Tag Archives: Administrative Procedure Act

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

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

Nathan J. Dunlap v. Colorado Department of Corrections and Roger Werholtz as Interim Executive Director, 2013COA63 (April 25, 2013)

Just before Nathan Dunlap is put to death, now set for the week of August 18, 2013, the Warden will disconnect the telephone in the execution room and the witness-viewing window curtain will be opened. Department of Corrections (DOC) Regulation 300-14 sets forth the procedures for carrying out a death sentence by lethal injection, but it was not promulgated pursuant to CRS 24-4-101 to 108 – the Administrative Procedures Act (APA). Dunlap sought an order invalidating the Regulation for failure to follow the APA. The Regulation was exempted from the APA, and thus valid, because CRS 17-1-103 and 111, granting the DOC with authority to manage, supervise and control inmates, and to administer sentences imposed by the courts, exempts the DOC from the APA. A partially dissenting judge would have ordered full disclosure of the Regulation to allow courts to make a more informed decision.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0955-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8923&courtid=1

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Filed under Administrative, Government