Colorado Lawyer: August/September 2020

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TABLE OF CONTENTS August/September | Vol. 49, No. 8 | www.cobar.org

COLORADO LAWYER, THE OFFICIAL PUBLICATION OF THE COLORADO BAR ASSOCIATION, SERVES AS AN INFORMATIONAL AND EDUCATIONAL RESOURCE TO IMPROVE THE PRACTICE OF LAW.

EDITORIAL OFFICES

1290 Broadway, Ste. 1700 Denver, CO 80203 www.cobar.org/tcl Susie Klein, Managing Editor (303) 907-1828, sklein@cobar.org Jodi Jennings, Legal Editor (303) 824-5326, jjennings@cobar.org Kate Schuster, Graphic Designer (303) 824-5312, kschuster@cobar.org ADVERTISING

Survey of COVID-19 Insurance Issues

Jessica Espinoza-Murillo advertising@cobar.org MEMBERSHIP SERVICES/ ADDRESS CHANGES

Teri Roberts, Membership Services Coordinator (303) 824-5376, troberts@cobar.org COLORADO LAWYER BOARD

Chris Levkulich, Chair Denver—(303) 861-4154 clevkulich@lektax.com Kathryn Starnella, Immediate Past Chair Denver—(303) 813-6539 kstarnella@warllc.com Joseph G. Michaels, Chair-Elect Denver—(720) 508-6460 joseph.michaels@coag.gov

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56

Lindsay J. Miller, Secretary Castle Rock—(303) 688-3045 miller@ffcolorado.com

FEATURES FAMILY LAW

Assessing Rule 16.2

15 Years and Counting—Part 2

by David M. Johnson

PAGE 24

Damian J. Arguello Broomfield—(303) 427-2454 damian@cilc.law

PROFESSIONAL CONDUCT AND LEGAL ETHICS

Michael A. Blasie Denver—(303) 244-1994 mblasie@gmail.com

Prohibited by Rule

Sexual Harassment as Attorney Misconduct

Keith M. Olivia Boulder—(720) 310-7760 kolivia@onkuretherapeutics.com

by Joseph G. Michaels

LABOR AND EMPLOYMENT LAW

Calculating Economic Losses in Tenth Circuit Employment Termination Cases

PAGE 39

Joel M. Pratt Colorado Springs—(719) 473-0884 joel@lisamdailey.com

REAL ESTATE LAW

Charles L. Baum II

An Overview of Colorado Easement Law

PAGE 30

From Creation to Termination

Jennifer Seidman Englewood—(303) 792-5595 jseidman@burgsimpson.com Patrick R. Thiessen Arvada—(303) 420-1234 prthiessen@friearndt.com

by April D. Hendricks

LEGISLATIVE MATTERS

The CBA’s 2020 Legislative Session in Review

by Andrew White

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Jami Vigil Colorado Springs—(719) 452-5400 jami.vigil@judicial.state.co.us

TORT AND INSURANCE LAW

Juan G. Villaseñor Fort Collins—(970) 672-7498 juan.villasenor@judicial.state.co.us

Survey of COVID-19 Insurance Issues Coverage for Business Income Interruptions—Part 1

Amy Larson CBA Executive Director and CEO

by Thomas W. Henderson, Nick Fogel, and Joseph F. “Trip” Nistico III

PAGE 56 ON THE COVER: Jeffrey Weeks took this photo of his wife paddling the couple’s inflatable kayak on a beautiful

day near Lake Irwin. Weeks is a partner at Weeks & Luchetta LLP in Colorado Springs, where his practice focuses on commercial litigation and personal injury.

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WELCOME 4

President’s Message

Lawyers as Leaders: Leading through Unusual Times

by Jessica Brown

8

Just Joined

Uncovering Hidden Government Documents

by Andrea L. Hamilton

14

Mentoring Matters

Mentoring through Crisis: Answering the Call with Intention

by J. Ryann Peyton

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Technology in the Law Practice

The Remote Courtroom: Tips for Effective Virtual Advocacy

by Eric Johnson and Wadi Muhaisen

AROUND THE BAR 66 Bar

News

Court Business

Colorado Supreme Court Rules Committees

80 Office

of the Presiding Disciplinary Judge

Executive Council

Disciplinary Case Summaries 82

Legal Research Corner

78

Welcome New Members

DEPARTMENTS 10

FROM THE COURTS

OFFICERS

US

Court of Appeals for the Tenth Circuit

Jessica Brown President Joi Kush President-Elect

Summaries of Selected Opinions 88 Colorado

Court of Appeals

98 Colorado

Supreme Court

Kathleen Hearn Croshal Immediate Past President

Summaries of Published Opinions

Ryann Peyton Vice President First Region

Summaries of Published Opinions

Adam Hepp Vice President Second Region

ALSO IN THIS ISSUE 106 Attention

Photographers

108 Membership 110

Judson Hite Senior Vice President Third Region

Perks

Writing for Colorado Lawyer

Kyle Aber Vice President Fourth Region

UNDER OATH 112

Keith Vance Vice President Fifth Region

Member Spotlight

Leslie German Vice President Sixth Region

News From the CBA, Local Bars, and More

by Jessica Espinoza-Murillo

68 Bar

Leslee Balten Vice President Seventh Region

News Highlight

The Many Hats of CBA YLD Chair Spencer Rubin

by Haley Hemen

72

Lawyers’ Announcements

COUNCIL MEMBERS

Kevin McReynolds DBA President Spencer Rubin CBA YLD Chair

76 In Memoriam

Zaki Robbins Diversity Bar Representative Edwin Felter Section Representative Robin Rossenfeld Section Representative Bonnie Schriner Section Representative Kevin Cheney At Large Member Amanda Hopkins At Large Member Ian McCargar At Large Member ©2020 Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Colorado Lawyer (USPS 666-270) (ISSN 0363-7867) is published 11 times per year by the Colorado Bar Association, 1290 Broadway, Ste. 1700, Denver, CO 80203. Periodicals postage paid at Denver, Colorado. Postmaster, send address changes to: CBA Membership Services, 1290 Broadway, Ste. 1700, Denver, CO 80203.

Jon Olafson At Large Member

Permission to print and make limited copies for personal use or within Colorado Bar Association (CBA) members’ law firms of material printed in Colorado Lawyer (CL) is hereby granted, provided that the copyright notice appear in all copies and that the material is used only for informational, educational, and noncommercial purposes. Without the express written permission of the CBA, readers are prohibited from making copies or reproductions of any kind for distribution other than for personal use, or within CBA members’ law firms, of material contained in this publication. Contact the editorial office to acquire the appropriate form. The information in this publication is intended for general guidance and is not meant to be a substitute for professional legal advice. The CBA accepts no responsibility for loss occasioned to any person acting or refraining from action as a result of using any material in this publication. Readers may wish to ask the advice of a lawyer. The CL logo is unavailable for use by any individual or entity other than the CBA. The price of an annual subscription to members of the CBA ($50) is included in their dues as part of their membership and cannot be billed separately.

The cost of CL is $150 (annual subscription) or $15 (per issue) for nonlawyers, nonresident lawyers who are not licensed in Colorado, and for-profit organizations (including law firms and law firm libraries); and $50 (annual subscription) or $5 (per issue) for nonprofit organizations and libraries, plus tax and postage if mailed. Changes of address must reach the CBA Membership Services Department by the fifteenth day of the month prior to publication. Appearance of advertisements in CL does not constitute an endorsement or recommendation by CL or the CBA of goods and services offered. CL and the CBA do not independently investigate, evaluate, or authenticate advertiser claims. Articles and advertisements appearing in CL do not necessarily reflect the official position of the CBA; their publication does not constitute an endorsement of views that may be expressed or products or services advertised. Accuracy of citations in articles is the sole responsibility of the authors. For writing guidelines or to submit an article, contact a member of the editorial staff.

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Mary Jo Gross Treasurer Amy Larson CBA Executive Director and CEO Dan Sweetser Deputy Executive Director and COO

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WELCOME | CBA PRESIDENT’S MESSAGE

Lawyers as Leaders Leading through Unusual Times

BY J E S SICA BROW N

W

hen I was appointed CBA president, I had never heard the term community spread.

(If I had, I would have thought it sounded like a fun picnic and a good idea for a local bar visit!) I had never heard the terms N95 respirator, social distancing, or viral load, either. What different times we find ourselves in. The pandemic has created a host of complex challenges for our members, law students, small firms and businesses, and the legal community at large.

I also had never heard the names George Floyd, Breonna Taylor, and Ahmaud Arbery. Their senseless deaths occurred even after I started writing this President’s Message. Sara Scott, CEO of the Center for Legal Inclusiveness (CLI), refers to the violence that has led to these and

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other atrocities against Black men and women as a “second pandemic,” explaining, “both are insidious, both are silent until deadly, both are unruly, both are unhinged, both are unapologetic, both are widespread, [and] both have affected a high percentage of the population.”1 Leadership Development: My Pre-Pandemic Focus Before all of this, when I was (blissfully, naively) planning my year as CBA president, I talked with my friend and “leadership mentor” Attorney General Phil Weiser about possible themes. He suggested Lawyers as Leaders, and I immediately embraced it. Every lawyer can be a leader, and leadership development is something we cultivate at the bar. We have formal leadership training for a class of 20 rising stars every year, through the CBA’s leadership training program, COBALT. Also annually, the CBA president appoints a significant number of lawyers to lead by participating on committees, task forces, and commissions focused on making improvements in such areas as access to justice, legislative policy, continuing legal education, amicus participation, and diversity, equity, and inclusion.

In addition, as CBA Executive Director Amy Larson noted, “Our events are specifically geared

toward the brightest legal minds from all fields of practice in Colorado, to provide engagement that is critical to leadership development.” Our vibrant Young Lawyers Division, for example, provides and promotes “career growth, peer networking, and dynamic programming with leadership throughout the legal community,” Amy explained. Moreover, there are 30 practice-oriented sections within the CBA that provide lawyers with opportunities to develop relationships, express ideas, study specific issues, and nurture leadership and talent. Each section is led by lawyers who receive tailored leadership support through the CBA’s Section Summit and Best Practices Playbook.

The CBA also recognizes leading lawyers annually with its prestigious Award of Merit and Outstanding Young Lawyer of the Year Award. It provides lawyers opportunities to be heard and to promote their expertise by presenting CLEs and publishing articles in Colorado Lawyer.

And the CBA gives lawyers opportunities to develop lawyering skills while simultaneously enhancing access to justice, such as through the Federal Pro Se Clinic, the CBA Appellate Pro Bono Program, and soon the Federal Limited Appearance Program (FLAP), which the YLD is developing in conjunction with Magistrate Judge Kato Crews.

Why I’m Staying the Course Before the two pandemics, I relished the idea of promoting these opportunities and the notion that being a CBA member is an investment in leadership development. I also looked forward to exploring additional ways for the CBA to both help lawyers to develop their leadership potential and to cultivate the next generation of leaders.

Some ideas included developing and promoting a series of leadership programs, to be held and broadcast throughout the state; publishing stories of lawyers serving as leaders and positive change agents in our various communities; and encouraging lawyers and law students to seek out-of-the-box employment opportunities, to better serve low- and middle-income clients, including in Greater Colorado.

When COVID-19 changed life as we know it, I had to consider whether the Lawyers as Leaders theme still made sense. I concluded

The importance of good leadership has never been more apparent.

So all of the great work the CBA is doing and can do to prepare lawyers to lead is essential, and the time is right for lawyers who can to avail themselves of these leadership development opportunities. that it now may be more relevant than ever. Our communities need lawyers to step up and serve as leaders in the wake of the two pandemics.

Individuals and businesses are struggling to stay afloat, and lawyers can help. Law students need opportunities to develop personal relationships and their careers, and lawyers can mentor them.

Black men and women, and thus all of us, need criminal and social justice reform, and lawyers can help effect these changes. The importance of good leadership has never been more apparent.

So all of the great work the CBA is doing and can do to prepare lawyers to lead is essential, and the time is right for lawyers who can to avail themselves of these leadership development opportunities.

It’s also the right time for the CBA to take a leadership role by examining how these crises may impact the bar, its members, our legal community, and the profession longer term. As my other “leadership mentor,” CBA Past President Patricia Jarzobski, commented, “Our members and our profession deserve our

best thinking right now. The disruption from the racial injustice pandemic and the global pandemic is the perfect time to rethink how we govern and lead our bar associations into the next generation of service, post-pandemic.” As a next step, Patricia urged, we should be “talking about taking strategic risks” rather than merely “fulfilling our fiduciary duties,” and reflecting on the possibilities presented by our “new normal.”

Envisioning a Brighter Future CBA’s Modern Law Practice Initiative (MLPI) has been reflecting on those possibilities. In June, JP Box and Erika Holmes invited Supreme Court Justice Monica Márquez, University of Denver’s (DU) Assistant Dean for Career Development Eric Bono, CLI CEO Sara Scott, and me to participate in the MLPI’s new Modern Law Revolution Podcast, where we brainstormed our post-pandemic vision for the legal community.2 Of course, none of us has a crystal ball, but in talking with that group and other community leaders—including AG Phil Weiser, CAMP Director Ryann Peyton, DU law student activist Adriana Levandowski, law firm practice group leader Shannon Stevenson, and former DBA President and in-house counsel Maureen (Mo) Watson—several themes have emerged that the CBA must incorporate into its thinking and planning for the future.3

Social Responsibility The first is social responsibility. As AG Weiser noted in response to COVID-19, “We’re reminded as a society of the importance of resilience”—but the most vulnerable segments of our population “lack that ability to be resilient . . . and we have a social responsibility to them.”

This responsibility applies as well to “small businesses fighting for their lives,” he observed.

“We have to figure out how we can help them, such as by negotiating grace for rent. A lot of small businesses are set up to fail if they don’t get the help they need.” Weiser pointed out that we need to be “mindful of people who are hurting and who are not as protected. There are lots of ways lawyers can be helpful.”

Of course, many lawyers also need help, as do law students who have lost opportunities as a result of the public health crisis. As DU law

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WELCOME | CBA PRESIDENT’S MESSAGE

student Adriana Levandowski reported, “When COVID-19 first hit Colorado in mid-March, I was in the advanced stages of interviewing for summer internship programs. At that point, COVID-19 cost me an exciting work experience, a crucial résumé builder, and a career stepping-stone.” Adriana noted, “Many law students faced similar circumstances, as firms and businesses rescinded offers, froze hiring, and canceled summer associate programs. At the start of the pandemic, firms didn’t have the capacity, time, or resources to train new attorneys remotely.” The law schools immediately stepped in to help, Adriana observed. And she also found a silver lining: “For all the challenges COVID-19 brings with it, in the end it may just be preparing law students to effectively manage the curveballs and obstacles faced in practice.”

DU Assistant Dean Eric Bono also sees opportunity in these challenging circumstances—specifically, an opportunity to identify for our law students “different career paths where they can make a difference serving people who are currently not being well served by the legal profession,” particularly clients with low and moderate incomes. He noted that we can and should do more to expose students to organizations that “strive to serve clients in a different way,” such as on a flat-fee or limited-scope basis, “so we can provide the legal services that are desperately needed.”

And as CAMP Director Ryann Peyton pointed out , “The CBA is well positioned to assist lawyers as they are navigating the choppy waters of recession to assist them in not losing sight of their professional goals and finding work that aligns with their skills, values, and passions.

Creating or improving mentoring programs, providing educational opportunities to develop practice skills, and increasing resources and support of solo lawyers will be critical to meeting the needs of this demographic over the coming 18 to 24 months.”

Can the CBA look ahead to create these longer-term opportunities for new and young lawyers? Can it simultaneously support more experienced members as they and their clients face challenges as a result of economic turmoil and disruption created by COVID-19? Is the CBA likewise well positioned to help lawyers come

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together to address our collective anguish over the tragic acts of racial injustice that triggered protests and riots across the country in June?

Will lawyers be there, not just in two months but in two years, since these issues were not created and are not going to be solved easily or quickly? Can the CBA help drive these initiatives to help and to effect change, to finally make good on the promise of “equal justice for all”?

As a result of the two pandemics, will the CBA and its members embrace social responsibility in new ways?

When thinking about the future of our legal profession, another obvious opportunity is greater flexibility and more ways to connect than we ever envisioned before COVID-19.

Workplace Flexibility When thinking about the future of our legal profession, another obvious opportunity is greater flexibility and more ways to connect than we ever envisioned before COVID-19.

With virtually all legal employers (including the CBA) moving their operations from the workplace beginning in March 2020, we have seen how feasible it is to work successfully outside the physical office environment and traditional work hours. We also have seen greater participation levels in programs and meetings, as Zoom and similar platforms are permitting lawyers in Greater Colorado to overcome the time and distance barriers that made attending many events difficult before our improved nimbleness with technology. As

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CAMP Director Ryann Peyton said in May, “This virus has done more to change the profession in eight weeks than has been accomplished in 20 years of revolutionary attempts. Lawyers and staff are not only telecommuting but managing entire law firms and caseloads 100% remotely.

