Category Archives: Appellate Review Challenged

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

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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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Just In Case Business Lighthouse, LLC, v. Patrick Murray, 2013COA112 (July 18, 2013)

“Integrity has no need of rules.” Albert Camus. There is no question that paying a testifying witness a contingent fee based on the outcome of the case is prohibited. But such evidence is not excluded per se. The court of appeals came to that conclusion because trial courts have discretion to admit testimony generally. Next, the court of appeals determined that the paid witness was properly permitted to summarize evidence already admitted into the record without violating CRE 602. Similarly, the witness’s summary exhibits were properly admitted, again because they were based on admitted evidence. Moving on, it held that a nonparty at fault could not be designated based on vicarious liability alone. The court then upheld the trial court’s decisions 1) to deny a directed verdict on a fraud claim and the economic loss rule and, 2) found a CRE 701 objection was not preserved for appeal.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1261-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9033&courtid=1

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Filed under Appellate Review Challenged, Attorney Regulation, Contracts, Evidence, Torts

United States Taekwondo Committee and U.S. Kukkiwon, Inc., v. Kukkiwon, a Republic of Korea special corporation, 2013COA105 (July 3, 2013)

The most difficult part of [taekwondo] is … taking the first step across the threshold of the dojang door.” ― Doug Cook. This case is about the threshold issue of appellate court jurisdiction over an interlocutory appeal from a denial of a motion to dismiss claiming Foreign Sovereign Immunities Act (FSIA) immunity and asserting the Act of State Doctrine. Denial of FISA immunity is immediately appealable in federal court. CRS 13-4-102 only permits appeals from final judgments. The court of appeals held it had jurisdiction over the FISA order and affirmed, citing federal law, principles of neutrality between state and federal courts and sound appellate practice. But, it lacked jurisdiction over the Act of State Doctrine appeal because the Doctrine is a form of preclusion based on facts. Finally, it held that Colorado courts of appeals do not have pendent appellate jurisdiction.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0816-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9022&courtid=1

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Filed under Appellate Review Challenged, Contracts, Government, Interlocutory Review

Taylor and Alexa Lobato, et. al. and S. Ortega and B. Ortega, et. al. , v. The State of Colorado; Colorado State Board of Education; Robert K. Hammond, as Commissioner of Education; and John Hickenlooper, as Governor, 2013CO30 (May 28, 2013)

Catch 22: “A situation in which a desired outcome … is impossible to attain because of a set of inherently illogical … conditions.” Amer. Heritage Dictionary. Plaintiffs sought to remedy inherent disparities in an educational system uniformly inequitable: the wealthiest district can raise $219,000 per pupil and the poorest only $1,100. However, the standard is “thorough and uniform.” The Court held this means complete, comprehensive, and consistent, not equal. Also, the Constitution requires Local Control, so districts must control locally-raised education funds without the state mandating how such funds are used. The system is constitutional because it meets these standards. The dissents disagreed, finding the system’s disparities are not rationally related to the standards; they would also require the legislature to equitably fund its educational mandates.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA25.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8959&courtid=2

For a link to all of the briefs filed in this case, click HERE.
(The CLR does not endorse or reject the views of “Children’s Voices” whose website is linked here).

Prior Opinions
Note: justiciable means the ability of a court to issue an opinion on the substantive questions presented.

Court of Appeals No. 06CA0733 , issued January 24, 2008

Holding: “We conclude that as political subdivisions, the school districts lack standing, and that the parents’ challenge to the adequacy of school financing is a nonjusticiable political question.”

Supreme Court No. 08SC185, October 19, 2009

Holding: “We reverse the court of appeals’ holdings that the plaintiff school districts lack standing to sue the state and that the plaintiffs have alleged a nonjusticiable claim.”

Trial Court Opinion upon remand from the Supreme Court, December 9, 2011.

Holding: “The Court concludes that the Colorado public school finance system is not rationally related to the mandate to establish and maintain a thorough and uniform system of free public schools. On the contrary, the public school finance system is irrational, arbitrary, and severely underfunded. This results in the denial of the rights of the Individuals Plaintiffs guaranteed by Article IX, section 2 of the Colorado constitution and the rights and powers of the School Districts pursuant to Article IX, sections 2 and 15.”

