“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.
Category Archives: Proceedure
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.
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:
“ 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.
 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
“ 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
“ 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.
William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2015CO26 (April 20, 2015)
The general life cycle of civil litigation: Complaint, Answer, Disclosures, Discovery, Trial. In this case, before the court would allow full discovery, it required the plaintiffs to provide prima facie evidence to support their toxic tort allegations of exposure, injury, and causation arising from the proximity of natural gas drilling operations near their home. Finding the plaintiffs’ evidence lacking, the court dismissed their case entirely. The court of appeals reversed holding that the modified case management order issued by the trial court was not authorized by CRCP 16. The Court agreed, “tapping the brakes,” as the dissent describes it, on active case management. The Court held that CRCP 16, in the context of Rules like 12, 37, and 56, does not authorize a court to fashion its own summary judgment-like filter and dismiss claims during the early stages of litigation.
[A message from the CBA Chair of the Litigation Section. A link to a Redline version of the proposed changes is provided below]
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 firstname.lastname@example.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
“[D]elay in service… cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Opinion. Malm filed her personal injury complaint in 2005, one month before the 3-year time limitation ended. In 2013, Malm found Villegas in Germany, and the District Court reopened the case noting the lack of a rule stating a reasonable time for service in a foreign country. Villegas opposed, arguing that the failure to serve her sooner was an unreasonable delay amounting to a failure to prosecute. The Court held that a delay between filing and service of a complaint beyond the statute of limitations is reasonable only if it is the product of either wrongful conduct by the defendant or some formal impediment to service. Without any facts that Villegas deliberately avoided service, the District Court should have dismissed the case for failure to prosecute.
DISCLAIMER: The Author was an attorney on the brief for Petitioner Malm. Andy Helm assisted in the writing of this post.
Hickenlooper, Governor of Colorado v. Freedom from Religion Foundation, Inc., Mike Smith; David Habecker; Timothy G. Bailey; and Jeff Baysinger, 2014CO77 (Nov. 24, 2014)
No harm, no foul. Individuals have standing to sue the government if the government’s actions cause them an injury-in-fact. An injury can be tangible or intangible, but not indirect or incidental. Taxpayers have standing to sue as taxpayers, if the government expenditure is related to the alleged harm. Here, nonbelievers sued over the constitutionality of Colorado’s Day of Prayer proclamations. The Court dismissed not because the proclamations were unconstitutional, but because the Plaintiffs were not injured by them. The incidental expenditure of public funds on overhead was not sufficient to establish taxpayer standing. Plaintiffs also claimed psychic harm by the issuance of the proclamations that politically excluded them by promoting religion, due to their nonbelief. But the government did not coerce, punish, or prevent them from having or changing their beliefs.
Effective September 5, 2013, Colorado Rule of Civil Procedure 4 (and a reference in Rule 15) has been amended to add a completely new section stating that a case may be dismissed if a defendant is not served within 63 days after the complaint is filed. A copy of the text is below, as well as a link to the court’s official rule change.
Rule 4. Process
(a) through (k) [NO CHANGE]
(l) No Colorado Rule.
(m) TIME LIMIT FOR SERVICE. IF A DEFENDANT IS NOT SERVED WITHIN 63 DAYS (NINE WEEKS) AFTER THE COMPLAINT IS FILED, THE COURT–ON MOTION OR ON ITS OWN AFTER NOTICE TO THE PLAINTIFF–SHALL DISMISS THE ACTION WITHOUT PREJUDICE AGAINST THAT DEFENDANT OR ORDER THAT SERVICE BE MADE WITHIN A SPECIFIED TIME. BUT IF THE PLAINTIFF SHOWS GOOD CAUSE FOR THE FAILURE, THE COURT SHALL EXTEND THE TIME FOR SERVICE FOR AN APPROPRIATE PERIOD. THIS SUBDIVISION (m) DOES NOT APPLY TO SERVICE IN A FOREIGN COUNTRY UNDER RULE 4(d).
Effective as of October 10, 2013, the form for a summons has also been changed to add specific language explaining the rules governing the next steps after a summons is served:
Form 1. SUMMONS
Caption and body of the Summons form [NO CHANGE]
This Summons is issued pursuant to Rule 4, C.R.C.P., as amended. A copy of the Complaint must be served with this Summons. This form should not be used where service by publication is desired.
WARNING: A VALID SUMMONS MAY BE ISSUED BY A LAWYER AND IT NEED NOT CONTAIN A COURT CASE NUMBER, THE SIGNATURE OF A COURT OFFICER, OR A COURT SEAL. THE PLAINTIFF HAS 14 DAYS FROM THE DATE THIS SUMMONS WAS SERVED ON YOU TO FILE THE CASE WITH THE COURT. YOU ARE RESPONSIBLE FOR CONTACTING THE COURT TO FIND OUT WHETHER THE CASE HAS BEEN FILED AND OBTAIN THE CASE NUMBER. IF THE PLAINTIFF FILES THE CASE WITHIN THIS TIME, THEN YOU MUST RESPOND AS EXPLAINED IN THIS SUMMONS. IF THE PLAINTIFF FILES MORE THAN 14 DAYS AFTER THE DATE THE SUMMONS WAS SERVED ON YOU, THE CASE MAY BE DISMISSED UPON MOTION AND YOU MAY BE ENTITLED TO SEEK ATTORNEY’S FEES FROM THE PLAINTIFF.
TO THE CLERK: If the summons is issued by the clerk of the court, the signature block for the clerk or deputy should be provided by stamp, or typewriter, in the space to the left of the attorney’s name.
This case is a fight over $17,000.00. This appeal is about civil procedure. Plaintiff filed an interpleader action to determine who was entitled to funds recovered from a tortfeasor in a personal injury case. Medical Lien Management (MLM) filed an Answer and Counterclaims. Plaintiff then amended the Complaint, which MLM Answered without reasserting its counterclaims. 1 1/2 years later, Plaintiff claimed MLM had waived or abandoned its right to assert the Counterclaims. The trial court disagreed. The court of appeals did too because: 1) there is no requirement that counterclaims be repleaded in response to an amended complaint; 2) MLM prosecuted its claims, which did not prejudice Plaintiff; 3) technical defects must be disregarded if they do not affect the rights of the parties; and 4) a claim not pleaded but still tried can be decided. Evidentiary rulings were also upheld.