Our living rooms have become our courtrooms, boardrooms, and bar associations.”

And it works. Shannon Stevenson, chair of Davis Graham & Stubbs’ Trial Group, argued to the Ninth Circuit remotely in April, and her partner was involved in the first remote oral argument before the Colorado Supreme Court.

“Depositions and mediations are happening remotely” as well, Shannon noted. We may prefer to do these things in person, she observed, but wondered how both lawyers and clients will weigh the costs and benefits of in-person events in the future. Similarly, former DBA President Mo Watson noted, “It’s amazing to see how in the past couple months, a lot of companies that had reservations or bias about remote work have made it work. Most of us are still doing our jobs pretty successfully—not in the same way, but a lot of those adaptations we thought would be so difficult are working.”

AG Weiser believes the “flexible work initiative is critical and is being catalyzed by this pandemic.” At Colorado’s largest legal department, the AG’s office, Weiser says this flexible work initiative is leading to a “culture shift”—for example, if a team is holding a meeting and one member can’t attend in person, rather than conduct the meeting live, they will do it via Microsoft Teams.

What this ability to work virtually could mean for commercial real estate and support-staff requirements is one question. But on a more hopeful note, what might it mean for the CBA’s long-term ability to engage members in Greater Colorado in new and more significant ways? And what might it mean for the future of women in the profession, who may have the most to gain from greater workplace flexibility? Diversity experts have been pushing legal employers for years to allow more flexible work options in the interest of retaining working mothers in particular, in light of demands on their schedules during traditional work hours. Will greater flexibility in terms of where and how we work result in

more women staying longer term and reaching leadership levels within their organizations?

Will millennials, who also have been pushing employers to allow flexible or remote work, achieve greater levels of happiness and satisfaction, resulting in lower levels of attrition? And if lawyers are more remote from one another at work, will the CBA have an even more important role to play in bringing lawyers together from across the state to create a sense of community, provide mentorship to newer lawyers, and offer substantive training and education?

Humanization and Authenticity A third post-pandemic opportunity for our profession is that we may experience increased humanity and authenticity, potentially leading to greater well-being, civility, and professionalism.

Ryann Peyton observed that, with regard to remote-work flexibility, “COVID-19 served merely as the accelerant to a modernization that was already underway within the profession.”

Ryann believes that the true impact of this crisis on our profession is what she calls “the great humanization”: COVID-19 did for the profession what no bar association, commission, pilot program, or special interest group has been able to accomplish—it humanized every single one of us. Literally overnight, we could no longer pretend as though our coworkers, colleagues, and employees weren’t also spouses, parents, sisters, brothers, daughters, and sons. In an instant, many of us became teachers, caretakers, and homemakers in ways we’ve never experienced before. And as we fumbled through the first days and weeks of trying to balance it all with busy law practices, our learning curve played out in real time Zoom calls on the computer screens of our colleagues.

One of my early hopes with this “humanization” was that lawyers would no longer feel they needed to hide or downplay the fact that they had lives outside of work. They might not worry so much if they were taking work calls from home, or if their crying toddlers or barking dogs interrupted those calls. Clients and colleagues would understand, and all of us could be our more authentic selves.

That seems to have occurred and, beyond that, lawyers started interacting with one another in new ways. Ryann and I both experienced in the spring that many of our meetings began “with an organic and collective ‘check in’ on how everyone is feeling physically and emotionally.

Lawyers are readily offering support to their colleagues on parenting and caretaking, and the overall civility and professionalism with which we interact with one another has improved steadily. When we weather adversity collectively as a profession, the standards by which we treat one another will naturally evolve.” As Ryann concluded: “There is more opportunity for

One of my early hopes with this “humanization” was that lawyers would no longer feel they needed to hide or downplay the fact that they had lives outside of work. grace, kindness, and civility in our profession than there has ever been before.”

The CBA has long had a professionalism committee, the Professionalism Coordinating Council. Might the Council be able to develop creative programming and educational tools to leverage this new-found humanization, to help ensure that it lives on well after the pandemic? And can the CBA more broadly provide opportunities to come together for meetings, networking events, mentoring, pro bono matters, service projects, and programs, with a focus on the well-being components that result from authentic connection? Can the CBA help deepen the connections lawyers are, somewhat counterintuitively, developing as they

work remotely, when we’re together in person again? And can we continue to use technology in ways that allow members across the state to feel just as connected and engaged as those for whom it is convenient to be together in person?

Conclusion As Justice Márquez noted during our June podcast for MLPI, a vibrant legal community is “one in which everyone feels welcome, engaged, and supported.” There are “plenty of pockets of that,” Justice Márquez observed, with “so many wonderful things” happening with the CBA, diversity and specialty bars, CAMP, Inns of Court, and numerous other organizations that offer opportunities for lawyers to engage and connect. But “that connection is not uniform across our state,” she correctly pointed out.

Nor is it uniform across all groups of potential participants, such as racial and ethnic minorities.

For example, “our bench does not look like the communities that we serve. That disconnect has added to the perception that justice is not in fact equal for all,” Justice Márquez said. And “that lack of faith in the justice system literally undermines the rule of law itself.”

Past President John Vaught has encouraged me to write a follow up to his March 2019 President’s Message on the rule of law.4 There are good reasons for me to consider doing just that.

But in the meantime, I commend to you his Message and hope you will consider how you can step up to lead within our communities in any of the myriad ways lawyers are needed to lead—during these unusual times and into a brighter future.

NOTE S

1. CLI Newsletter, “Two Pandemics” (June 2020).

2. MLPI, “Vision of Community,” Modern Law Revolution Podcast, https:// coloradobarassociation.podbean.com. This episode is part of a four-part series on “Creating a Vision.”

3. These conversations took place in late May and early June 2020 during a series of phone calls and emails with the author.

4. Vaught, “Protecting the Rule of Law: What’s Your Responsibility?” 48 Colo. Law. 4 (Mar. 2019).

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WELCOME JOINED WELCOME || JUST CBA PRESIDENT’S MESSAGE

Welcome New Members

C

ongratulations and welcome to the CBA family! Whether you’re working from home or office, the CBA offers numerous opportunities to enrich your career and the community. Be sure to join in on the discussion at CBA Community and follow us on LinkedIn, Twitter, Facebook, and Instagram.

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DEPARTMENT | LEGAL SUB TITLE RESEARCH CORNER

Uncovering Hidden Government Documents

BY A N DR E A L . H A M I LT ON

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hifts in presidential administrations, agency policies and procedures, and internet standards often result in changes to the content and organization of federal websites. This can make it difficult for researchers to locate documentation—such as consent decrees and guidance memoranda— that may still be in force. The hyperlink or title of such guidance may appear in the Federal Register or within an article or court filing, or it may be referred to by the agency itself, but the link may be broken or the document may be otherwise difficult to locate. The following tips can be used to find elusive government records.

Figure 1. The 2007 Wayback Machine calendar page for www.whitehouse.gov.

If the URL is Known If the URL is known, there are several ways to search for the information. First, the Internet Archive1 provides access to 20-plus years of web history through the Wayback Machine.2 After entering a URL, you’ll be taken to a calendar showing when and how successfully the site was saved. Larger circles indicate multiple captures on a particular day, making more of the site’s content available for viewing; blue circles indicate a more successful crawl of the site.3 Click on a date and provided snapshot link to view the desired site or document. (See Fig. 1.)

Another option is to perform a Google search. Google’s cached version of a website shows what the web page looked like the last time it was visited by one of its crawlers. Enter the cache: search operator in front of a URL into the Google.com search field.4 For example, to review a cached version of the CBA website, enter cache:cobar.org into the search field.

While these backup snapshots are generally used to provide Google users with quick access to slow or nonresponsive web pages and are typically not very old, they may provide the needed entry to a site or document.

Finally, if navigating directly to a known web address is not successful, the URL might provide insight as to where a document used to “live” on a website before its restructuring. For example, the URL www.epa.gov/newsreleases/ epa-declares-outdoor-burn-ban-tulalipreservation.html demonstrates the needed document is titled “EPA Declares Outdoor Burn Ban for Tulalip Reservation.” Simply remove the end of a link—anything following the last forward slash, repeating as necessary—until a valid site is reached. In the case of a major website reorganization, you may need to remove everything but the root of a site’s URL (e.g., www. epa.gov). Then, search the site for the desired

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guidance using the keywords provided in the URL. This strategy is particularly useful when trying to locate a PDF that’s not text-searchable (i.e., it’s been saved as an image), as keyword searches would not be effective.

If the Document Title is Known Just as a URL can provide insight as to where a document used to reside, it can also indicate the title of the needed guidance. Searching for a known document title in quotation marks ensures the search engine will keep all terms together as a phrase.5 You can use the site: search operator to further refine the search to a specific website.6 Using the previous EPA example, you would type “epa declares outdoor burn ban for tulalip reservation” site:epa.gov into the Google.com search field. This leads to the archived article on the EPA website.

This strategy is often more effective than using a website’s embedded search tool. But because each search engine employs proprietary bots that crawl and index the web and use unique algorithms to rank websites, you may need to use more than one search engine and review more than the first page of search results.

Another helpful resource is OCLC, a global cooperative of libraries that “collectively steward a vast quantity of knowledge”7 through WorldCat, which bills itself as “the world’s largest network of library content and services.”8 With WorldCat’s advanced search, users can search by keyword, title, and author.9 The full record of a search result often contains “links to this item” and a unique identifier called a PURL, or persistent uniform resource locator.10 Even if a known URL is broken, a PURL may still be a successful means of access. “Links to this item” may also list a previously unknown website; use the “Known URL” tips above if this address no longer works.

Finally, HathiTrust is a nonprofit collaborative of academic and research libraries with more than 17 million digitized items.11 The mission of its US Federal Government Documents Program is to enhance digital access to US federal publications, including those issued by the US Government Publishing Office (GPO) and other federal agencies.12 Use the advanced catalog search to input information about the needed

document, including author, title, and subject.13 More refined searches may be conducted within the following US Federal Documents Collections: US Federal Documents, US Congressional Serial Set, Bureau of Indian Affairs publications, US Environmental Protection Agency publications, Foreign Relations of the United States, Statistical Abstract of the United States, and US Civil Rights Commission.14 Nonmembers can search across all collections, but viewing and downloading privileges may be restricted.

Additional Search Options If you have a quote or passage from the desired document or site, try searching for that excerpt within quotation marks. The guidance you seek may have been archived on a website other than the issuing agency’s. If searching for the excerpt generates a lot of results but not the full text of

the document, try using the filetype:pdf search operator for a more targeted search by document format. For example, entering “epa wastewise” filetype:pdf into the Google.com search field returns only PDF results. Additionally, both the Wayback Machine15 and HathiTrust16 allow for full-text searching.

If you don’t have a URL, the document title, or a direct quote, conduct a broader internet search using any known document details, such as author, recipient, parties, agency, document, case or other identifying number, and date. You can also try to identify online repositories or special collections that typically contain the type of document you need. Examples include the US Department of the Interior’s Office of Hearing and Appeals database17 and the EPA Web Archive.18 As stated above, it may be necessary to use more than one search engine

and review multiple pages of search results.

Binding agreements such as consent decrees might be on file with a federal court. If you know the related case number and court, use the Administrative Office of the US Courts Public Access to Court Electronic Records (PACER)19 to locate the case docket. If the agreement was filed in the late 1990s or later, the full text may be available for

Colorado lawyer assistanCe Program The Colorado Lawyer Assistance Program (COLAP) is an independent and confidential program exclusively for judges, lawyers, and law students.

Established by Colorado Supreme Court Rule 254, COLAP provides assistance with practice management, work/life integration, stress/anger management, anxiety, depression, substance abuse, and any career challenge that interferes with the ability to be a productive member of the legal community. COLAP provides referrals for a wide variety of personal and professional issues, assistance with interventions, voluntary monitoring programs, supportive relationships with peer volunteers, and educational programs (including ethics CLEs).

We would love to share our success stories, but they are completely confidential.

For more information or for confidential assistance, please contact COLAP at 303-986-3345.

Visit our website at www.coloradolap.org.

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DEPARTMENT | LEGAL SUB TITLE RESEARCH CORNER

download. Otherwise, contact the appropriate Federal Records Center to request a copy of the physical file.20 While PACER does not allow for full-text searches of federal court dockets, this functionality is available via subscription databases such as Westlaw21 and Lexis.22 Many paid databases also allow subscribers to search and browse various specialized documents; an example is Lexis’s EPA Consent Decrees.23 Agency guidance may be submitted to accompany Congressional testimony and can usually be found by searching the US Congressional Serials Set,24 which contains nearly all reports and documents of the US Congress. In addition, the regulations.gov repository site25 contains agency guidance used as “supporting and related material” in the course of federal rulemaking.

Not Everything is Online Not every document is electronically accessible, even if it has been cited recently in the Federal Register or by an issuing agency. The document may have never been made public in an electronic format; this can apply to older as well as recent guidance. Sometimes agencies purposely purge documentation from the internet. In addition, not every website or posted document is indexed by a search engine, and not all sites have been archived and made accessible via the Wayback Machine.

In these instances, it may be necessary to contact a special or repository library. The collection of the National Archives and Records Administration (NARA) (“the nation’s record keeper”26) can be searched online.27 It should be noted, however, that only 1% to 3% of all documents and materials created in the course of business conducted by the US federal government are “so important for legal or historical reasons that they are kept [forever].”28 WorldCat may identify alternative owning institutions. Some libraries listed in WorldCat will lend items or provide copies directly to a requestor; others require that interlibrary loan (ILL) requests be placed through a public or academic OCLC member library. In addition, there are regional archives that specialize in maintaining collections specific to a company

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or an industry. Finally, it may be necessary to contact an agency directly, through its own library (e.g., US EPA),29 or via a Freedom of Information Act (FOIA) request.30 Any of these options may take time and require payment.

Conclusion Locating hard-to-find government documents can be challenging, but the content you uncover may be persuasive, informative, and legally binding. While there isn’t a uniform method for conducting such research, and more than one technique may need to be employed, the time taken may be time well spent.

Andrea L. Hamilton is the knowledge management and research manager for Davis Graham & Stubbs LLP— andrea.hamilton@dgslaw.com.

Coordinating Editor: Robert Linz, robert.linz@ colorado.edu

NOTES

1. https://archive.org/web.

2. https://archive.org/about.

3. Using the Wayback Machine, https://help.archive.org/hc/en-us/articles/360004651732-UsingThe-Wayback-Machine.

4. Refine web searches, https://support.google.com/websearch/answer/2466433?hl=en.

5. Id.; Advanced search options, https://help.bing.microsoft.com/#apex/18/en-us/10002/-1.

6. Id. 7. https://www.oclc.org/en/about.html.

8. https://www.worldcat.org/whatis/default.jsp.

9. https://www.worldcat.org/advancedsearch.

10. PURL, https://www.oclc.org/research/areas/data-science/purl.html. Introduced by OCLC, PURLs are “[w]eb addresses that act as permanent identifiers in the face of a dynamic and changing Web infrastructure.” The Internet Archive has managed the PURL service since 2016.

11. https://www.hathitrust.org/about.

12. HathiTrust U.S. Federal Government Documents Program, https://www.hathitrust.org/ usgovdocs.

13. https://catalog.hathitrust.org/Search/Advanced.

14. https://www.hathitrust.org/u-s-federal-documents-collections.

15. Search—A Basic Guide, Full-Text Search, https://help.archive.org/hc/en-us/ articles/360018359991-Search-A-Basic-Guide#FTS. 16. Advanced Full-Text Search, https://babel.hathitrust.org/cgi/ls?a=page;page=advanced.

17. https://www.oha.doi.gov:8080/index.html.

18. https://archive.epa.gov.

19. https://www.pacer.gov/findcase.html.

20. https://www.archives.gov/frc/locations.

21. https://www.westlaw.com.

22. https://advance.lexis.com.

23. Finding EPA Consent Decrees on Lexis Advance, http://lexisnexis.custhelp.com/app/answers/ answer_view/a_id/1086658/~/finding-epa-consent-decrees-on-lexis-advance.

24. US Congressional Serial Set, https://www.govinfo.gov/help/serial-set; searchable via HathiTrust (https://babel.hathitrust.org/cgi/ls?a=srchls;c=148631352;q1=*), HeinOnline (https://home. heinonline.org/content/u-s-congressional-serial-set), or Lexis (http://lexisnexis.custhelp.com/app/ answers/answer_view/a_id/1088011/~/finding-congressional-documents-in-the-u.s.-serial-set-onlexis-advance).

25. https://www.regulations.gov.

26. https://www.archives.gov/about.

27. https://catalog.archives.gov.

28. https://www.archives.gov/about.

29. EPA National Library Network, https://www.epa.gov/libraries.

30. https://www.foia.gov.

