Tag Archives: State Agency

Gary Justice, Kathleen Hopkins, Eugene Halaas, Jr., and Robert Laird, Jr. v. The State of Colorado, Governor Hickenlooper, Colorado PERA, Carole Wright, and Maryann Motza, 2014CO75 (Oct. 20, 2014)

A contract is a promise the law will enforce. The Contract Clauses of Colorado’s and the US’s Constitutions protect existing contracts from laws that would later impair their performance. Public employees have received retirement benefits from PERA since 1931. Cost of living adjustments (COLA) began in 1969 and have evolved ever since. In 2000, the statutory COLA rate was 3.5%. In 2010, the legislature changed it to 2%. Employees who retired between 2001 and 2010 sued the State for violating the Contracts Clause, claiming a violation of their contractual right to the 3.5% COLA at the time of their retirement. The Court ruled there was no contract right guaranteeing a particular COLA formula because 1) it has changed repeatedly over time and 2) there is no express intent that the 2000 legislature intended to bind the 2010 legislature regarding the COLA formula for pre-2010 retirees.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC906.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9546&courtid=2

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Filed under Constitutional, Contracts, Government

Walker Stapleton, Colorado State Treasurer v. Public Employees Retirement Association, 2013 COA 116 (Aug. 1 2013)

“Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies.” – Groucho Marx. Walker Stapleton, Colorado’s Treasurer and statutory trustee to the Public Employees’ Retirement Association (PERA), sued for unfettered access to members’ records. The trial court denied his request because it was not for the purpose of providing benefits to members. The Court of Appeals rejected Stapleton’s argument that the common law allows a trustee unfettered access to trust records, because CRS 24-51-207 (PERA’s standards of conduct statute) limits trustees to carrying out functions (1) only when solely in the interest of members, and (2) for the exclusive purpose of providing benefits. The court noted, however, that Stapleton may seek access in the future, as long as consistent with a fiduciary purpose.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1023-PD.pdf

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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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Oasis Legal Finance, LLC, et. al., and Funding Holding, Inc., d/b/a LawCash v. John W. Suthers, as Attorney General; and Laura E. Udis, as the Administrator, Uniform Consumer Credit Code, 2013COA82 (May 23, 2013)

“You keep using that word. I do not think it means what you think it means.” – Inigo Montoya, Princess Bride. Here, Plaintiffs pay tort plaintiffs while their cases are pending. Repayment depends on the net amount recovered (if any); and if recovery exceeds net proceeds, the debt is increased based on time. The Administrator of the Colorado Uniform Consumer Credit Code, CRS 5-1-101 to 13-103 (UCCC), found the agreements were unlawful “loans.” Plaintiffs disagreed and sued. The court of appeals, like the trial court, found for Administrator. Under the UCCC, a “loan” is a debt created by the lender’s payment, or agreement to pay, money to a consumer. A “debt” is either fixed (a specific sum due) or contingent (not presently fixed but may become fixed in the future). A debt is not, however, an unconditional promise to pay. Here, Plaintiffs’ payments were contingent debts and thus loans.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA1130-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8958&courtid=1

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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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Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

The government wants Plaintiff’s patient data. Plaintiff is a private, for-profit facility that provides treatment for patients with substance abuse and mental health disorders. Plaintiff claimed patient data was protected by CRS 13-90-107(1)(g), creating the psychotherapist-patient privilege, and 42 U.S.C. § 290dd-2, Federal Confidentiality Statutes (FCS). On review, the court of appeals agreed with the trial court, holding the data could be disclosed. First, CRS 13-90-107 is limited to the litigation context and did not apply. Second, under the FCS, patient data is disclosable to an agency with “direct administrative control,” which the state was not, or under an “audit and evaluation” exception, which did apply. Thus, the data could be required to be disclosed once the state, but only once the state implements a required data retention and destruction policy.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2586-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8885&courtid=1

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Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

Pop quiz: are medical records “confidential,” “privileged,” or both? Answer: yes. Here, Defendant, a state agency, required licensed drug and alcohol treatment programs to submit forms with confidential patient information. In the trial court, Plaintiff claimed the forms violated state and federal statutes. The court of appeals first held the doctor-patient “privilege” under CRS 13-90-107 only protects testimonial witnesses. Federal law protects the “confidentiality” of medical records (42 U.S.C. § 290dd-2; 42 C.F.R. §§ 2.1, 2.2), except for entities with “direct administrative control” over a program. The court held the agency lacked that control, but the forms could be required for an audit or evaluation if there were a data retention and destruction policy. Here, there was no evidence of a data policy; until there was, Plaintiff was not required to submit the forms.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2586-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8885&courtid=1

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Raptor Education Foundation, Inc., v. Colorado Department of Revenue, Division of Motor Vehicles, 2012COA219 (December 27, 2012)

The individual freedom to contract, enshrined in the US and Colorado Constitutions and known as the Contract Clause, can add another case to its storied history – specialty license plates. In 2000, the Raptor Education Foundation contracted with the Department of Revenue for the exclusive right to buy a specialty plate. In 2002, the Department was court-ordered to sell the plates only to members of the REF. In 2009, the Legislature amended the law (CRS 42-3-208) to allow non-REF members to buy the plates. The REF sued. The court of appeals, after finding that the constitutional challenge could be addressed even though it was not raised in a pleading, struck down the legislation as unconstitutional. The law violated the Contracts Clause because it was not directed at a general social problem and was an unforeseeable substantial impairment to the existing contractual relationship.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2446-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8787&courtid=1

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Filed under Appellate Review Challenged, Constitutional, Contracts, 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.

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Filed under Administrative, Appellate Review Challenged, Government, Proceedure