Richard Lance Gabriel begins his term as Justice of the Colorado Supreme Court

The Colorado Supreme Court’s 2015-2016 term will start with a new Justice: Court of Appeals judge Richard Gabriel.  He will start his term on September 1, 2015 following the retirement of long-time Justice Gregory Hobbs.

Attached is the PRESS RELEASE related to his appointment.

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Taxpayers for Public Education, et. al. v. Douglas County School District, 2015CO50 (June 29, 2015)

“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.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC233.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9843&courtid=2

Obergefell et. al. v. Hodges, Ohio Dep’t Health, 135 S.Ct. 1039 (June 26, 2015) Part II: Dissents

The CLR does not normally post summaries of US Supreme Court decisions. In this case, there are immediate implications for Family Law practitioners in Colorado, as well as other civil litigators pursuing or defending claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Therefore, the CLR will issue 2 posts related to this decision. Part I is a summary of the majority opinion and Part II is a summary of the dissenting opinions.

“The fundamental right to marry does not include a right to make a State change its definition of marriage.” Roberts, C.J. The 4 dissenting justices raised various arguments against extending marriage to same-sex couples by Court decree including (in no particular order): 1) the decision should rest with the people, resolved through elected representatives, not 5 lawyers; 2) courts do not substitute their judgment for that of the people; 3) limiting marriage is not an unconstitutional act by a State; 4) liberty is freedom from government action not a claim to government benefits; 5) dignity is neither granted nor taken away by government; and 6) children are best served by a marriage between a man and woman. A shared theme is that by deciding the scope of a Constitutional right, the Court has taken a power it should not claim, has created more division, and ended democratic debate.

The following are all the cases on Writs of Certiorari To The United States Court Of Appeals For The Sixth Circuit decided in this decision:

14–556, James Obergefell, et. al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et. al.;

14–562, Valeria Tanco, et. al., Petitioners v. Bill Haslam, Governor of Tennessee, et. al.;

14–571, April DeBoer, et. al., Petitioners v. Rick Snyder, Governor of Michigan, et. al.;

14–574, Gregory Bourke, et. al., Petitioners v. Steve Beshear, Governor of Kentucky.

Motions to Stay pending Appeal?

C.A.R. 8 addresses motions to stay. Earlier this year, the Colorado Supreme Court amended Rule 8, as well as Rule 27 related to Motions. Although the changes are not particularly substantive, the language has been cleaned up.

Click to see the amendments to CAR 8 and 27 , which went into effect on January 7, 2015.

Brandon Coats v. Dish Network LLC, 2015CO44 (June 15, 2015)

“The federal government shouldn’t be swooping into Colorado to decide how we regulate marijuana any more than it should be swooping in to Louisiana to tell them how they should regulate fried crawfish.” – Rep. Jared Polis. Coats is a quadriplegic confined to a wheelchair. He got a medical marijuana license to treat painful muscle spasms caused by his quadriplegia. Coats consumes medical marijuana at home in accordance with Colorado law. After testing positive for THC, Defendant fired him under a zero tolerance drug policy. Coats sued because generally, an employer cannot fire “any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” CRS 24-34-402.5(1). The Court upheld both lower court decisions finding that “lawful” is not limited to state law. Because pot is illegal under Federal law, its use is not “lawful.”

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC394.pdf

Christopher Boyer and Patrick Singson v. Health Grades, Inc., 2015CO40 (June 1, 2015)

Can you sue someone for suing you without violating the First Amendment’s right to petition the government? Yes, in purely private disputes. Imagine you are a former employee and you do something your former employer does not like, as happened to defendants here. Your former employer (plaintiff) sues you. You then want to sue your former employer for suing you claiming abuse of process or tortious interference. Your former employer defends by claiming that its right to sue (petition using the courts) is protected by the First Amendment. Your former employer would be wrong in Colorado. The Court held that First Amendment protections from suits related to matters of public interest (as provided in the POME case) do not extend to purely private disputes. The Court came to the same conclusion in the arbitration context in General Steel, which it extended to this case.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC131.pdf

 

Allstate Insurance v. Medical Lien Managment, Inc., 2015CO32 (May 26, 2015)

The future belongs to those who prepare for it today. – Malcolm X. Medical debt financing companies require a plaintiff to assign the proceeds of their potential future settlement funds up to the amount of medical expenses financed and then demand that the tortfeasor’s insurance company pay them directly. Here, notwithstanding such a demand, Allstate paid the plaintiff, not MLM, who sued. The Court noted an assignment is a transfer of one’s right to performance to another. A conditional right to funds is assignable. But a right to a future right to funds is not, unless it is to all or a determinable portion of the funds. A demand for specific performance of payment of future funds may be enforceable. But an assignment cannot increase an obligor’s burden to perform. Here, the assignment was ill-defined and not independently determinable and thus not an assignment at the time it was made.

 https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC131.pdf

**Disclaimer: the author represents a company engaged in business similar to MLM.

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

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.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC576.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9738&courtid=2

Barbara Jordan v. Panorama Orthopedics & Spine Center, PC., 2015CO24 (April 13, 2015)

♪This land is your land, it’s not my land, I’m not a landowner, so you can’t sue me… Plaintiff tripped and fell on common area sidewalk outside a medical campus. She sued the main tenant. Under the Premises Liability Act (PLA), only “landowners” could be liable for injuries on their land. There are two kinds of landowners: those in possession of the land, and those who are legally responsible for conditions on the land. This case addressed the second category and limited its scope. Here, under its lease, the defendant could not exclude anyone from occupying the land, was not responsible for maintenance or the condition of the sidewalk, and was not conducting any activities on the sidewalk; it also did not assume a duty to repair the sidewalk or create the condition that caused the injuries. Under these facts, the Court held the commercial tenant was not a landowner.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC545.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9734&courtid=2