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DEPARTMENT | MENTORING SUB TITLE MATTERS

Mentoring through Crisis Answering the Call with Intention

BY J. RYA N N PE Y T ON

T

he power of mentoring is unequivocal in normal professional times. Over the course of three months, a global pandemic and a national crisis on race and justice have ravaged our professional landscape. The vast toll on human life and human emotion has sparked necessary consideration of the role of mentoring in the face of crisis. As the legal profession takes stock of its own post-pandemic identity and future, the function of mentorship within the profession must also be examined. Today’s reality begs the question, “How do we as legal professionals mentor through crisis?”

Get Comfortable Being Uncomfortable Great mentors show up and engage with mentees in crises and uncertain times, even when that requires creativity and adaptation.

As human beings and professionals, we learn through discomfort. Take this opportunity to lean into discomfort and look for the growth opportunities.

Many legal mentors are most comfortable focusing on the career functions of mentoring, such as teaching a mentee the ropes of practice or carving traditional career advancement pathways. Although those remain important, the psychosocial benefits of mentorship—acceptance, affirmation, friendship, emotional support, reassurance—are especially valuable in uncertain times.1 Psychosocial functions tap into empathy and compassion and involve deliberate expressions of care. Demonstrating emotional and social support might begin with generous listening to understand a mentee’s struggles and concerns.

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Acknowledge and validate the challenges they are facing and the distress they are feeling. Be a role model, show vulnerability, and share authentically about your own experiences during these crises. Be supportive and affirming, and

Research shows that when mentors are actively engaged with mentees, those mentees form stronger emotional bonds to an organization, report higher job satisfaction, and perceive greater support from an organization broadly. be clear about what you know and don’t know.

Give mentees permission to take a break from the news and their work routines to engage in self-care. Just as good leaders care for their people first, so too should mentors demonstrate

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commitment to their mentees through ongoing communication and expressions of care.

At their best, mentorships are life-altering relationships that inspire mutual learning and development. Every growth-fostering interaction in a strong mentorship bolsters a mentee’s professional and personal growth, identity, self-worth, and self-efficacy. Facing an uncertain future, mentees—now more than ever—will leverage connections with mentors to lower anxiety, overcome imposter syndrome, and grasp hold of their mentor’s hopeful vision of how they can not only weather the storm but also continue to thrive in their careers.2 Address Concerns through Coping and Mastery Skills The career functions of mentoring remain important and should continue during crisis.

Create a safe space for career conversations.

Mentees may be worried that they’ll be laid off, that their work will no longer be noticed by their managers, or that their progress toward advancement and promotion will be derailed.

Mentors play a pivotal role in safeguarding retention and building organizational and professional commitment, particularly in times of crisis.3 For mentors working with mentees within the same organization, consistent and committed mentoring relationships are vital to retaining high-potential junior talent and ensuring strong post-pandemic succession planning.

Research shows that when mentors are actively engaged with mentees, those mentees form stronger emotional bonds to an organization, report higher job satisfaction, and perceive greater support from an organization broadly.4 As a mentor, use some of your new discretionary time to leverage your social capital and sponsor mentees, opening virtual doors and making valuable introductions. Pass along credible inside intelligence about the pandemic’s effect on the profession, and provide opportunities for visibility in the virtual workplace by copying mentees on emails and including them in online meetings when appropriate. Online meetings afford a new setting in which to model and teach new skills and behaviors—and the learning may flow in both directions. Mentors might discover that their mentees have much

to teach them about virtual work and new technologies. And as many people are discovering, online meetings have their own rules, norms, and best practices. Both mentor and mentee should adopt a learning mind-set.

Finally, use these crises to contemplate professional purpose. Times of crisis can inspire some to no longer strive to work for the sake of it, but to look for something deeper.

Mentoring sessions, while seemingly focused on the professional side of life, can encourage both parties to delve into their true purpose, both personally and professionally.

Remember: You don’t need to rescue your mentoring partner or solve your mentee’s problems. Instead, offer support that will enable your mentees to overcome challenges on their own.

Provide strategies, skills, and resources that they can use to learn and to grow their efficacy.

Mentor and Sponsor Lawyers of Color The current national conversation on race, justice, and policing has focused attention on what the legal profession is (and is not) doing to generate diverse representation within the profession and within its various systems of justice. In a profession still overwhelmingly dominated by lawyers who are white and male, underrepresented lawyers (especially Black lawyers and lawyers of color) struggle to identify and engage with meaningful mentors.5 Effective role-modeling requires mentees to identify with their mentors; thus, it can be helpful for the two to share a social identity.

But it’s unfair to assume that the few diverse attorneys in senior roles at law firms have the time, energy, and inclination to successfully mentor all other lawyers of color. In fact, a report by the ABA Commission on Women in the Profession found that senior women lawyers of color were often expected to serve as diversity mentors and recruiters for their firms when they reached senior status, and that this expectation limited their access to influential projects, clients, and opportunities at their firms.6 As a result, organizational leaders of all backgrounds must be willing to step in and provide meaningful mentorship to diverse lawyers. By engaging in supportive cross-race mentoring relationships, lawyers can play an

important role in fostering diversity, inclusion, and equity in the profession.

Attorneys who mentor lawyers of color, however, should acknowledge that the profession is rife with unequal power relationships, discrimination, and stereotyping. Holistic mentoring, in which the relationship extends beyond the practice of law, may be easier in same-race mentoring relationships, but research has shown that white mentors who engage in successful cross-racial mentoring relationships with Black mentees have a heightened awareness of the unique challenges those mentees face, gain a holistic understanding of the mentee, and engage in reciprocal relationship-building.7 Thus, diversified mentoring relationships (i.e., mentors of a different race) can succeed when a mentor engages with the mentee’s personal history and identity as well as their professional goals.

Yet white mentors may be hesitant to mentor lawyers of color because they haven’t experienced racism or differential treatment and, therefore, feel they have no meaningful advice to offer. They may not know what to say so they avoid mentoring conversations altogether, or they encourage mentees to contact one of a few senior lawyers of color in their organization or in the community (who may already be overwhelmed with other mentorships). While perhaps well intentioned, this avoidance has a consistent outcome: Black lawyers and lawyers of color often end up with no mentoring at all.8 You don’t need to be Black or a person of color to mentor your colleagues of color. But you will need to take some time to examine your underlying assumptions, rethink what it means to be a mentor, and change how you do the work of mentoring.

We all use the word “mentoring,” but it means so many different things to different people.

When engaging in a mentoring relationship, and especially a cross-race mentoring relationship, it can help to stop using the word “mentoring” and instead focus on three areas: 1. identifying the range of needs your colleague has during their transition into the profession or their organization; 2. determining which of those needs you can best meet; and

3. transitioning from mentor to coach to help them meet their remaining needs.

What Are the Needs of Underrepresented Lawyers?

While every lawyer’s journey is different, many new underrepresented lawyers have a predictable and wide range of needs as they transition from one stage of their career to another. The most common needs are: ■ Professional development training in any area in which they need to excel, such as time management, conflict resolution, case planning, legal writing, and business development.

■ Access to opportunities and networks such as community leadership opportunities, connections to relevant professional associations, access to decision makers, and so on.

■ Emotional support to manage the typical stresses of the partnership track, the transition into their new identity as a lawyer, and their life in a new professional environment.

■ A social and intellectual community to support their transition and to continue to drive their professional agenda forward.

■ Institutional sponsorship from people who will advocate for their best interests behind closed doors and shape the emerging story about them as a colleague, practitioner, and leader.

■ Role models who are currently successfully navigating the profession and exemplify extraordinary success.

■ A safe space to discuss and process their experiences as an underrepresented lawyer without being invalidated, interrogated, devalued, or disrespected.

■ Honest and direct feedback on every aspect of the job that will be used to evaluate their professional growth, specifically their practice skills, writing, and business development.

No one person could possibly meet all of these different needs. As a result, underrepresented lawyers don’t require just one mentor but rather a large and supportive mentoring network.

It is a mentor’s job to make the mentee aware

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that mentoring networks9 will support them more than a single-mentor model will—and to then help the mentee create that network.

Which Needs Can You Best Meet?

Effective mentors take time to identify their own strengths and how they can use their position in the profession to assist their mentee in ways that nobody else can. For example, maybe you’ve recently been appointed to a leadership position in the bar, and you know that one of your mentee’s primary goals is to gain leadership experience through bar association volunteer opportunities. Offer to place your mentee on key committees or working groups, walk them through the leadership application and appointment process, and introduce them to other bar leaders and senior staff. Identify where your mentee’s needs overlap with your expertise. That sweet spot is where you will be the most effective mentor.

Be a Coach, Not a Guru Another way to improve your effectiveness as a mentor is to think of yourself as more of a coach than a guru.10 This is easier than it sounds.

Just shift your focus from being an “oracle of wisdom”11 to helping your mentee identify their needs and the people who can best meet them. Your role is to help your mentee build a large professional network and, ultimately, gain independence from you.12 To sum it up: Gurus tell, coaches ask. It’s really that simple. In the guru model, you are all-knowing, so your job is to tell your mentee how things have worked for you and how they should behave. The data for this analysis is your personal experience. However, because your personal experience is likely to be very different than the lived experience of the lawyer of color you are mentoring, this data is not very likely to be helpful to your mentee. In the mentoring network model, you ask questions—not generic questions, but powerful questions that enable your mentee to learn through reflection and guide you in helping your mentee to build an effective mentoring network. For example: What do you want? What’s holding you back? What new abilities do you need to develop? What is the most meaningful action you could take

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right now? What skills are you missing? What support systems do you need to be successful?

The guru is the center and star of the guru-mentor model, and everything revolves around the guru. As a coach, the goal is to assist your mentee in developing the skills, habits, and network the mentee needs to thrive.13 In short, it’s not about you; it’s about the mentee.

That means conversations are focused on their needs, their obstacles, and their challenges.

stronger and more meaningful professional relationships.

Work to Change Culture As a leader in the profession, you have a unique ability to harness the power of your own position and change the institutions and systems within the profession that inherently undermine access and growth for underrepresented lawyers.

Cultural change is needed, which means that institutional leaders must acknowledge and dismantle the structures that perpetuate cultural bias. Institutional leaders must make it a priority to: ■ value engagement in mentorship and build capacity in this area; ■ make mentorship a critical component of new lawyer education; ■ cultivate cultural competence within the profession’s leaders to better meet the needs of lawyers of color; ■ create and maintain pipelines to the profession for underrepresented lawyers and develop holistic mentoring skills among all leaders in the profession to mentor these lawyers; and ■ recognize the career impact on lawyers of color for serving as a mentor to other lawyers of color and compensate them appropriately for it.

NOTE S

Conclusion Mentoring is a must for surviving and thriving in times of crisis. If there is anything the current crises have taught us, it is how interconnected we all are and how vital those connections are to our well-being and professional growth.

This is a time for connection. This is a time for learning. This is a time for change within the profession. Whether you are a mentor or a mentee, now is the time to engage in mentoring with intention and compassion to create

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J. Ryann Peyton is the director of the Colorado Attorney Mentoring Program and a seasoned consultant and advocate on diversity and inclusivity in the legal field. Before joining CAMP, Peyton focused her law practice on civil litigation with an emphasis on LGBT civil rights.

1. Abbott and Natkin, “Innovation in Supporting Excellence—From Mentoring to Sponsorship, Coaching, and Beyond,” Innovating Talent Management in Law Firms, National Association for Law Placement (2016), https://idaabbott.com/wp-content/uploads/ InnovatingTalent_ch9_IdaAbbott.pdf.

2. Smith and Johnson, “Social Distancing Doesn’t Have to Disrupt Mentorship,” Harvard Bus. Rev. (Apr. 10, 2020), https://hbr. org/2020/04/social-distancing-doesnt-haveto-disrupt-mentorship.

3. Baranik et al., “Why Does Mentoring Work?

The Role of Perceived Organizational Support,” J. of Vocational Behavior (2010), https://www. ncbi.nlm.nih.gov/pmc/articles/PMC2855142.

4. Id. 5. Melaku, “Why Women and People of Color in Law Still Hear ‘You Don’t Look Like a Lawyer,’” Harvard Bus. Rev. (Aug. 7, 2019), https://hbr. org/2019/08/why-women-and-people-ofcolor-in-law-still-hear-you-dont-look-like-alawyer.

6. Gans Epner, “Visible Invisibility: Women of Color in Law Firms,” ABA Commission on Women in the Profession (2006), https:// law.duke.edu/sites/default/files/centers/ judicialstudies/panel_1-visible_invisibility_ women_of_color_in_law_firms.pdf.

7. Preston, “New research finds that crossrace mentoring relationships associated with reductions in perceived racism,” The Chronicle of Evidence-Based Mentoring (Jan. 17, 2019), https://www.evidencebasedmentoring.org/ cross-race-mentoring-relationships-associatedreductions-perceived-racism.

8. Patterson and Korf, “The Power of Informal Mentoring Programs,” The Bencher (Mar./Apr. 2013), https://home.innsofcourt.org/aic_pdfs/ mentoring/korf-patterson_marapr2013.pdf.

9. See Peyton, “Crowdsourcing Mentorship: Creating a New Culture of Mentoring in the Legal Profession,” 49 Colo. Law. 18 (May 2020).

10. Rockquemore, “Be a Coach, Not a Guru,” Inside Higher Ed (July 29, 2013), https://www. insidehighered.com/advice/2013/07/29/essaycoaching-style-mentoring.

11. Id. 12. Id. 13. See Peyton, “One-on-One Professional Development: Mentoring and Coaching in the Legal Profession,” 48 Colo. Law. 18 (Nov. 2019).

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DEPARTMENT | TECHNOLOGY SUB TITLE IN THE LAW PRACTICE

The Remote Courtroom Tips for Effective Virtual Advocacy

BY E R IC JOH NS ON A N D WA DI M U H A I SE N

A

s courts deal with the social distancing requirements related to COVID-19, lawyers are increasingly required to conduct virtual court hearings. Now more than ever, litigators must do more than prepare substantively; they must become adept with technology and be able to present persuasively before the court while sitting at home or in the office. As courts have resumed operations, most hearings have been conducted remotely and will continue that

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way in many judicial districts. This article offers recommendations for practitioners who participate in virtual hearings.

Colorado Courts and Remote Hearings To comply with statewide and local stay-at-home orders, Colorado’s court system suspended most hearings and trials, and limited other operations, except for those deemed essential.

Each jurisdiction has specific administrative

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orders in place that govern court appearances.1 Many courts, including in the 2nd Judicial District, have implemented mandatory phone or video meetings through computer or mobile applications.

How Do Remote Courtrooms Work?

If a hearing is going to take place by telephone conference call, the court will set the time and date for the hearing and notify the parties. The court establishes procedures for telephonic hearings, so you should get to know the procedures for a particular division and read any court orders on the subject. If necessary, contact the division clerk to ask for information about the process.

If a telephonic hearing is conducted, either the court staff will ask for each participant’s phone number in advance and call everyone at the appointed time, or the court will use conference calling whereby parties and witnesses join the call using a dial-in number and PIN. For most significant or substantive hearings, voice-only is not usually sufficient; if you have

a choice in how to participate, opt for video to maximize your persuasiveness.

Appearing by Videoconference Before COVID-19, criminal courts in some Colorado counties sparingly conducted remote hearings in certain contexts (e.g., a defendant appearing by video from the detention facility).

But everything changed in spring 2020 as courts moved to virtual courtrooms in response to the growing pandemic. In some jurisdictions, the process of getting virtual courtrooms ready for expanded use required a great deal of work to set up the technology at the courthouse and in detention facilities, including installing adequate bandwidth and training staff.

Nearly a month after the first Colorado court orders restricting court access and operations, county chief judges further clarified how the courts would continue to operate during the pandemic. Judicial districts have expanded their capabilities to conduct hearings on the record in virtual courtrooms. At the discretion of the presiding judge, and depending on the availability of necessary support staff, parties can schedule matters to be conducted by telephone or by using an interactive audiovisual device such as a computer, tablet, or smart device. The presiding judge, who may appear by using an interactive audiovisual device, may also require, as allowed by law, participants to appear by using

an interactive audiovisual device. The court may set and reschedule matters for hearings to be conducted via an interactive audiovisual device. When a case is scheduled in the virtual courtroom, a link is sent to all lawyers and others involved in the case. The virtual courtroom also allows defendants to appear in court and communicate with an attorney privately during hearings as one would in a regular courtroom setting. The attorneys and court staff can also communicate by private message within the virtual courtroom application.

Choosing the Right Hardware To participate in virtual hearings, it is imperative that you have the right hardware setup. Just like wearing tennis shoes to court sends a message about your respect for the court’s time and how serious you are about being an effective advocate for your client, so does being properly prepared for the technological challenges a virtual hearing presents. At a bare minimum, you will need a strong internet connection and a device with video and audio capabilities, such as a smartphone, tablet, laptop, or desktop. However, using your phone for video is not recommended if you want to project a professional look.

