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.
Tag Archives: Commissions or Boards
In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)
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.
Mile High Cab, Inc. v. Colorado Public Utilities Commission and SuperShuttle International Denver, Colorado Cab Company, and MKBS, LLC 2013CO26 (April 22, 2013)
Proof by a preponderance of the evidence means probable not possible. Here, a taxi service sought a Certificate of Public Convenience and Necessity from the Public Utilities Commission so it could operate in Denver. Existing taxi companies objected, claiming another taxi service would cause oversupply in the market and not lead to robust competition. An ALJ concluded there was a significant “possibility” the objectors were right. The PUC affirmed, using “possibility” and “probability” interchangeably. The Court held that “probable” expresses higher confidence than “possible,” and is closer to “preponderance.” Thus, objectors must prove, and the PUC must clearly manifest an intent to apply a preponderance standard to find that a Certificate was not required, and issuing one would actually be detrimental. The PUC did not do so; the denial of the Certificate was reversed.
Larimer County Board of Commissioners, Grand County Board of Commissioners, Board of Assessment Appeals v. Colorado Property Tax Administrator, and YMCA of the Rockies, 2013COA49 (April 11, 2013)
“Young man, young man, what do you wanna be?” – YMCA, The Village People. The YMCA is a Christian organization and sought religious and charitable use tax exemptions from property taxes. The exemption applications were eventually denied. The Colo. Const. provides for both exemptions, as does CRS 39-2-117, 39-3-106 and 108. Each are determined by examining the property’s use, not the character of the entity. Activities of religious organizations that further their religious purposes constitute religious worship, and entities can use facilities for charitable purposes without requiring participation in entity-organized activities. In each case, the Tax Board failed to examine whether the activities furthered declared religious or charitable purposes. The court of appeals reversed, remanded and ordered the Board to apply the correct legal standards for each exemption.
Northglenn Urban Renewal Authority v. Gil Reyes as Adams County Assessor and Board of County Commissioners of Adams County, 2013COA24 (February 28, 2013).
The technical task of taxing property under tax increment financing (TIF) plans is, well, technical. A TIF is used to fund the sale of municipal bonds for urban renewal. Under CRS 31-25-101 to 115, a TIF property is valued before it is included in the urban renewal plan (base value); subsequent increases in value, and the increased taxes therefrom, then finance the urban renewal authority (URA). Here, property was included in a TIF but later removed. The statute does not address how to calculate a TIF in this situation. The Assessor included the property in the base value, but not in the newly assessed value. This method, the court of appeals held, was erroneous because it created an imbalance in the URA’s TIF funding. But, the Assessor correctly measured the TIF’s 25-year termination date from the date the TIF was adopted, not after property was added. A new TIF calculation was ordered.
CTS Investments, LLC v. Garfield County Board of Equalization and Board of Assessment Appeals, 2013COA30 (March 14, 2013)
“Society doesn’t have values. People have values.” Milton Friedman. And property values are decided by people – specifically, assessors. One property (P1) could be valued less if the sale of another (P2) was considered. Assessor excluded the sale of P2, valuing P1 higher, concluding P2 was sold at a discount because the seller was compelled by economic duress, as reported in the news, and the sale was not “arms-length.” P1’s owner objected to the use of the reports and the conclusion that the P2 sale was not “arms-length.” The court of appeals held the reports, though hearsay, were admissible because a prudent person could rely on them. Sales under duress are typically excluded in valuations. The court, relying on the ALR, determined that “duress” means a seller not typically motivated, as was the circumstance with P2. Thus, the P2 sale was not arms-length and P1 was properly valued.
In the Matter of Title, Ballot Title and Submission Clause for Proposed Initiatives 2011-2012 Nos. 67, 68, 69, and 94, 95, Philip Hayes v. David Ottke and John Slota and Barbara Walker and Don Childears v. Earl Staelin and Robert Bows, 2012CO1 (January 7, 2013)
Direct democracy takes citizen initiatives directly to the voters. Colorado’s Constitution, article V section 1, provides for such initiatives. But, they must meet various standards before they are placed on the ballot, and the Title Board is authorized to decide if initiatives meet those standards. CRS 1-40-106 requires “each designated representative” (proponent) to appear at Board meetings at which the ballot issue is considered. If a proponent fails to appear, the Board lacks authority to take any action. Here, two different initiatives were brought. In each case, however, only 1 of the 2 proponents appeared at a rehearing. In this original proceeding, the Court held that both proponents must appear at each hearing. If they do not, the Board lacks authority to set titles and put matters on the ballot. Because only 1 of 2 proponents appeared, the Board lacked authority to act.
Ann Marie Damian and John M Taylor, Jr. v. Mountain Parks Electric, Inc., 2012COA217 (December 27, 2012)
“Why you wanna give me a run-around/ Is it a sure-fire way to speed things up/ When all it does is slow me down.” (Blues Traveler). In this statute of limitations case, Plaintiff brought a lawsuit under the Consumer Protection Act (CPA) that later appeared to be about unreasonable electricity rates that the Public Utilities Commission should decide. It wasn’t, so the PUC dismissed it. Back in the trial court, Defendant claimed the action was filed after the three-year statute of limitations ended. The trial court agreed, and held that the doctrine of equitable tolling did not apply, nor did the one-year extension in the CPA itself. The court of appeals affirmed. Equitable tolling does not apply if it contradicts a statute. Here, it was inconsistent with the CPA. As Plaintiffs did not show the delay was due to Defendant’s misrepresentations, the one-year extension did not apply either.
Marc Giuliani, Footprints Health and Wellness, Inc., et. al., v. Jefferson County Board of County Commissioners, 2012COA190 (November 1, 2012)
A medical marijuana dispensary/center is not a medical office or clinic, retail sales or services establishment, drug store, medical supply distributor or seller of medical equipment and services. Here, the court upheld a zoning violation notice to a dispensary located in a retail shopping center zoned for only the above purposes. Specifically, the court found that: 1) neither Amendment 20 nor the regulatory statutes barred the zoning restriction, 2) Jefferson County was immune to equitable estoppel claims, and 3) the record supported the zoning violation citation. It also found that a ban on all medical marijuana centers in unincorporated areas, issued after the center opened, mooted certain claims because zoning compliance would be impossible. The remaining constitutional challenges were not preserved for appeal and the dispensary’s challenge was dismissed in full.