1 Comment

Filed under Appellate Review Challenged, Constitutional, Government, Interlocutory Review

Fidelity National Title Company, f/k/a Security Title Guaranty Company v. First American Title Insurance Company, 2013COA80 (May 23, 2013)

It was a $1million mistake. A title company (Agent) closed 2 loans, for 2 different banks, 2 months apart, assuring both banks that they were first position lienholders for the same property. The Agent’s underwriter eventually paid over $1 million to resolve the banks’ competing claims over foreclosure proceeds. Underwriter sued Agent, and won. Agent appealed, challenging the interpretation of their contract and the applicability of a statutory defense for reliance on a payoff statement. The court of appeals held: 1) Agent was an “escrow” because it “handled” money during the closings, 2) Agent couldn’t rely on a “payoff statement” under CRS 38-35-124.5, as it didn’t indicate the amounts owed to the actual creditor or holder of the debt, and 3) the contractual phrase “actual prejudice” meant “substantial detriment to the significant interests of the party.” Affirmed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0722-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8956&courtid=1

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Filed under Appellate Review Challenged, Contracts, Insurance, Property

Brandon Coats v. Dish Network LLC, 2013COA62 (April 25, 2013)

Despite rumors to the contrary, the use of medical marijuana is not a “lawful activity” under Colorado law; at least not under CRS 24-34-402.5, the Lawful Activities Statute protecting 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.” Although defendant defeated plaintiff’s claim, it was not entitled to attorneys’ fees pursuant to CRS 13-17-201, mandating fee awards, because the claim was not a “tort.” First, it is not an invasion of privacy tort and second, it lacks the general characteristics of a tort.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0595%20&%2012CA1704-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8922&courtid=1

CERTIORARI GRANTED

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Filed under Appellate Review Challenged

In the Matter of Attorney G, 2013CO27 (April 22, 2013)

Like the thunk of a mechanical stamp on a wooden desk denying a passport application, the outcome of this case reverberates with the caption: “Rationale Disapproved.” An immigration attorney’s (“G”) representation is paid by the wife of a foreign citizen in deportation proceedings. The client was deported with an unpaid balance. G, who had obtained possession of the wife’s passport, kept it to secure payment pursuant to CRS 12-5-120, the retaining lien statute. The Attorney Regulation Counsel filed an ethics complaint under Colo. RPC 1.15(b) & 1.16(d). The Board dismissed since holding the passport was not impermissible. Exercising its plenary authority over attorney disciplinary matters, the Court determined that 12-5-120 doesn’t permit a lien on a passport, as it is the property of the federal government, not the client. Dismissal was upheld, but for different reasons.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA239.pdf
http://www.cobar.org/opinions/opinion.cfm?opinionid=8911&courtid=2

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Patrick Youngs, v, Industrial Claim Appeals Office; White Moving and Storage, Inc.; and Pinnacol Assurance, 2013COA54 (April 11, 2013)

“Time is what we want most, but what we use worst.” – William Penn. In this workers’ compensation case, 2 Administrative Law Judges (ALJ) each issued an order denying Claimant’s claim for benefits based on 1) fraud, and 2) a worsening condition, respectively. Claimant appealed the first (interlocutory) order, before the second order was final. The court of appeals held that under CRS 8-43-301, Claimant was required to file his appeal of the interlocutory order after the final order. He didn’t, so the IACO lacked jurisdiction to hear the appeal of the first order. The court also upheld the second order because the ALJ properly exercised her discretion to 1) refuse to touch the injured shoulder during the hearing, and 2) limit the cross-examination of the IME. Finally, Claimant’s request that the ALJ recuse herself after the hearing was untimely. The IACO’s decisions were upheld.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0257-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8906&courtid=1

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BDG International, Inc., v. Robert J. Bowers and Auxiliary Graphic Equipment, Inc., 2013COA52 (April 11, 2013)

Maritime law applies in Colorado. Defendants (D) bring goods from Australia to CO. Plaintiff (P) is a subcontractor for packing and shipping. D is not paid and then fails to pay P. P asserts a lien against D’s goods, so D enters into a payment agreement (governed by CA law) with P. D breaches, P sues and wins. On appeal, D argued the state courts lack subject matter jurisdiction because the claims were subject to federal Maritime law. The court of appeals held that federal courts have exclusive jurisdiction only for in rem maritime claims, but that state courts have concurrent jurisdiction over these in personsam maritime claims. The court of appeals also then held: 1) judgment was final despite directions regarding post-judgment satisfaction; 2) there was no setoff for judgments against different parties; and 3) the trial court correctly resolved the contract claims under CA law.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/11CA1581-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8904&courtid=1

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