If your video lags, there may be several possible causes. First, you may need to upgrade your computer. Older computers may have inferior cameras and microphones, lack the memory

(RAM) needed to process the video, and have old video cards not up to the demands of modern videoconferencing. Second, double-check the capabilities of your internet connection.

You can check your internet speed for free at various websites, including Google’s internet speed-testing site.2 When you check your internet speed, you will be given two numbers: upload and download.

Download speeds affect your ability to watch a Netflix movie or show, shop online, scroll through social media, view YouTube videos, stream music, and download documents from the web. Upload speeds are important for sending emails with large attachments, backing up data to online or cloud storage services, and working on live, cloud-hosted documents like Google Sheets or Docs. For videoconferencing, you will use both. How much depends on how many parties are in the videoconference and what you will be doing (e.g., screen sharing).

Generally, you will not need more than 10 Mbps download and 3 Mbps upload available to you.3 Keep in mind that everyone else on your network will “use up” some of what is available to you, so try to ensure no one starts downloading HD movies in the middle of your Court of Appeals argument. Finally, regardless of the quality of your computer or internet connection, you should shut down all programs except those that are essential to your video appearance; having

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numerous programs or browser windows open can affect computer performance.

Audio is just as important as video when it comes to making a good impression. Most computers have built-in mics; if you are only appearing occasionally, this should suffice. However, if you are consistently in virtual hearings, mediations, or depositions, consider getting a dedicated USB microphone. Most built-in microphones are “pencil mics,” meaning they will only pick up when you are speaking directly to them and are only good for short range. For significant appearances or arguments, a quality external microphone is best. To avoid feedback or echoes, do not have multiple computers or phones connected to the same hearing in the same location. Separating your video (using a camera or computer) from your audio (using your phone) can improve audio presentation when done properly.

Software Basics Once you have the right equipment in your office or home, the next area to consider is online meeting software. There are a lot of great options to choose from, but you will be required to use the platforms that the courts have chosen for appearances. Cisco Webex, Microsoft Teams, and Zoom are some platforms that Colorado courts are using.

Preparing for Virtual Hearings It is prudent to log in early. Be patient. The judicial assistants and bailiffs are new to this and are learning just like you are. Make sure your mic is muted when you enter the meeting and at all times when you are not speaking. Eliminate all background noise, including sounds from any background applications. Silence your phone, and if necessary, change your notification settings to eliminate disruptive “dings” from incoming texts and emails.

If your virtual courtroom has messaging capability, you will be able to communicate with other counsel, the clerk, or your client while you wait for the judge to take your case.

Use this time to talk about your case just as you would if you were in the hallway in the courthouse. Be very careful about not sending a private message to “everyone” in the messaging

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window, if the platform has one. Always take a look at your judge’s website or any orders issued to see if he or she has any special procedures or etiquette for virtual hearings. And if you have any confusion or doubts as to procedure, consider reaching out to the clerk. Adhering to the court’s preferences is as much an effective part of advocacy in a virtual setting as it is for in-person appearances.

Become familiar with the capabilities of any program you are using. Being able to fully use

Eliminate all background noise, including sounds from any background applications.

Silence your phone, and if necessary, change your notification settings to eliminate disruptive “dings” from incoming texts and emails.

all of a platform’s features will make for better presentations and help your clients. If a court uses Cisco Webex, but you and co-counsel are more capable using another program, the judge may allow you to use your program of choice so long as the judge can control the proceeding, the proceeding remains “open to the public,” and the standards of due process are maintained.

If you have supporting documents that you want the court to see, such as contracts,

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invoices, canceled checks, photographs, or other relevant documents, they should be submitted to the court and to the other parties well before the hearing.

You might also consider asking to allow the litigants (attorneys, clients, witnesses) to do a “dry run” by contacting the court’s judicial assistant.

Visual Presentation When it comes to virtual hearings, presentation matters. Backgrounds should be visually appealing but not distracting. Many programs allow you to slightly blur the background to keep people from becoming distracted by, for example, the titles of the books behind you.

Take steps to prevent other people, animals, or other distractions from becoming visible. (One of the authors conducted a virtual argument in a case in which the attorney was professionally dressed and prepared, but in the background her significant other was visibly walking back and forth in a bathrobe.) Limit rocking or swiveling chairs. This is distracting and irritating, so lock your (and your client or witness’s) chair if necessary. Avoid multitasking so you’re not continually leaving and coming back into the picture.

Lighting might be the single most important thing to consider when getting ready for a video hearing. Avoid any kind of overhead lighting.

Placing your light source directly above you will cast unflattering shadows on your face, especially around your eyes. Unfortunately, most people have overhead lights as the default lighting in their homes. Three soft light sources are recommended. Ideally, place two soft lights behind your webcam to the left and right. Together, they will fill all the hard shadows on your face.

Place the third soft light behind you to act as ring light. This light will help separate you from the background. A ring light and lighting kit is a perfect solution and worth the expenditure.

If you do not have access to spare LED lights and lighting fixtures, you can always count on natural light. Find a room that allows as much natural lighting as possible. Remember, light should not be behind you, but in front of you. If you wear glasses, the light from your computer screen may reflect. Lower the brightness of your screen to reduce this effect.

Raise your camera to eye level, using a higher table, a box, or even a set of books. Typically, camera angles that are higher are much more flattering. When you position your camera lower than eye level, it can make you look intimidating—and no one wants to be looking up your nose through the entire hearing.

Speaking to a camera lens is quite different from speaking live to a group of people, and it’s more difficult to connect with the audience when the critical human connection is missing.4 According to trial consultants Lisa Decaro and Leonard Matheo, you should practice making the same type of focused, laser-precision eye contact on camera that you use with individuals in person.5 Look at the camera, not the picture, when speaking.

Finally, maintain a reasonable distance from your camera. Think news anchor. You want to present a “bust view” that includes your shoulders and upper arms, not just your head.

Make sure any hand gestures are minimal and within the viewable frame.

Dress Appropriately Recently, Judge Dennis Bailey of Broward County, Florida made headlines when he wrote, We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers. And putting on a beach cover-up won’t cover up that you are really poolside in a bathing suit.

So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.6 Professionalism is fundamental to the effective and efficient representation of clients in the legal system.7 Traditionally, the English courts regulated a barrister’s dress in such minute detail that even the growth of the attorney’s beard or the cut of his clothes was subject to scrutiny.8 Most courtroom dress requirements are unwritten; however, ethics rules across the country state that hearings must be conducted according to dignified and orderly procedures to protect the rights of all parties.9 As officers of the court, attorneys should support the

court’s authority and dignity by following the court’s rules of decorum.10 Attorneys should also comply with a particular court’s local customs of courtesy or practice.11 Maintaining sartorial professionalism applies to virtual hearings. Attorneys and court participants should dress in the same professional manner as they would when appearing in person in a courtroom. For better or worse, our clothes affect how we’re viewed by others,12 including

Wait a beat or two before responding or speaking.

Pausing is often effective in any presentation, but it is even more crucial in virtual proceedings as it allows one microphone to be on and prevents the cross-speaking that can make virtual meetings so frustrating.

judges, jurors, and witnesses. Psychologically, human beings are prone to making all sorts of assumptions and decisions based on appearance, and this can make a difference for our clients, especially in close calls.

Conducting Hearings and Trials Preliminarily, ensure witnesses are prepared for their testimony, have sufficient hardware

and bandwidth, and have a full understanding of the relevant platform. When you want to put a document into evidence (that you previously submitted to the court, parties, and witnesses), you should describe the document you are referring to and ask for it to be marked as an exhibit. For example, if you are referring to your partnership agreement, say something like: “I have a partnership agreement between Mr. Jones and Ms. Smith, dated July 1, 2020. It is behind Tab #1 in the binder of documents I submitted.

I would like the partnership agreement marked as Exhibit A.” Using heading and numbering as a form of “chaptering” your argument is particularly effective during virtual proceedings. When you say, “there are three reasons my client should win,” the judge will write down those three reasons and take notes on each of them.

We know virtual meetings can feel more exhausting than in-person meetings.13 To help with this, speak in short sentences that are clear and concise. Wait a beat or two before responding or speaking. Pausing is often effective in any presentation, but it is even more crucial in virtual proceedings as it allows one microphone to be on and prevents the cross-speaking that can make virtual meetings so frustrating.

It is very important that counsel work together to produce an effective hearing. This includes working together in advance to stipulate to exhibits, agreeing on how and when objections will be made, and so on. This planning and professionalism will ensure a smooth and effective presentation.

Think about how the virtual presentation changes the way you do things (e.g., present a document to a witness), and be ready for it. Do not submit 150 pages of bank records when all you will refer to is three pages. Some programs can take a long time to prepare a 150-page PDF for screen sharing, whereas a three-page PDF pops up quickly. Consider having a “cameraman” who can zoom in on a demonstrative exhibit as you discuss it and then move the camera back to you.

Many judges prefer that paper exhibits are delivered to court so they can flip through them while arguments are made. Find out what your judge prefers.

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During the hearing, do not forgo an effective technique or strategy because the hearing is virtual; use visuals, timelines, calendars, maps, charts, and diagrams where appropriate. The more you can make the virtual experience mimic the in-court experience, the better.

are not so easily remedied. Criminal defense attorneys and respondent parent counsel should give serious consideration to how their clients and witnesses will present on video before agreeing to any virtual appearances in substantive hearings or trials.

Special Considerations for Criminal and Dependency and Neglect Matters Virtual proceedings must protect the right to a fair trial and to counsel, as guaranteed under the US and Colorado Constitutions. The courts and attorneys must ensure that defendants in virtual court hearings, as well as respondent parents in dependency and neglect and termination of parental rights cases, have seamless and sufficient confidential discussions with their lawyers and do not become disconnected from remote proceedings.

The United Kingdom has been using video proceedings in varying degrees since 2009. Its experience has raised several concerning issues that pertain to Colorado judges, attorneys, and defendants involved in virtual proceedings.

For example: ■ Defendants appearing on video links in England and Wales were more likely to receive custodial sentences and less likely to be given community sentences than those who appeared in person.14 ■ Clients and practitioners developed adverse perceptions of procedural justice that arose from their physical separation from the legal process and parties involved.15 ■ Disproportionate impacts on particular vulnerable groups (including children and those with mental health problems, learning disabilities, and autism) were reported. It can be difficult in person to recognize when a defendant has a disability or support needs; a video screen makes it even harder.16 ■ Research suggests that videoconferencing is not perceived to be “neutral technology” by some—it is believed to shape interactions, and it impacts people’s experiences of probation.17 Judges should strive to minimize these issues by educating themselves about the potential for bias in virtual proceedings.18 Other deficiencies

Conclusion Colorado courts have embraced virtual court hearings as the new normal to ensure the continued administration of justice through the duration of the nation’s pandemic crisis.

Attorneys must ensure they are prepared and

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capable of providing competent and persuasive representation for their clients in the virtual court era. Some may think it’s excessive to purchase new equipment, stage a professional background, or work to adapt trial skills to a new medium. We disagree. Virtual court hearings will be the norm so long as the nation grapples with the COVID-19 pandemic, and to varying degrees in different practice areas, probably beyond. To provide the best and most persuasive representation for your clients, embrace this change. Those who evolve will be rewarded and more effectively serve their clients.

Eric Johnson is a judge for the 2nd Judicial District Court in Denver. Before joining the bench, he practiced immigration law with Johnson Knudson Law and was a longtime deputy district attorney in the 17th and 1st Judicial Districts—eric.johnson@judicial.state.co.us. Wadi Muhaisen is a founding partner with Muhaisen & Muhaisen, LLC in Denver. He focuses his practice on state and federal criminal defense, civil litigation, and dependency and neglect—wadi@muhaisenlaw.com.

Coordinating Editor: Joel Jacobson, joel@rubiconlaw.com

NOTES

1. https://www.courts.state.co.us/Courts/County/Choose.cfm.

2. https://projectstream.google.com/speedtest.

3. See George, “Upload vs. download speed: What’s the difference?” (July 19, 2019), https://www. allconnect.com/blog/difference-between-download-upload-internet-speeds.

4. Decaro and Matheo, The Lawyer’s Winning Edge (Bradford Publishing Co. 2004).

5. Id. 6. Weston Bar Association, “A Letter from the Honorable Dennis Bailey,” https://www.westonbar. org/so/61N5VoOJe?fbclid=IwAR3gBGUaUfpC8qs0612nMrw-lSDgZkDFiOiCcKGXBjd3SDS8PisCrslH N6c#/main.

7. See Colorado Principles of Professionalism, https://www.cobar.org/For-Members/Committees/ Professionalism-Coordinating-Council/Principles-of-Professionalism.

8. See People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928).

9. ABA Model Code of Prof'l Responsibility EC 7-36 (1981).

10. ABA Standards for Criminal Justice 4-7.1(a) (2d ed. 1980).

11. ABA Model Code of Prof'l Responsibility DR 7-106(C)(5).

12. Fletcher, “What Your Clothes Might be Saying about You,” Psychology Today (Apr. 20, 2013), https://www.psychologytoday.com/us/blog/do-something-different/201304/what-your-clothesmight-be-saying-about-you.

13. Robert, “Here’s Why You’re Feeling Zoom Fatigue,” Forbes (Apr. 30, 2020), https://www.forbes. com/sites/yolarobert1/2020/04/30/heres-why-youre-feeling-zoom-fatigue/#50f367872ac6.

14. Terry et al., “Virtual Court Pilot Outcome Evaluation,” Ministry of Justice Research Series (Dec. 2020), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/193633/virtual-courts-pilot-outcome-evaluation.pdf.

15. Video conferencing for trial and sentencing, Gov.uk (May 15, 2019), https://www.gov.uk/ guidance/video-conferencing-for-trial-and-sentencing.

16. Id. 17. Id. 18. Lee, “Awareness as a First Step Toward Overcoming Implicit Bias,” Enhancing Justice: Reducing Bias 289 (GWU Law School 2017), https://scholarship.law.gwu.edu/cgi/viewcontent. cgi?article=2550&context=faculty_publications.

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FEATURE | TITLE FAMILY ENVIRONMENTAL LAW LAW

Assessing Rule 16.2 15 Years and Counting Part 2

BY DAV I D M . JOH NS ON

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CRCP 16.2 was adopted to facilitate case management and discovery in family law cases. Part 1 of this article reviewed the rule’s genesis and case law interpreting it. This Part 2 looks at an informal survey of domestic relations judges and attorneys to examine the rule’s effect on family law practice today.

C

RCP 16.2 became effective in January 2005. It was created to provide a uniform procedure for resolving all issues in domestic relations cases and thus reduce the negative impact of adversarial litigation wherever possible. To achieve its goal, the rule contemplates management and facilitation of cases by trial courts, to allow disclosure requirements, discovery, and hearings to be tailored to the needs of each case. The rule aims to provide parties a just, timely, and cost-effective process.

Part 1 of this article reviewed the genesis and history of Rule 16.2 and the case law interpreting it over the past 15 years.1 This Part 2 reports on an informal survey the author conducted among domestic relations judges and lawyers.2 The survey asked a series of questions about the rule and how it was being implemented.

The answers are reported here anonymously.

Rule 16.2 in the Real World The author conducted a small and unscientific survey of family law attorneys and family court judicial officers across the state from large, medium, and small judicial districts. The goal was to have the rule’s stakeholders share their experiences with the rule to assess whether Rule 16.2 is serving its purposes.

The survey questions and a summary of the responses follows.

1. Overall, do you find that the rule is meeting its goals?

Judges ■ Overall, the rule is meeting its goal of case management, but it’s hard to say if it is reducing conflict.

■ The rule is partially meeting its goals.

That is because compliance is partial. The

■

■

■

■ ■ ■

■ ■

proliferation of cases without attorneys has an impact.

The timeliness goal is difficult because court dockets are so congested. Not sure what we can do about that. The lawyers cannot control that. Requests for a continuance often are made because a pro se party hires counsel at the last minute.

Reducing the negative impact of litigation is a huge goal. Most of the parties who come to my courtroom would be better served if they never came to the courthouse. If they had access to a person with legal training and training in change management counseling, they could get help in finding a more productive solution at a fraction of the cost.

The rule is substantially meeting its goals compared to the free-for-all style of case management we used to have with each judge having his or her own case processing plan.

I have found that discovery disputes are way down from the old days.

There is a significant difference in compliance between attorneys and pro se parties.

The work of the family court facilitators (FCFs) at the initial status conference (ISC) greatly cuts down on litigation. Diligent attorneys follow the rule. Less diligent attorneys do not. Most pro se parties do not follow the rule.

Pro se parties have no understanding of the rule or even its existence.

Pro se parties are lost.

Attorneys ■ I do not think the rule is meeting its goals in [this large urban district]. The judges simply do not have the time or resources to

tailor the needs of each case. New judges unfamiliar with domestic relations do not receive adequate training in domestic cases. Experienced and seasoned domestic relations judges have the wisdom to see through smoke screens, and they are invaluable. A dedicated family court in large districts is the solution.

