Tag Archives: Separation of Powers

Cynthia H. Coffman, as Attorney General, and Julie Ann Meade, as the Administrator of the Uniform Debt Management Services Act, v. Lawrence W. Williamson, Jr., Esq.; Donald Drew Moore, Esq.; and Morgan Drexen, Inc., a California corporation, and Walter Joseph Ledda, 2015CO35 (May 26, 2015).

“It isn’t what we say or think that defines us, but what we do.” – Jane Austen. Some companies offer debt-management services to debtors. Plaintiff is one of them. They are regulated by CRS 12-14.5-202. (the DMSA). Attorneys providing such services are exempt from regulation. Plaintiff (consisting entirely of nonlawyers) hired “local counsel” and sought “legal services exemption.” The Court, interpreting the DMSA with Colo.RPC 5.3, held that nonlawyer assistants may be exempt if they work for an attorney in substance, not just in name, and under the attorney’s supervision. Here, Plaintiff’s attorneys, some out-of-state , did not actually provide meaningful instruction or supervision. Although the Court, through CRCP 205.1, not the Legislature, regulates attorneys, the DMSA did violate the Separation of Powers doctrine. Thus, Plaintiff was subject to regulation.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA249.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9789&courtid=2

Advertisements

Leave a comment

Filed under Attorney Regulation, Constitutional

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

1 Comment

Filed under Administrative, Constitutional

Alva Hickerson v. Thomas Vessels, 2014CO2 (January 13, 2014)

“Don’t wait for the last judgment – it takes place every day.” Albert Camus. In this case, four issues are at play: 1) the equitable doctrine of laches (prevents a party from waiting too long to bring a claim); 2) the statute of limitations for collecting a debt (six years); 3) the doctrine of partial payment (restarts the six years after a partial payment); and 4) the separation of powers doctrine (prevents application of equitable doctrines to expressly conflicting statutes). The court of appeals held that laches cannot shorten a limitations period because the separation of powers doctrine prevented it. The Court reversed because laches does not conflict with the statute of limitations, and the partial payment doctrine does not preclude laches, even though it effectively lengthens the time within which a claim can be brought. The Court remanded for review of the laches claim.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC198.pdf

Leave a comment

Filed under Constitutional, Contracts

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

Leave a comment

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

Taxpayers for Public Education and Cindra Barnard, et. al. v. Douglas County School District; Douglas County Board of Education; Colorado State Board of Education; and Colorado Department of Education, and Florence and Derrick Doyel, et. al. Intervenors, 2012COA20 (February 28, 2013)

Money merely represents value; but it has come to symbolize so much more. Here, the Douglas County Public School District created a voucher system that gives taxpayer money to private and/or religious schools. The trial court held it was unconstitutional. The court of appeals reversed based on 4 conclusions: 1) courts may not inquire into the extent of religious instruction, 2) religious institutions are not directly benefited, 3) parents directed the funds, and 4) the system gave parents neutral funding choices that maintained the free educational system. The court also held Plaintiffs lacked standing to enforce a statute. It avoided deciding whether Colorado’s constitutional religion provisions were coextensive with the First Amendment. The dissent concluded the system was a pipeline of public money to religious schools, thus violating Colorado’s Constitution.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1856-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8846&courtid=1

CERTIORARI GRANTED

2 Comments

Filed under Appellate Review Challenged, Constitutional, Government

Curtis Vagneur and Jeffrey Evans v. City of Aspen et. al., 2013CO13 (February 11, 2013)

“If angels were to govern men, neither external nor internal controls on government would be necessary.” Federalist Papers #51. This seemingly modest case raises complicated questions about the separation of powers. At issue were two citizen-initiated proposed ordinances in Aspen and whether they were “legislative” or “executive.” Only legislative acts are proper subjects of voter initiatives. Administrative acts, which are executive in nature, are not permissible initiatives. Legislative acts establish generally applicable rules that weigh broad policy considerations. Executive acts are case-specific, discretionary and typically require specialized knowledge. The Court held, over two dissents, that the initiatives here were impermissible because they were specific proposals on the location, design and construction of a road, and thus, administrative.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2009/09SC1022.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8826&courtid=2

Leave a comment

Filed under Administrative, Constitutional, Government

Jamie Webb, Jeffrey Hermanson, and Michaleen Jeronimus v. City of Black Hawk, 2013CO9 (February 4, 2013)

The history of gold, bicycles and casinos meet at the confluence of Gregory Gulch and the North Fork of Clear Creek. Black Hawk banned bicycles blocking riders from passing through. If a Home Rule ordinance is not strictly a matter of local concern, and conflicts with state law, it is unconstitutional. Here, the Court held the matter was a mix of state and local concern because the ban had an extraterritorial “ripple effect” on non-residents, such as blocking access to Central City. The ban failed the conflict test because bicycling is a protected mode of transportation within Colorado, and state law limits bans unless an alternative route within 450 feet of the banned route is provided for bicyclists. There was no alternative route as required by CRS 42-4-109. Although CRS 42-4-111 permits local regulation of bicycles, Black Hawk’s ban was struck down for conflicting with state law.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC536.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8823&courtid=2

Leave a comment

Filed under Constitutional, Government

SDI, Inc. v. Pivotal Parker Commercial, LLC, 2012COA168 (October 11, 2012)

Real estate development companies, through the individuals that control them, can run the special tax districts they create. Colorado’s Special District Act, meant to encourage development of open land, permits developers to control such districts and to pledge taxes and fees collected by the district to themselves. But, no government can delegate legislative functions to a private party such as a developer. Here, a special district attempted to assign the fees it collected to a developer. The developer then charged landowners interest on the fees. The court of appeals held that: 1) the district did not have the statutory authority to “assign” development fees, 2) developer could not charge interest on development fees, and 3) the assignment did not give developer a lien. Rather, districts can only “pledge” payments to developers, which must be set and collected by the district.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0134-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8693&courtid=1

Leave a comment

Filed under Contracts, Corporations, Government

Colorado Medical Society and Colorado Society of Anesthesiologists v. John Hickenlooper, Governor of Colorado, and Colorado Association of Nurse Anesthetists; Colorado Nurses Association; and Colorado Hospital Association, 2012COA121 (July 19, 2012)

“The best doctor is the one you run to and can’t find.” Denis Diderot. In this case, anesthesiologists challenged a decision by the Governor to opt out of a federal regulation that requires certified registered nurse anesthetists (CRNAs) administering anesthesia to be supervised by a physician. The court of appeals first held the doctors had standing to bring their claims based on harm to their reputations and value of their licenses, as well as third-party standing to protect their patients. The political question doctrine didn’t bar review either. The court then held that Colorado law permits CRNAs to administer anesthesia without supervision by a physician. It reasoned that under CRS 38-12-103 and 12-38-111.5, CRNAs who administer anesthesia are conducting independent nursing functions and not a “delegated medical function.” The Governor’s opt-out decision was upheld.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1005-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8601&courtid=1

UPDATE: The Colorado Supreme Court granted certiorari in this case on October 7, 2013.

Leave a comment

Filed under Administrative, Appellate Review Challenged, Government, Proceedure