COA123 (August 15, 2013)

“Sunlight is the most powerful of all disinfectants.” Justice Brandeis. Plaintiffs sought access to emails between a quasi-governmental agency (District), its management company, and its consultants on a water project. Plaintiffs sued for violations of the Colorado Open Records Act (CORA), because the District claimed it did not possess emails sent only between its consultants, and sought $16k for production of the records it did have. CORA defines public record as one “made, maintained, or kept by the state.” The court held that, while emails to or from the District or its management company are public record, those only between its consultants were not made, maintained, or kept by the District. Further, the court found the fee structure of $25/hour for collection of records and segregation and logging of privileged materials reasonable under CORA.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1034-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9060&courtid=1

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Filed under Administrative, Government

Marilyn Marks v. Gessler, Colorado Secretary of State and Judd Choate, [Director of Elections], 2013COA115 (Aug. 1, 2013)

“Nobody will ever deprive the American people of the right to vote except the American people themselves and the only way they could do this is by not voting.” – FDR. Marks filed a complaint with Gessler claiming violations of federal election laws (HAVA). Gessler dismissed the complaint without a hearing for lack of standing. Marks appealed to the district court and won. In a complex ruling, the court of appeals affirmed because 1) the state’s APA provides for judicial review of administrative HAVA determinations; 2) federal and state HAVA laws conflict regarding standing, so the federal rule controls; and 3) HAVA did not create a privately enforceable federal civil right. Procedurally, the court 1) identified the final appealable order; 2) affirmed sua sponte entry of summary judgment; and 3) held state and federal courts have subject matter jurisdiction to review HAVA appeals.

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Filed under Administrative, Appellate Review Challenged, Constitutional, Government