■ It is for the attorneys who read the rule.

Some lawyers believe if there is a neutral expert, they simply have to provide information to the expert and not comply with the rule’s disclosures. That has resulted in last minute messes.

■ Overall, I think it’s meeting its goals very well.

2. Judges: What do you do to actively manage and facilitate the domestic relations cases you handle?

■ Adding a pretrial conference to my docket has done wonders for me and the parties in my courtroom. A key is giving parties a deadline to work against and impose consequences if the deadline is not met.

■ A month before the final hearing I have an informal status conference to get a feel for final time requirements and to address any evidentiary issues. I have a discovery protocol that does away with written motions.

■ If there are disputes, I schedule in-person or telephone conferences.

■ I set a pretrial readiness conference a month or so before the hearing. We identify issues far enough in advance to be able to resolve them and so there are no surprises. You would be surprised how often this simple exercise of articulating issues and the parties’ positions on them

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resolves many issues and, sometimes, entire cases.

■ I hold an initial case management conference in all cases at which time I set final orders. I ask the attorneys to focus on any anticipated discovery and legal issues.

■ I will meet with the attorneys if necessary to regulate discovery or even to discuss the merits of the case, if they request it.

■ Setting aside time for pretrial conferences is hard, but I do it because they are helpful.

I require mediation before the pretrial and encourage additional mediation if the parties agree it might help. I require the parties to have mediation scheduled before my division will set the pretrial and final orders.

■ When a case is set for final orders, I send out a Case Management Order with deadlines that lets the parties know what is expected of them. When one side files a motion to compel I don’t wait for a response, but I set it for a status conference so the issue can be resolved quickly.

■ I am not as active in case management as some judges are. This is simply my style.

I do not feel it is my case to litigate. If I tried to keep track of who filed a Joint Trial Management Certificate (JTMC) on time I would have to hire another clerk full time and they still would not do it.

This is a hill I have declined to die on.

■ I set quick deadlines for Parental Responsibilities Evaluation (PRE), Child and Family Investigator (CFI), and Child’s Legal Representative (CLR) motions. I require a motion for a supplemental PRE to be filed within seven days of mailing of the first report to avoid last minute continuances. A firm trial date requires parties to deal with the issues and focus.

■ I don’t do pretrial conferences. Discovery has rarely come up as an issue since I have been on the domestic relations bench.

3. Attorneys: Do judges engage in active case management?

■ It’s a mixed bag. There is no uniformity in the application of the rule due to differences in experience and temperament

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on the bench. Some judges simply hate domestic relations.

■ Much better than a few years ago. Most domestic relations judges now set a pretrial conference about a month out and that helps settle discovery disputes.

Dealing with discovery issues in a phone call with the court is much better than filing, for example, motions to compel.

■ Judges who set a pretrial conference several weeks before final orders seem to have a much better handle on the cases, and these allow for advance problem solving as to discovery issues, witness issues, and evidentiary issues. Most attorneys find the pretrial conferences to be very helpful.

4. How do you grade the majority of attorneys who regularly practice family law for following the rule to achieve its goals: A=outstanding; B=good; C=average, no complaints; D=poor; F=ignores the rule and its goals.

Judges ■ This is a hard one. It is so attorney specific and rule specific. I would say B- to a B. Most attorneys file the sworn financial statements but do not update them, or they update them on the date of the hearing. I routinely see motions to compel two weeks before a hearing when the case has been pending for months.

■ I would say a B. The biggest problem is filing the JTMC on time, and timely notice of witnesses and exhibits. I wish attorneys would put more legal authority in the JTMC to support their positions.

■ The attorneys I see do a good to average job complying, B- to C+. Big dollar divorces tend to result in a lot of careful disclosures when someone has hired a good attorney.

■ I would rate most at between good and outstanding. I really do believe most attorneys have an appreciation of the rule’s goals and the benefits it provides without specific requests for discovery.

■ B+, maybe even an A-. Judges like to complain about lawyers, particularly in

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domestic relations. However, I’ve had overall good experiences.

■ I have attorneys in each category. I understand that sometimes the problem is that the client is not cooperating.

Attorneys ■ I think most attorneys try to comply, but updates are rare and you have to chase down current information before mediation or trial.

■ I would give a B to most attorneys. Pro se parties are a big problem. I don’t believe judges are strict enough with enforcing the rule with pro se parties.

5. How do you grade the majority of attorneys who regularly practice family law for their use of the Joint Trial Management Certificate to problem solve and narrow the issues?

Same scale as question 4.

Judges ■ B. The JTMC helps focus the court and the parties on the true issues in dispute. For me, what is most helpful is a description of the disputed issue, a few citations to the controlling law, and a brief statement of facts supporting the position taken.

■ Most lawyers use the JTMC to manage their case. How much they use it for problem-solving or narrowing issues is hard to say, because I only see the end product.

It is usually very clear how much effort the attorneys devoted to problem solving.

■ In some cases, somewhat rare, the JTMC does serve the purpose of narrowing issues. This requires two attorneys who really want to narrow the issues. This is more common in big dollar cases.

■ B. At my pretrial, I tell them exactly what I want to see in the JTMC (i.e., be specific with parenting time schedules, spreadsheets, amounts sought for support, and so on). It also helps me see how close the parties are to an agreement; therefore, I might invite the attorneys into chambers to point out how close they are, but they don’t see it because they are too in the weeds in their case.

■ B. Overall most attorneys seem quite willing to narrow it to just a few disagreements.

■ C. Most file the JTMC on time but it is of little value. It will say that debts, maintenance, or parenting time are in dispute with little detail. It will state that an undetermined equalization payment will be requested based on a spreadsheet to be submitted at trial. This is of no value to the judge. A well-crafted spreadsheet should have specifics on all the issues. I consider the JTMC to be the “road map” for the final order. Attorneys waste too much time by not stipulating to exhibits. A big exhibit book does not win a case. The JTMC should tell a story and have a theme.

■ Most JTMCs are not very helpful. I require them seven days in advance and have my clerk call if they are not filed on time. When I read the file, it is often the night before the hearing, and so often the information in the JTMC is just a bunch of word vomit about the disputes without any proposed solutions, and no legal authority to support a position. A JTMC should be a road map for the court to follow.

Attorneys ■ I would give a C- or D. Most lawyers wait until the last minute. Trying to get stipulations to facts or exhibits is like pulling teeth.

■ C or D. There are a handful of attorneys who put in the time and effort to identify their positions in the JTMC, but most do it last minute and rush to just get something down on paper. Often, they come into court with a different position.

■ This is a hard one. Lawyers don’t seem to meet face-to-face much anymore. There is no sitting down to go through the JTMC like in the past. However, judges are getting better at enforcing the importance of the JTMC, so it is easier now to get feedback from the other attorney.

6. Do the parties and attorneys make good faith efforts to comply with the rule’s disclosure requirements in a timely manner? Same scale as question 4.

Judges ■ Overall a C. Attorneys are better than self-represented parties. Most of the cases are pretty simple, and we have adequate disclosed information.

■ I have relatively little trouble with attorneys. With the pro se parties, who comprise about 75% of our dockets now, I see little compliance.

■ B to B-. Most people file the sworn financial statement on time. Rule 16.2 disclosures are hit and miss, and updates come at the last minute.

■ Late disclosures are very common. Grade of C. Sometimes it is the client who won’t cooperate with his or her own lawyer.

■ C. It is the exception rather than the rule that I don’t have an objection that an exhibit has not been properly disclosed; always with pro se parties, and usually with attorneys.

■ A- for represented parties. C for pro se parties.

Attorneys ■ For the most part, yes. I rarely file a motion to compel. Usually it is not the attorney’s fault.

■ I give most a C. ■ I would say a B. ■ Usually it is not the lawyer’s fault. The parties often try to manipulate the system.

Some people think the law does not apply to them, or they say they are too busy or assert privacy objections. Judges seem unsympathetic to lawyers who are doing their job and meeting with uncooperative parties.

7. Do the parties and attorneys make good faith efforts to select a single expert for any issue needing an expert opinion? Same scale as question 4.

Judges ■ It is rare in [this smaller judicial district] for parties to select a single expert in disputed matters such as business valuations, ability to work, and so on. Most common is a single real estate appraiser.

We have only one qualified expert to do

■

■

■ ■

■

■

a PRE and everyone seems to think this expert is reasonable.

C-. I don’t think this option is adequately used by counsel or pro se parties, and it could be a vehicle to reduce conflict and save money.

I would give them an A to an A- on this. That may be because we have so few experts in town. I think a bigger noncompliance issue is expert disclosure when there are competing experts.

Probably a B. I don’t see that many experts outside the CFI and PRE experts.

I would give this a C. I rarely see an expert, even in cases that I think could use one.

I don’t think they do a very good job at using a joint expert.

Experienced lawyers get an A-. Inexperienced counsel, or those who never look for a common sense realistic outcome, I would give a D. I would give a B for child issues but an F on most property issues. I rarely see a joint expert on property issues, but I understand why some lawyers want to retain an expert to help strategize and educate the client.

Attorneys ■ I would give lawyers an A or B. I think most lawyers try to save time and money with using a single expert.

■ I almost always use a single expert for real estate values and personal property, but never for business valuations or for trust analysis or commercial real estate. Those issues are complex, and the expert can help educate the client and lawyer with discovery and settlement strategies. With good experts on both sides I almost never go to trial.

■ Yes. On occasion I may retain an expert CPA to advocate for my client, but not often.

8. Do judges impose sanctions for noncompliance with the rule?

Judges ■ Not often. The most frequent sanction I impose is to not allow exhibits that are

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not disclosed or have not been disclosed in a timely manner.

■ Not often. The most often is to impose attorney fees if someone is not compliant with discovery. If a disclosure is really late, I will exclude evidence. This is where the pretrial conference is really helpful. There is no point in having the rules if we are not going to enforce them.

■ Not often. A detailed analysis from the bench shows little if any prejudice. I am less concerned about “protecting” negligent attorneys than with allowing their clients to have their day in court with no sanction impacting their ability to get in their evidence. My sanctions for material breaches are often a short continuance or bifurcation of the case with the offending party paying the fees of the other side.

■ Occasionally. I usually will order that a party cannot introduce evidence or testimony that was not disclosed. I also will impose attorney fees.

■ I am almost never seriously asked to impose sanctions. I think I have done it twice. Sanctions are requested almost as a matter of rote but are appropriate only in rare cases. Disallowing a witness or an exhibit is asking for a reversal at the Court of Appeals.

■ Not often. Occasionally. Almost never.

Attorneys ■ Good, but they err too often on the side of allowing exhibits that are disclosed late.

■ It seems the bench is very lenient on 16.2 disclosures, even with something as basic as income documentation and when lawyers represent both sides.

■ Judges need to come down harder on parties who do not comply and lay down the law and impose sanctions. Judges need to recognize that good lawyers are doing their job when they seek sanctions in these cases, but they accuse us of whining and not getting along. Judges are far too lenient on pro se parties.

■ Judges seem to allow the bare minimum for pro se parties.

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9. Judges: Do you ever appoint an expert on your own motion under Rule 16.2(g)(2) and CRE 706? Comment if you wish.

■ Rarely. Only in a pro se case, and it would be a CFI or CLR. ■ I have appointed a CLR once to obtain information about the preferences of a teenage child, but otherwise no.

■ No. There are times I would like to but do

“

As suggested by one of the judges, the court system needs to keep searching for better ways to serve families, but in the meantime, the goals of Rule 16.2 are worthy of pursuit.

” not. I am very leery of making the parties spend more money. I also feel that it would be shirking my responsibility to do my job.

■ I have appointed a CFI on my own motion.

Usually it is when the parties are pro se and I need a neutral third party to look at what is going on with the kids.

■ Once in 18 years on the bench. That was a wealthy couple. I am generally reluctant to saddle the parties with more debt.

■ No. I have never been comfortable with

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court appointed experts in civil or domestic relations cases. It feels too much like the court is placing its finger on the scales.

■ I have not but will suggest it to the parties.

■ “No” twice, without comment.

10. Judges: Have you ever conducted a settlement conference upon the consent of both parties under Rule 16.2(i)? Have you ever suggested this on a case? Has it ever been suggested by the parties or counsel on a case?

■ Yes. I have called attorneys in to discuss issues. I have also had attorneys ask to see me to get my input. Sometimes it is when the parties are close to an agreement right before a hearing. They ask my input to help push the clients to an agreement.

■ No. I would be troubled by pursuit of what I consider a true formal settlement conference by the actual decision maker. I think this has too high a risk of undermining the confidence in a disputed decision. I have certainly facilitated communication between the parties to help find common ground but only in a limited way, in the courtroom on the record in the course of the pretrial readiness discussion.

■ I have not. However, when I bring the parties in for the status conference a good part of it consists of me trying to get them to reach agreements on anything they can.

■ I order mediation in all cases unless there is a waiver due to domestic violence. I have not done any settlement conferences and have not been asked to do one. I am not qualified to do one.

■ “No” to all three questions four times, without comment.

11. What would you change about the rule?

Judges ■ No suggestions at this time. I think the necessary tools are generally in the rule.

Candidly, I think we need to encourage the bench to be more involved and proactive in interacting with the parties and counsel to effectively manage all cases, including domestic relations.

■ Maybe reference Rule 121 and that motions need to comply with Rule 121, cite legal authority, and the duty to confer.

Almost no one complies with Rule 121 when asking for attorney fees and costs.

Do we need Rule 16.2(c)(4)(B) [limiting motions practice]? People file whatever they want all the time. Generally, I like the rule.

■ I would require the JTMC to be filed 14 to 21 days before the hearing. An earlier deadline would require the parties to confront the issues and exchange positions, and it would lead to better trials and more settlements.

■ I have not noticed a problem with the existing rule. However, I would change our whole approach if I could and make the family court facilitator’s training more robust and keep them physically out of the courthouse. But that is beyond the scope of the question.

■ Authorizing limited discovery for child support or maintenance modifications would make sense. Usually the only information needed relates to income.

Attorneys ■ I would like the rule to be clear that the duty to make full disclosure is on the parties and that the appointment of a neutral expert does not relieve them of that duty.

■ The best solution is a dedicated Family Law Court. The lack of uniformity between courts is mind boggling. Suggestions for this have been made in great detail after years of study and rejected as unfeasible.

■ The rule could be more clear about what is expected for “supplemental” disclosures.

Lots of paper is generated when months of bank statements or credit card statements are requested with no real purpose or benefit.

■ I would reduce the scope of disclosures in post-decree child support cases to focus only on issues related to such things as income and medical expenses. The rule should allow appropriate automatic discovery in post-decree cases. The 63-day

requirement for disclosure of witnesses is too far out, especially if mediation has not occurred. Twenty-one to 28 days makes more sense.

Conclusion Rule 16.2 was a sea change in how the courts and family law practitioners handle cases.

It recognized for the first time that “[f ]amily members stand in a special relationship to one another and to the court system.”3 The rule embraces the principle that spouses and parents are in a fiduciary role to each other and to their children.4 Rule 16.2 aspired to make the process less adversarial and to provide families with “a just, timely and cost effective process.”5 Based on the author’s informal survey, it seems likely that the majority of lawyers now practicing family law on a regular basis do not recall the “bad old days,” because based on their years in practice, they have only practiced with Rule 16.2 in its current form.6 Lawyers who never practiced under the old rules have nothing to compare it to, but based on their answers, more seasoned practitioners see it as an improvement. It is safe to say that the concerns of many family law attorneys back in 2003–04 that the rule would destroy the attorney-client relationship have not come to fruition.7 Finally, the author concludes that the verdict on the impact of Rule 16.2 is a mixed one. As with any human endeavor, how the spouses, parents, family members, lawyers, and judges implement the rule and its goals is what counts.

Unrepresented parties struggle with compliance, but that is not a problem unique to family law cases.8 Lawyers could do a better job of meeting deadlines and making sure their clients update their disclosures. Judges struggle with finding time to do meaningful case management given their busy dockets, but those who do so see favorable results with fewer contested trials or trials on narrower issues. Everyone would benefit if those involved would focus on defining what the important issues are and tailoring the process to the needs of each case. As suggested by one of the judges, the court system needs to keep searching for better ways to serve families,9 but in the meantime, the goals of Rule 16.2 are worthy of pursuit.

David M. Johnson is a senior partner with Johnson Kush, P.C. in Colorado Springs. He has practiced family law for over 40 years, and he now concentrates on mediation and arbitration of family law cases. Johnson is a former chair of the CBA Family Law Section and was a member of the Supreme Court Standing Committee on Family Issues that drafted Rule 16.2.

He served as CBA president in 2009–10—dave@ johnsonkush.com.

Coordinating Editors: Halleh Omidi, hto@ mcguanehogan.com; Courtney Allen, allen@ epfamilylawattorneys.com NOTE S

1. Johnson, “Assessing Rule 16.2: 15 Years and Counting, Part 1,” 49 Colo. Law. 28 (July 2020).

2. In the fall of 2019 the author sent out a survey of 10 questions to 20 district court judges in judicial districts along the Front Range and on the Western Slope. Several judges from smaller districts were included and responded. A similar survey was also sent to 50 lawyers along the Front Range. The response rate from the judges was about 75% and from the lawyers was about 20%. Several responses to some of the questions were brief and had no comments other than to provide a letter grade of A through F. Some questions were not answered. As noted, it was very unscientific.

3. Rule 16.2(a).

4. In re Marriage of Schelp, 228 P.3d 151, 156 (Colo. 2010).

5. Rule 16.2((b).

6. On average, about 900 new lawyers have been admitted annually since 2005. See https://www.adaptibar.com/state-bar-examresult/CO. There are currently about 18,000 CBA members, https://www.cobar.org/Aboutthe-CBA/Quick-Facts-About-the-CBA. 7. This assertion is based on the author’s own experience and a review of the case law that reflects no dispute ever coming before the appellate courts related to any conflict between Rule 16.2 and Rule 1.6 (Confidentiality) of the Rules of Professional Conduct.

8. Colorado Access to Justice Commission, Justice Crisis in Colorado 2014: Report on Civil Legal Needs in Colorado at Executive Summary 1-2 (CBA 2014), http://www. coloradojustice.org/portals/16/repository/ ATJHearingFullReport.pdf.

9. In 2007, the CBA Family Law Section created a task force to study the feasibility of a unified family court in Colorado. In 2009, the task force issued a report to the Family Law Section. The report urged the section to ask the legislature and the Supreme Court to study the benefits of creating a unified family court in Colorado. Such a court would have judges who handle only family court cases, with dedicated staff and resources to assist families who enter the legal system. Anyone who wants a copy of the task force’s report may contact the author at dave@johnsonkush.com.

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FEATURE | TITLE LABOR AND EMPLOYMENT LAW

Calculating Economic Losses in Tenth Circuit Employment Termination Cases C H A R L E S L . B AU M I I

This article reviews Tenth Circuit guidance on addressing economic damage calculations for lost pay in employment termination cases.

T

he Civil Rights Act protects workers from discrimination on the basis of sex, race, color, national origin, and religion.1 Similarly, the Age Discrimination in Employment Act (ADEA) protects workers on the basis of age,2 the Americans with Disabilities Act on the basis of disability,3 and the Family and Medical Leave Act on the basis of pregnancy.4 These legal protections have recently been extended.

Three federal circuit courts reached conflicting opinions regarding whether Title VII protections through the Civil Rights Act are provided for workers on the basis of sexual orientation and gender identity in employment cases.5 As a result, the US Supreme Court reviewed these

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cases and recently determined in Bostock v.

Clayton County, Georgia that employment protections extend to workers on the basis of sexual orientation and gender identity.6 Consequently, economic damage awards for lost pay will likely now become more prevalent.

Attorneys may ask an accountant or economist to calculate the present value of a plaintiff’s economic damages for the court. This article examines eight key elements to be addressed when calculating economic damages from lost pay in employment termination cases: back and front pay, employee benefits, work life expectancy, mitigation and collateral benefits, pay increases, net present value, prejudgment interest, and tax differentials. The article focuses

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on guidance from the Tenth Circuit for calculating these elements.

Back and Front Pay Federal courts attempt to make wronged plaintiffs in employment termination cases whole with awards for lost pay.7 Plaintiffs may be awarded damages for lost back pay,8 from the discharge to the trial, and lost front pay,9 from the trial onward. In the Tenth Circuit, reinstatement is preferred to a front pay award,10 and front pay is only awarded when (1) the employer is hostile, (2) it is impossible for the working relationship to be amicable, or (3) animosity caused by the lawsuit has irreparably damaged the employer-employee relationship.11

Economists may calculate damages for lost pay for the court.12 Factors the Tenth Circuit considers when awarding damages for lost front pay include: work life expectancy, salary and benefits at the time of termination, any potential increase in salary through regular promotions and cost of living adjustment, the reasonable availability of other work opportunities, the period within which a plaintiff may become re-employed with reasonable efforts, and methods to discount any award to net present value.13 Employee Benefits A meaningful portion of a worker’s compensation—about 30%, on average—is provided in the form of employee benefits.14 Damages for lost employee benefits are awardable in federal employment termination cases.15 Examples of employee benefits that Tenth Circuit courts have considered as damages include lost “medical, dental, and vision benefits” and “the ability to participate in the company’s 401(k), short-term disability, life insurance, and accidental death and dismemberment plans.”16 Economists and accountants have calculated for the court the value of lost employee benefits, including the value of lost stock options.17 For these valuations, some economists have used national average employee benefit rates.18 Courts have also projected the value of lost employee benefits as a percent of annual salary (e.g., employee benefits equal 15% of pay).19 Federal circuits are split in employment cases about whether to measure damages for lost health insurance benefits as the terminated worker’s actual out-of-pocket replacement expenses (or subsequent medical costs when the health insurance was not replaced) or the premium costs to the terminating employer.20 The Tenth Circuit has used both procedures, but a new approach was recently proposed in a district court within the Tenth Circuit where lost back health insurance benefits would be based on a plaintiff’s replacement costs, and lost future health insurance benefits, for which there cannot yet be out-of-pocket expenses, would be projected as a percentage of pay.21

“

In the Tenth Circuit, the defendant must prove both the existence of suitable alternative positions and that the plaintiff did not use reasonable care and diligence seeking them.

This is different than several other federal circuits, where it is now no longer necessary to provide evidence of suitable alternative positions when the plaintiff has not used reasonable, diligent efforts to search for them.

”

Work Life Expectancy Courts must specify an end date when awarding lost front pay.22 Courts in the Tenth Circuit have awarded lost pay for relatively short periods, such as two years of back pay and no front pay,23 and for relatively long periods, such as 13 years of lost front pay.24 The Tenth Circuit suggests considering the period represented by work life expectancy.25 Economists define work life expectancy to be remaining years in the labor force and have calculated work life expectancy for the court to common retirement ages, such as age 65 or 70.26 Mitigation and Collateral Benefits Terminated workers are obligated to mitigate damages by searching for suitable alternative employment.27 Economic losses should then be calculated as lost pay reduced by actual or projected earnings from mitigation.28 Damages for lost back or front pay are not precluded by inadequate mitigation, but the damage award for lost pay should be reduced by the amount that the plaintiff could have earned from comparable alternative employment.29 The plaintiff “need not go into another line of work, accept a demotion, or take a demeaning position.”30 Further, terminated plaintiffs are not required to be successful in their mitigation efforts, but they must put forth reasonable exertion to mitigate damages.31 The burden of proving that the plaintiff failed to adequately mitigate damage rests with the defendant. 32 In the Tenth Circuit, the defendant must prove both the existence of suitable alternative positions and that the plaintiff did not use reasonable care and diligence seeking them.33 This is different than several other federal circuits, where it is now no longer necessary to provide evidence of suitable alternative positions when the plaintiff has not used reasonable, diligent efforts to search for them.34 Unlike these circuits, the Tenth Circuit has not relaxed this requirement.35 A collateral source rule generally precludes the deduction of third party benefits from a damage award. In employment cases, courts in most federal circuits, including the Tenth Circuit, retain discretion to deduct collateral benefits.36 Collateral benefits that cannot be deducted

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in the Tenth Circuit include unemployment benefits37 and disability benefits.38 However, severance pay from the terminating employer would not constitute a collateral benefit and should be offset from the damages.39 Results for other types of benefits are mixed.

Social Security income has been deducted in some cases,40 but not others;41 similarly, pension income has been deducted in some cases,42 but not others.43 Pay Increases Economic statistics show that wages grow over time, due to price inflation and advances in labor productivity, and with age, as workers are trained and gain experience over a career. One of the factors to consider when awarding front pay in the Tenth Circuit is “potential increase[s] in salary through regular promotions and cost of living adjustment[s].”44 Economists and accountants have included wage increases in their front pay calculations (e.g., 3.5% annually in one case),45 but Tenth Circuit courts do not always explicitly incorporate wage growth in damage awards for lost front pay.46 Other federal circuits have denied adjustments for wage growth as too speculative, absent expert testimony or evidence of past patterns of wage increases.47 Net Present Value Future losses in Tenth Circuit employment cases should be discounted to “net present value.”48 This is because a lump sum paid today (or at the time of judgment) can grow with interest over time if invested. The present value is the amount of money today that, when invested, will grow with interest to equal the future sum of money. The lower the discount (or interest) rate, the larger the present value of future losses must be. The US Supreme Court has concluded that the interest rate used for present value discounting should be based on “the best and safest investments.”49 Various approaches for calculating present value have been used in the Tenth Circuit, and the method of first including wage growth and then separately discounting lost future pay to present value has long been approved of.50 However, some courts in the Tenth Circuit

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have used a “net discount rate,” which equals the interest rate for discounting minus the wage growth rate.51 This approach assumes the difference in the interest rate on investments and the rate of wage inflation are constant and accounts for both simultaneously with one rate—the net discount rate. 52 Forensic economists in this circuit have debated whether an appropriate net discount rate is 2% or 4%,53 and a recommended range of 1% to 3% was cited by one court within the Tenth Circuit.54 In a third approach, several courts in the Tenth Circuit have explicitly refrained from adjusting future losses for present value or for subsequent pay increases.55 This approach, known as the “total-offset method,” is based on the assumption that the discount rate and wage growth rate are equal and cancel each other out.

Prejudgment Interest Courts in the Tenth Circuit have the discretion to award prejudgment interest on economic losses, but prejudgment interest is not a right and has been denied.56 The court must determine whether prejudgment interest would “compensate the injured party” and whether “equities would preclude the award.”57 When awarded, prejudgment interest compensates for the monetary value of the loss from the time of the loss to the payment of the judgment.58 Each loss accrues incrementally, as each wage would have been earned, until payment of the damage award.59 Courts within the Tenth Circuit also retain discretion to set the appropriate interest rate.60 Rates typically used include state statutory rates, the federal post-judgment rate set forth in 28 USC § 1961 (the rate on 52-week treasury bills), and the IRS rate set forth in 26 USC § 6621 (the federal short-term rate plus 3%).61 A formula set forth in Reed v. Mineta provides for compounding interest.62 Tax Differentials Victims of discrimination may face additional tax liability from a large lump-sum damage award for lost earnings in employment cases, because such awards are taxable as wages63 and may move the plaintiff into a higher tax bracket.64 Courts in the Tenth Circuit have the discretion

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to adjust damage awards for differential tax liabilities in employment cases.65 Historically, the Tenth Circuit concluded that tax adjustments were not typically appropriate.66 More recently, this circuit has joined other federal circuits, including the Third67 and Seventh Circuits,68 in providing these adjustments with greater frequency, partly due to changes in the federal tax code.69 Expert testimony from an economist may be useful to quantify the necessary tax adjustment.70 Conclusion The Tenth Circuit looks at eight key elements when addressing economic damage calculations for lost pay in employment termination cases. Attorneys should become familiar with permissible methods of damage calculations and follow the Tenth Circuit’s guidance when handling cases within this circuit.

Charles L. Baum II is a professor of economics at Middle Tennessee State University, where he has taught since 1999. Baum received his Ph.D. in economics from the University of North Carolina at Chapel Hill. He is a member of the National Association of Forensic Economists and the American Academy of Economic and Financial Experts. Baum has served as an economics expert for plaintiffs and defendants in numerous cases—(615) 556-9287, cbaum@ baumeconomics.com.

Coordinating Editor: John Husband, jhusband@ hollandhart.com NOTES

1. 42 USC §§ 2000e et seq.

2. 29 USC §§ 621 et seq.

3. 42 USC §§ 12101 et seq.

4. 29 USC §§ 2601 et seq.

5. Zarda v. Altitude Express, Inc., 883 F.3d 100, 106 (2d Cir. 2018) (holding that sexual orientation discrimination constitutes a form of discrimination in violation of Title VII); Equal Emp’t Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574 (6th Cir. 2018) (holding that discrimination on the basis of transgender and transitioning status violates Title VII); and Bostock v. Clayton Cty. Bd. of Comm’rs, 723 Fed. Appx. 964 (11th Cir. 2018) (holding that district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII). All three cases involved an employment termination.

6. Bostock v. Clayton Cty., Ga., No. 17-1618 (June

16, 2020).

7. Whittington v. Nordam Group Inc., 429 F.3d 986, 1000 (10th Cir. 2005).

8. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).

9. Anderson v. Phillips Petroleum Co., 861 F.2d 631, 637 (10th Cir. 1988).

10. Davoll v. Webb, 194 F.3d 1116, 1143 n.19 (10th Cir. 1999).

11. Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1176 (10th Cir. 2003).

12. Thornton v. Kaplan, 961 F.Supp. 1433, 1436 (D.Colo. 1996).

13. Davoll, 194 F.3d at 1144.

14. US Bureau of Labor Statistics, Economic News Release: Employer Costs for Employee Compensation Summary (Mar. 19, 2020).

15. Blim v. W. Elec. Co., 731 F.2d 1473, 1480 (10th Cir. 1984).

16. Hayes v. SkyWest Airlines, Inc., 2018 WL 4561266 at *7 (D.Colo. 2018).

17. Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1245 (10th Cir. 2000).

18. Payton-Huebner v. City of Roswell, 2002 WL 35649508 at *2 (D.N.M. 2002).

19. Thornton, 961 F.Supp. at 1441.

20. Tolan v. Levi Strauss & Co., 867 F.2d 467, 470 (8th Cir. 1989).

21. Fresquez v. BNSF Ry. Co., 2019 WL 5694243 at *12 (D.Colo. 2019).

22. Carter v. Sedgwick Cty., 929 F.2d 1501, 1505 (10th Cir. 1991).

23. Payton-Huebner, 2002 WL 35649508 at *3.

24. Hayes, 2018 WL 4561266 at *8.

25. Davoll, 194 F.3d at 1144.

26. Thornton, 961 F.Supp. at 1436.

27. Equal Emp’t Opportunity Comm’n v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980).

28. Leidel v. Ameripride Servs., Inc., 276 F.Supp.2d 1138, 1142 (D.Kan. 2003).

29. Equal Emp’t Opportunity Comm’n v.

RadioShack Corp., 2012 WL 6090283 at *4 (D.Colo. 2012).

30. Ford Motor Co. v. Equal Emp’t Opportunity Comm’n, 458 U.S. 219, 231 (1982).

31. Whatley v. Skaggs Cos., Inc., 707 F.2d 1129, 1138 (10th Cir. 1983).

32. Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990).

33. Sandia Corp., 639 F.2d at 627.

34. Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53-54 (2d Cir. 1998).

35. Hayes, 2018 WL 4561266 at *5.

36. Sandia Corp., 639 F.2d at 624.

37. Id. at 625.

38. Whatley, 707 F.2d at 1138.

39. Sandia Corp., 639 F.2d at 626.

40. Equal Emp’t Opportunity Comm’n v. Wyo. Ret. Sys., 771 F.2d 1425, 1431 (10th Cir. 1985).

41. Wise v. Olan Mills Inc. of Texas, 495 F.Supp.

257, 260 (D.Colo. 1980).

42. Id. 43. Ross v. Unified Sch. Dist. No. 231, Johnson

Cty., Kan., 1993 WL 62442 at *9 (D.Kan. 1993).

44. Davoll, 194 F.3d at 1144.

45. Buonanno v. AT&T Broadband, LLC, 313 F.Supp.2d 1069, 1083 (D.Colo. 2004).

46. Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 956 (10th Cir. 1980).

47. Kolb v. Goldring, Inc., 694 F.2d 869, 873 (1st Cir. 1982).

48. Davoll, 194 F.3d at 1144.

49. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 537 (1983) (citing Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 491 (1916)).

50. Hayes, 2018 WL 4561266 at *8.

51. Id. 52. The Second Circuit endorsed the use of a net discount rate of 2% in Buckley v. Reynolds Metals Co., 690 F.Supp. 211, 219 (S.D.N.Y. 1988).

53. Thornton, 961 F.Supp. at 1436.

54. Hull by Hull v. United States, 971 F.2d 1466, 1511-12 (10th Cir. 1992).

55. Fitzgerald, 624 F.2d at 956.

56. Greene, 210 F.3d at 1247. It may be that prejudgment interest and liquidated damages are not simultaneously available in ADEA cases, as in Fair Labor Standards Act cases, but it seems clear that prejudgment interest

is available in ADEA cases in the absence of liquidated damages. See Blim v. W. Elec. Co., Inc., 731 F.2d at 1479.

57. Equal Emp’t Opportunity Comm’n v. W. Trading Co., Inc., 291 F.R.D. 615, 621 (D.Colo. 2013).

58. Greene, 210 F.3d at 1247.

59. Reed v. Mineta, 438 F.3d 1063, 1066–67 (10th Cir. 2006).

60. W. Trading Co., Inc., 291 F.R.D. at 621.

61. Id. 62. Reed, 438 F.3d at 1067.

63. United States v. Burke, 504 U.S. 229 (1992).

64. Equal Emp’t Opportunity Comm’n v.

Beverage Distribs. Co., 780 F.3d 1018, 1023 (10th Cir. 2015).

65. Id. at 1024.

66. Sears v. Atchison, Topeka & Santa Fe Ry., Co., 749 F.2d 1451, 1456 (10th Cir. 1984).

67. Eshelman v. Agere Sys., Inc., 554 F.3d 426, 441 (3d Cir. 2009).

68. Equal Emp’t Opportunity Comm’n v. N. Star Hospitality, Inc., 777 F.3d 898, 904 (7th Cir. 2015).

69. Beverage Distribs. Co., 780 F.3d at 1024.

70. Smothers v. Solvay Chems., Inc., 2014 WL 12665809 at *7 (D.Wyo. 2014).

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FEATURE | TITLE LEGISLATIVE MATTERS

The CBA's 2020 Legislative Session in Review

BY A N DR E W W H I T E

This article provides an overview of the CBA’s legislative efforts during the Colorado General Assembly’s 2020 session.

T

he Colorado General Assembly adjourned on June 15 after an unprecedented and unpredictable year.

The legislature put its work on hold for 10 weeks due to public health concerns, faced a staggering 20% hole in its general fund tax revenues, adopted numerous measures to respond to the COVID-19 pandemic, and reached bipartisan consensus on law enforcement reforms. The 2020 session was without parallel in recent history.

2020 Session Highlights During the tumultuous 2020 session, the CBA actively worked on 27 legislative measures

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under consideration by the Colorado legislature.

Considering that the legislature shortened its 120-day calendar by 36 days and largely could not fund new programs, the CBA experienced many successes with our key priorities. But we encountered some mixed results and roadblocks along the way that will require work in future legislative sessions.

Session Successes ■ HB 20-1013: Specify Procedure Ratify Defective Corporate Actions. The CBA successfully proposed a statutory procedure for the ratification of defective corporate actions, which will continue

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to be governed by common law until the bill takes effect on September 14. The CBA was the main proponent of this bill, which Governor Polis signed on March 20.

■ SB 20-093: Consumer and Employee Dispute Resolution Fairness. The CBA opposed this bill, which sought to modify significantly how arbitrations are conducted in Colorado and to place additional requirements on the practice. The bill was defeated in committee on June 4.

■ HB 20-1200: Sunset Homeowners’ Association Information and Resource Center. The CBA successfully supported the five-year extension of the Home-

owners’ Association Information and Resource Center within the Department of Regulatory Affairs. This bill originally proposed an alternative dispute resolution process to be housed within the department, but legislators removed the expanded role late in the session out of budget concerns. The CBA supported the extension of the office and expects the sponsors to revisit a dispute resolution mechanism during the 2021 session. The legislature adopted the bill on June 11, and Governor Polis signed it on June 30.

■ HB 20-1096: Authorize Protected Series of Limited Liability Company. The CBA opposed efforts that would have allowed, under Colorado law, the creation of a protected series of a series limited liability company (series LLC). A series LLC is a type of LLC that, in addition to traditional vertical liability shields, provides horizontal liability shields across multiple “series,” each of which is theoretically protected from liabilities arising from the other series. Based on discussions with proponents and the sponsor, the CBA anticipates the need to address this matter in a future legislative session for series LLCs that currently operate in this state but are formed under the laws of another jurisdiction. The bill was defeated in committee on February 27.

Mixed Results and Continuing Efforts The CBA met with mixed results on SB 20-096, which authorizes Colorado-licensed notaries to perform notarial acts remotely. Legislators introduced the bill early in the legislative session, but in the wake of the state’s response to the COVID-19 pandemic, the Secretary of State implemented emergency rules authorizing remote notarization on a temporary basis. The CBA provided critical guidance to the offices of both the Governor and the Secretary of State during the issuance of executive orders and the promulgation of the remote notary emergency rules. Adoption of SB 20-096 will largely codify the process currently allowed under the emergency rules. To prevent gaps, the Secretary of State is expected to continue

following the current emergency rules on a temporary basis until final rules called for by the bill are adopted. While the CBA’s efforts to amend several parts of the bill were successful, we continue to have concerns about the bill’s shortcomings in privacy protections. The CBA and lawmakers committed to work on a privacy protection bill for introduction in a future legislative session. The legislature passed SB 20-096, and Governor Polis signed the bill on June 26.

time, decision-making, child support, and maintenance. Unfortunately, timing was not our friend. While legislative leadership considered the CBA’s request, the legislature temporarily adjourned for 10 weeks due to the COVID-19 pandemic. When the legislature reconvened in late May, legislative leadership did not consider the proposal of sufficient urgency to be introduced during the limited days remaining in its 2020 session. The CBA will explore resubmitting the bill for the 2021 legislative session.

“

The Session’s Unprecedented Delay The CBA’s 2020 legislative efforts were overshadowed by the extraordinary events of 2020.

Due to the COVID-19 pandemic, the legislature paused its substantive work for much of the spring. In a typical year, the Colorado legislature wraps up its work by the first week of May. The year 2020 was anything but typical.

On March 11, Governor Polis declared a disaster emergency for Colorado due to the COVID-19 pandemic by signing EO D 2020-003, which he has extended several times through the spring and into summer. Several days later, on March 14, the legislature temporarily adjourned out of concern for public health and challenges for legislators and the public to socially distance at the Capitol. The temporary adjournment set in motion a series of unprecedented actions for the legislature. When they adjourned, legislators were uncertain whether they could safely reconvene before their mandated adjournment date of May 6, or whether they were constitutionally authorized to declare a crisis and postpone their May 6 adjournment date to later in the year.

On its last day of business before temporary adjournment, the legislature invoked Joint Rule 44(g), adopted during the 2009 H1N1 pandemic, which allows for suspension of the legislature during a public health crisis. Because the rule had never been triggered, the legislature also formally requested an opinion from the Colorado Supreme Court as to whether the General Assembly may constitutionally suspend its 120-day calendar per the joint legislative rule.

The Court accepted the legislature’s request for interrogatories, and legislators filed their briefs with the Court, splitting along party lines.

The CBA provided critical guidance to the offices of both the Governor and the Secretary of State during the issuance of executive orders and the promulgation of the remote notary emergency rules.

” The CBA fell short in our efforts to address the effects of the Colorado Supreme Court’s January 2020 opinion in In re Parental Responsibilities of W.C.1 The Court released the opinion after the legislature convened, so the CBA sought special permission to introduce a bill that would provide the trial court continuing jurisdiction during an appeal over parenting

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On April 1, the Colorado Supreme Court issued a 4–3 decision stating that Joint Rule 44(g) is constitutional and the General Assembly’s 120day session need not run consecutively.2 The legislature reconvened on May 26, meeting for a fast-paced three-week session that adjourned on June 15.

During the legislature’s temporary adjournment, the CBA continued its advocacy with state decision-makers, responding to the effects of the COVID-19 pandemic and associated economic shutdown. As discussed above, the CBA played a pivotal role in the adoption of emergency remote notary rules.

The CBA also successfully advocated for remote witnessing rules implemented by the judiciary, ensured that attorneys were deemed “essential” workers by the Department of Public Health and Environment’s March 25 Public Health Order, and created and implemented a COVID-19 addendum for the standard real estate contract form.

Budget Shortfalls, Law Enforcement Reform, and the Pandemic Response When legislators reconvened, they immediately faced multiple crises in rapid succession: a significant decline in state tax revenues, calls for law enforcement reform, the state response to the COVID-19 pandemic, and Coloradans facing personal economic hardships. To reduce the potential spread of COVID-19 during the remaining session, lawmakers voluntarily reduced the number of days they convened and reprioritized bills left on their calendar, quickly defeating over 300 bills in their first days back at work to make room on the calendar for new legislative priorities.

One of the most significant issues the legislature faced was the unprecedented and dramatic plunge in state revenues for the fiscal year starting July 1—over $3 billion of the $12 billion state general fund. The Joint Budget Committee (JBC) began meeting in early May to prepare the budget to present to the legislature.

Budget cuts spared no state department or agency, and the legislature adopted the JBC’s proposed budget largely unamended.

State lawmakers balanced the state budget through a series of dramatic choices by:

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■ reducing by 1% certain medical reimbursement rates, largely affecting Medicaid providers; ■ cutting $550 million from K–12 education; ■ cutting state support to higher education by 58%, and restricting increases in tuition to 3%; ■ cutting all state personnel costs by 5%, across the board; ■ suspending the Senior Homestead Property Tax exemption; ■ diverting $50 million earmarked for transportation projects; ■ eliminating a $225 million payment to the state employee retirement system; and ■ transferring millions of dollars from multiple cash funds to shore up the general fund, including marijuana tax revenues, oil and gas severance tax revenues, and funds earmarked for K–12 school construction.

With less than two weeks remaining in the session, legislators took action to address law enforcement abuses, spurred by shocking images of recent civilian deaths at the hands of law enforcement. Buoyed by overwhelming bipartisan support (32–1 in the Senate and 52–13 in the House of Representatives), Governor Polis signed SB 20-217 into law on June 19. The CBA publicly supported the bill but encouraged the legislature to address issues such as inapplicable statutory immunities referenced in the bill and protected health information. The CBA anticipates that lawmakers will continue to refine the statute in future legislative sessions. The new statute creates statewide standards on the use of body-worn cameras, makes mandatory the revocation of peace officer certification in certain circumstances, removes qualified immunity for officers, requires law enforcement agencies to indemnify officers acting in good faith, limits

SOLACE is Here to Help SOLACE offers crisis support to judges, lawyers, paralegals, legal assistants, law firm and court employees and their family members. When a legal professional’s work is impacted by a potentially life-altering event such as serious illness or injury, SOLACE’s convenient and confidential system will match them with volunteers who can provide assistance.

Visit

cobar.org/SOLACE

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Contact

solace@cobar.org

OTHER LEGISLATION OF NOTE BILL NUMBER

BILL TITLE

Proposed

Concerning the Exemption of COVID-19 Economic Stimulus Payments from Execution, Levy, Attachment, Offset, Garnishment, or Other Legal Process

HB 20-1009

CBA POSITION

FINAL ACTION

NOTES

Support

Not introduced

CBA proposed this legislation, but legislative leadership introduced SB 20-211, a more aggressive debtor protection bill

Suppressing Court Records of Eviction Proceedings

Amend

Governor signed March 20

CBA unsuccessfully requested amendment to limit court record suppression to residential tenants only

HB 20-1062

Colorado Student Free Expression Law

Monitor

Governor signed March 24

HB 20-1079

Juveniles on Colorado Sex Offender Registry

Support

Deemed lost, June 16, House Appropriations

HB 20-1106

Limit Public Inspection of Internal Affairs Report

Oppose

Defeated, February 1, House Judiciary

HB 20-1263

Eliminate Sub-Minimum Wage Employment

Support

Deemed lost, June 16, House Appropriations

Required over $150,000 in general fund expenditures

HB 20-1270

One-Parent Consent for Behavioral Health Services

Amend

Deemed lost, May 28, Senate floor

CBA was successful in amending to address concerns

HB 20-1291

Uniform Collaborative Law Act

Amend

Defeated, May 26, Senate Judiciary

Defeated to clear the legislative calendar in the final weeks of session

HB 20-1292

Uniform Parentage Act

Oppose

Defeated, March 12, House Judiciary

HB 20-1307

Gay Panic or Transgender Panic Defense

Support

Defeated, May 26, Senate Judiciary

Bill reintroduced as SB 20-221

HB 20-1333

Homeowners’ Association Transparency, Responsibility, Competency

Oppose

Defeated, May 27, House Transportation and Local Government

Defeated to clear the legislative calendar in the final weeks of session

SB 20-083

Prohibit Courthouse Civil Arrest

Support

Governor signed March 23

SB 20-100

Repeal of the Death Penalty

Support

Governor signed March 23

SB 20-108

Concerning a Prohibition on a Landlord Engaging in Certain Activities Related to a Tenant’s Citizenship Status

Support

Defeated, May 27, House Business

Reintroduced as SB 20-224; CBA worked with sponsors to amend, then support

SB 20-129

Protection of Individuals Subject to a Fiduciary

Support

Governor signed July 10

CBA opposed introduced version, worked with sponsors to successfully amend

SB 20-165

Honoring Carrie Ann Lucas

Support

Defeated, May 27, House Public Health

Defeated to clear the legislative calendar in the final weeks of session

SB 20-221

Concerning Banning the Use of a Panic Defense Unless a Party can Show Its Relevance to the Court

Support

Governor signed July 13

See HB 20-1307

SB 20-224

Concerning a Prohibition on a Landlord Engaging in Certain Activities Related to a Tenant’s Citizenship Status

None

Governor signed June 30

See SB 20-108; bill introduced and passed in three days; CBA did not have time to consider

Required more than $300,000 in general fund expenditures

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the acceptable use of force by law enforcement, and requires the collection of statewide data.

Finally, to address the COVID-19 pandemic and related economic downturn, the legislature passed an extensive package of bills. For more information on the following legislation, please visit the Colorado General Assembly website, https://leg.colorado.gov.

■ SB 20-205: Sick Leave for Employees.

This bill requires employers to provide employees who normally work 40 or more hours a week with at least 80 hours of additional paid sick leave during a public health emergency. At other times, employers are to provide one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours per year for all employees. Governor Polis signed the bill on July 14.

■ SB 20-207:​Unemployment Insurance.

This bill amends the Colorado Employment Security Act to address public health emergencies, increase benefit payments, and increase “chargeable wages.” The bill also requires a study of unemployment assistance. Governor Polis signed the bill on July 14.

■ SB 20-211:​Limitations on Extraordinary Collection Actions. This bill allows debtors experiencing a financial hardship related to the COVID-19 pandemic to suspend debt collection by their creditors through November 1, 2020. Governor Polis signed the bill on June 29.

■ SB 20-222:​CARES Act Money Small Business Grant Program. Financed with $20 million in federal CARES Act funding, this bill creates the Small Business COVID-19 grant program in the Colorado Office of Economic Development and International Trade to assist small businesses facing COVID-19 pandemic economic hardship.

Governor Polis signed the bill on June 23.

■ HB 20-1410:​COVID-19-Related Housing Assistance. Financed with $20 million in federal CARES Act funding, this bill provides additional funding to the Housing Development Grant Fund in the Division of Housing. The division may use this money to provide rental assistance, residential

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■

■

■

■

■

mortgage assistance, and guidance on how to access additional housing services to those impacted by the COVID-19 pandemic. The CBA supported HB 20-1410.

Governor Polis signed the bill on June 22.

HB 20-1411:​COVID-19 Funds Allocation for Behavioral Health. Financed with $20 million in federal CARES Act funding, this bill allocates $15 million in CARES Act funding to state behavioral health programs. Governor Polis signed the bill on June 22.

HB 20-1412:​ COVID-19 Utility Bill Payment-Related Assistance. Financed with $10 million in federal CARES Act funding, this bill directs the Colorado Energy Office to provide direct utility bill payment assistance to households facing economic hardship due to the COVID-19 pandemic. Governor Polis signed the bill on June 22.

HB 20-1413:​ Small Business Recovery Loan Program Premium Tax Credits. This bill creates the Small Business Recovery Loan Program within the Colorado Department of the Treasury and allows the Treasurer to issue insurance premium tax credits to insurance companies that incur premium tax liability. The face value of the tax credits may not exceed $68 million through June 2022. Governor Polis signed the bill on June 23.

HB 20-1414:​Price Gouge Amid Disaster Deceptive Trade Practice. This bill creates a deceptive trade practice for price gouging during a disaster period, enforceable by the Attorney General or a district attorney’s office with jurisdiction where the act occurred. Governor Polis signed the bill on July 14.

HB 20-1415​: Whistleblower Protection Public Health Emergencies. This bill prohibits employers (including those that use independent contractors) from discriminating, retaliating, or taking adverse action against any worker who raises concerns about workplace health and safety practices or who voluntarily wears personal protective equipment.

Governor Polis signed the bill on July 11.

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■ HB 20-1425: Hospital Patient Visitation Rights During COVID-19. This bill entitles a patient receiving inpatient care at a hospital to designate one individual with visitation privileges. Governor Polis signed the bill on June 29.

Other Legislation of Note In addition to the bills discussed above, the CBA worked with lawmakers and stakeholders on the bills listed in the accompanying chart. For complete information on these and any other bills that were introduced, visit the Colorado General Assembly website, https://leg.colorado. gov.

Conclusion In spite of the unprecedented events that impacted the Colorado General Assembly’s 2020 legislative session, the legislature managed to conduct its business. While it was unable to consider many bills, the legislature passed some significant measures, including those required to respond to the national crises. The CBA worked throughout the session to support these efforts, and while it achieved success, unfinished business remains for future sessions.

Andrew White is the CBA director of legislative relations. Readers are encouraged to contact him to receive periodic email updates during the legislative session or any time they would like more information about bills or other legislative matters that may relate to or affect the legal profession and the practice of law—(303) 824-5309, awhite@cobar.org.

NOTE S

1. In re Parental Responsibilities of W.C., 2020 CO 2.

2. In re Interrogatory on House Joint Resolution 20-1006, 2020 CO 23.

FEATURE | PROFESSIONAL CONDUCT AND LEGAL ETHICS

Prohibited

by Rule Sexual Harassment as Attorney Misconduct

BY JO SE PH G . M IC H A E L S

This article addresses the recent adoption of Colorado Rule of Professional Conduct 8.4(i), which prohibits lawyers from knowingly engaging in conduct that constitutes sexual harassment in connection with professional activities. The article discusses the rule’s prohibitions and scope, addresses prior cases that considered sexual harassment as lawyer misconduct, and considers a lurking constitutional concern.

L

awyers, by virtue of their membership in the legal profession and as officers of the judicial system, have a special responsibility to pursue justice and to conduct themselves as representatives of the profession to the greater public.1 In this capacity, a lawyer’s conduct “should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.”2 A lawyer should not “use the law’s procedures” to “harass or intimidate”; rather, lawyers should demonstrate respect for the legal system.3 As ambassadors to the community, lawyers also should promote the public’s “confidence in the rule of law[.]”4

In September 2019, the Colorado Supreme Court amended Rule 8.4 of the Colorado Rules of Professional Conduct (Colo. RPC or the Rules) to add an explicit prohibition against sexual harassment by lawyers.5 The prohibition, while far from controversial as a prophylactic—for who would argue that sexual harassment is either professional or appropriate?—still carries potential pitfalls. Nevertheless, new Rule 8.4(i) provides clear notice proscribing the behavior, as well as necessary clarification and consolidation of existing rules that had been interpreted, albeit as an imperfect patchwork, to address sexual harassment before the rule’s implementation.

The adoption of Rule 8.4(i) not only is consistent with the aspirational principles of being a lawyer but is also morally, ethically, and professionally required by them.6 This article discusses the new rule, reviews cases that had addressed sexual harassment before Rule 8.4(i) went into effect, gauges those cases’ continuing vitality, and concludes by addressing First Amendment concerns raised by the rule’s language.

The Addition of Rule 8.4(i) The Colorado Supreme Court adopted Rule 8.4(i) in the midst of a nationwide reckoning with sexual harassment and misconduct by men

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in positions of authority exerting power over younger, predominantly female, subordinates who had minimal recourse. These men include disgraced movie mogul Harvey Weinstein,7 former Ninth Circuit Court of Appeals Judge Alex Kozinski,8 former Today Show host Matt Lauer,9 and former Alabama Supreme Court Chief Justice and twice-unsuccessful US Senate candidate Roy Moore,10 among many others.11 The public and social media outcry rapidly gained steam, culminating in the worldwide #MeToo movement. Indeed, one of the #MeToo movement’s biggest effects “has been to show Americans and people around the world how widespread sexual harassment, assault, and other misconduct really [is].”12 Even the United States Supreme Court long ago recognized the “persistent problem” that the “hostile environment [of] sexual harassment” creates.13 Against this backdrop, the Colorado Supreme Court considered and adopted Rule 8.4(i), a rule designed to prohibit sexual harassment in the legal profession.14 The new rule provides that it is “professional misconduct for a lawyer to engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.”15 Rule 8.4(i) has two noteworthy components: (1) the language of the rule itself; and (2) its accompanying Comment [5A], which further defines “sexual harassment” and also addresses “professional activities”—in language that potentially both clarifies and muddies the scope of the rule.16 The comment first provides that “[s] exual harassment may include, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome.”17 The comment thus focuses on the unwelcome nature of the behavior and, implicitly, the uneven power dynamic involved.

Additionally, the comment defines “sexual harassment” in wording generally consistent with federal and state law.18 Next, Comment [5A] references the “substantive law of employment discrimination, including anti-harassment statutes, regulations, and case law” as providing helpful guidance, but not the exclusive bases, for enforcing new Rule

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“

Rule 8.4(i) has two noteworthy components: (1) the language of the rule itself; and (2) its accompanying Comment [5A], which further defines ‘sexual harassment’ and also addresses ‘professional activities’—in language that potentially both clarifies and muddies the scope of the rule.

” 8.4(i). Doing so necessarily steers enforcement of the rule, as well as notice of its prohibitions, to established law originating from these authorities.19 In this respect, the comment effectively functions as a limiting construction.

Finally, the comment addresses “professional activities,” which, it explains, “are not limited to those that occur in a client-lawyer relationship.”20 This explanation clarifies that professional activities are broader than a limited business

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or client setting, but it does not identify the outer reaches of “professional activities.”21 The comment, however, appears to limit Rule 8.4(i)’s prohibition to lawyers’ actions in their capacity as a lawyer, exempting actions in the lawyer’s everyday private life.

Regardless, Rule 8.4(i) and Comment [5A] have to be read in the overall context of the Preamble and Scope to the Colo. RPC, which state that the Rules apply to “practicing lawyers even when they are acting in a nonprofessional capacity.” 22 Rule 8.4(i), however, limits the prohibition on sexual harassment to a lawyer’s involvement in “professional activities.”23 And while Comment [5A] confirms that professional activities extend beyond those solely in the lawyer-client setting, it does not explain when a lawyer’s activity ceases to be a “professional activity.” Yet, nothing in Comment [5A] suggests that Rule 8.4(i) applies outside of the professional realm. In this respect, Rule 8.4(i) appears to impose a narrower prohibition than the Preamble and Scope would impose. This construction makes sense because if Rule 8.4(i) were to apply to a lawyer at all times, in all circumstances, it potentially could apply even when a lawyer acts as a private citizen in everyday life, which very likely would trigger constitutional implications.

Clearly, Rule 8.4(i) targets sexual harassment in a narrower context: as matter of professional regulation and as related to the practice of law.

ABA Rule 8.4(g) as a Model?

In 2016, the American Bar Association approved ABA Model Rule 8.4(g), which prohibits “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

Nevertheless, the ABA Rule “does not preclude legitimate advice or advocacy consistent with the [ABA] Rules.”24 Colorado did not—and still largely does not—have a rule analogous to ABA Model Rule 8.4(g); rather, Colorado’s Rule 8.4 contains Comment [3], which somewhat tracks the prohibitions in ABA Model Rule 8.4(g), albeit without expressly addressing “harassment or

discrimination” as described in the ABA rule.25 Colo. RPC 8.4 Comment [3] provides: A lawyer who, in the course of representing a client, knowingly manifests by word or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates [Colo. RPC 8.4](g) and also may violate [Colo. RPC 8.4](d). Legitimate advocacy respecting the foregoing factors does not violate paragraphs (d) or (g).26 In explicitly referencing Rules 8.4(d) and 8.4(g), Colorado’s Comment [3] indicates that the conduct described would be “prejudicial to the administration of justice,” per Rule 8.4(d), or would engender bias against a person for the delineated characteristics, per Rule 8.4(g).27 But neither those rules nor Comment [3] to Rule 8.4 squarely address sexual harassment in professional settings, let alone explicitly prohibit it. And Rule 8.4(g) expressly limits itself to conduct “in the representation of a client,”28 meaning it does not reach all “professional activities” in which a lawyer may appear as a representative of the profession.

In contrast, ABA Model Rule 8.4(g) prohibits “harassment or discrimination” as it occurs more broadly as “related to the practice of law.”

This language is more specific to the question of “harassment” “on the basis of sex,” and it more widely casts its net over professional activities.29 Specifically, Comment [4] to ABA Model Rule 8.4 defines “conduct related to the practice of law” as including: ■ representing clients; ■ interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; ■ operating or managing a law firm or law practice; and ■ participating in bar association, business, or social activities in connection with the practice of law.30 While the first three bullet points all generally fall within the “representation of a client,”31 the last point is instructive for Colo. RPC 8.4(i) and its prohibition on sexual harassment “in connection with the lawyer’s professional activities.” Indeed, participating in bar association, business, or social activities encompasses not just client

representation, but also business development; employer-employee relationships within law firms and professional relationships between law firms; the professional law school setting, including professor-student, employer-student, and administrator-student interactions; social events where lawyers are present as part of their professional affiliation or in connection with their practice of law; lawyers’ roles as advisors, counselors, or lobbyists; and bar activities32—basically any time the lawyer is “wearing a lawyer hat.”33 In short, then, Colo. RPC 8.4(i) draws on ABA Model Rule 8.4(g), but it neither ratifies ABA Model Rule 8.4(g) nor covers the same ground.

Rather, Colo. RPC 8.4(i) focuses exclusively on “sexual harassment,” while ABA Model Rule 8.4(g) contains much broader prohibitions on “harassment or discrimination” generally and as relevant to the enumerated characteristics.

Additionally, Colo. RPC 8.4(i) explicitly references developed canons of law to help define “sexual harassment.”

Further, Colo. RPC 8.4(i) does not retread ground already directly covered by Colo.

RPC 8.4(d) or 8.4(g). Rather, it encompasses conduct far wider than that involved in the “representation of a client.” Thus, before Rule

8.4(i) was adopted, while Colorado’s Rules arguably addressed sexual harassment by a lawyer against clients through Colo. RPC 1.8(j) and 8.4(a), “[s]exual harassment in non-client contexts c[ould] be difficult to prosecute.”34 Now, Rule 8.4(i) directly prohibits “sexual harassment,” rather than just conduct exhibiting bias, against any person. To these points, Attorney Regulation Counsel Jessica Yates testified at the public hearing that adopting Rule 8.4(i) conveys clear “notice” to lawyers that sexual harassment is prohibited.35 In contrast, Rules 8.4(d) and 8.4(g) were “awkward” avenues to pursue sexual harassment claims.36 Finally, and important for purposes of its constitutional analysis, Rule 8.4(i) carries a mens rea component: It applies if the lawyer “knows or reasonably should know” that the conduct constitutes sexual harassment.37 Pre-Rule 8.4(i) Cases Addressing Sexual Harassment There has yet to be a disciplinary proceeding under Rule 8.4(i) resulting in a published decision. Still, Colorado has addressed sexual harassment both under the current Rules and under the predecessor Disciplinary Rules (DR).38 In Colorado’s leading disciplinary case on sexual harassment by a lawyer, People v. Lowery,

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the Colorado Supreme Court suspended a lawyer for a year and a day following complaints from three female victims who were subordinate employees of the male respondent’s law firm.39 Each victim alleged a pattern of “sexually provocative conduct,” “numerous lewd, sexually graphic remarks,” and unwanted touching.40 The respondent fired one victim who refused his advances; the other two quit.41 The Court compared the conduct to cases where lawyers had been disciplined for sexual misconduct with a client,42 and it reasoned that “a pattern of sexual misconduct with employees by a lawyer [was not] any less damaging to the legal profession than a lawyer’s sexual exploitation of a client.”43 The Court emphasized that the “power a lawyer holds over the sexually exploited employee derives from the lawyer’s license to practice law.”44 Finally, it determined that the misconduct was aggravated because the “victims depended on the respondent for employment [and thus] were especially vulnerable.”45 Lowery, however, was decided under the predecessor DRs, not under the current Colo.

RPC. The difference is important. At issue in Lowery was DR 1-102(A)(6), which prohibited a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice, as well as CRCP 241.6(3), which relates to misconduct implicating honesty, justice, or morality.46 The closest analog to the framework of DR 1-102(A)(6) and CRCP 241.6(3) under the modern Rules is probably Rule 8.4(h), at least in terms of language similarity. Rule 8.4(h) states that it is professional misconduct to “engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer’s fitness to practice law.”47 Rule 8.4(h) thus requires evidence that (1) the misconduct “directly, intentionally, and wrongfully harms others” and (2) the action also adversely reflects on the lawyer’s fitness as a representative of the profession. In other words, establishing a violation requires proof of both intent and actual harm.48 While not an insurmountable bar, it is a high one.

Rule 8.4(i) removes the actual (subjective) harm requirement and substitutes a reasonable (objective) person standard: what the lawyer

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“

Rule 8.4(i) removes the actual (subjective) harm requirement and substitutes a reasonable (objective) person standard: what the lawyer ‘knows or reasonably should know constitutes sexual harassment[.]’

”

“knows or reasonably should know constitutes sexual harassment[.]” The focus is not on what harm the victim actually experienced.49 Additionally, Rule 8.4(i) removes the need to show intent and replaces the mental state with the less-stringent “knows or reasonably should know” standard. This, too, lessens the proof burden. Consequently, while Rule 8.4(i) functionally codified the Lowery outcome, it also may have rendered Lowery’s reasoning obsolete.50 In People v. Rosen, the Hearing Board flatly stated that “[s]exual misconduct is prohibited

by Colo. RPC 8.4(h).”51 But in doing so, the Rosen Hearing Board cited cases that relied on the same Disciplinary Rule, DR1-102(A) (6), that governed Lowery; it did not address the differences in Rule 8.4(h) or whether any other Rule was an appropriate vehicle for prohibiting the conduct.52 At issue in Rosen was an allegation that the respondent had repeatedly

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commented on a client’s appearance, touched or stroked her leg, and whispered seductively in her ear.53 Given the ill-fitting Rules and the conflicting evidence, the Hearing Board found no violation.54 This case is mostly unremarkable apart from its general suggestion that Rule 8.4(h) covers sexual misconduct and for illustrating that sexually harassing behavior is difficult to prove in the absence of a rule like Rule 8.4(i).

Finally, in People v. Meier, the Colorado Supreme Court publicly censured a lawyer for violating Rule 8.4(h) when he asked sexually inappropriate, offensive questions to a prospective, vulnerable client considering divorce.55 Those questions included asking when she and her husband last had intercourse, “what her breast size was, and whether she was ‘desirable’” to advising her to “keep her legs crossed so she would not have any more pesky kids.”56 The Hearing Board in Meier found the comments “inappropriate, harmful, offensive, harassing[,] and sexually abusive.”57 The Supreme Court agreed that any lawyer “asking a prospective and obviously vulnerable divorce client about the size of her breasts would ‘adversely reflect[] on the lawyer’s fitness to practice’” under Rule 8.4(h).58 The Court also acknowledged that DR1-102(A)(6) was the “predecessor” to Rule 8.4(h).59 But Meier is limited to the attorney-client setting, not “professional activities,” and it applied a less direct prohibition on sexual harassment than Rule 8.4(i).

In sum, prior cases generally used the broad language of Rule 8.4(h) (or its DR predecessor) and its prohibition on acts that “directly, intentionally, and wrongfully harm[] others” and “adversely reflect” on the lawyer’s fitness to practice to prohibit sexual harassment. But, as Attorney Regulation Counsel Yates explained, this is an awkward and ill-fitting mechanism to reach sexual harassment complaints, particularly those that do not involve clients.

First Amendment Concerns There remains one lingering conundrum, that of Rule 8.4(i)’s constitutionality—specifically, whether it would withstand a First Amendment overbreadth challenge. While this article cannot resolve that question, the following discussion frames the issue for further consideration.

In a letter opposing the addition of Rule 8.4(i), the First Amendment Lawyers Association argued that the proposed rule would be an unconstitutional violation of the First Amendment. 60 In essence, the commenter argued that the rule “punishes and restricts speech” by prohibiting sexual harassment because there is no limiting principle to guide application or provide notice when lawyers’ “use of language might run afoul of the rule.”61 This concern, however, does not withstand scrutiny for three reasons.

First, case law suggests that Rule 8.4(i) likely is sufficiently narrow to pass constitutional muster. For example, in People v. Graves, the Colorado Supreme Court addressed a First Amendment challenge to the public indecency statute.62 That statute prohibited “a lewd fondling or caress of the body of another person” in a “‘public place’ or where the conduct may reasonably be expected to be viewed by members of the public.”63 In construing the language at issue, the Court ruled that the statute did “not proscribe innocuous public displays of affection” or even fondling or caresses; rather, it proscribed lewd displays—that is, “overtly sexualized activity in public.”64 The Court noted that while “lewd” was not defined by statute, its common definition was readily understood by people of ordinary intelligence.65 Recognizing that “[s]exual conduct in public is not constitutionally protected expressive activity,” the Court concluded that the statute was not fatally overbroad, even if it potentially implicated some expressive conduct subject to First Amendment protections.66 Similarly, “sexual harassment” is a phrase capable of being understood by “people of ordinary intelligence”—a category of baseline intelligence that certainly must include practicing lawyers. Sexual harassment is commonly defined as “uninvited and unwelcome verbal or physical behavior of a sexual nature especially by a person in authority toward a subordinate.”67 Rule 8.4(i) does not prohibit “innocuous conduct”;68 it prohibits sexually harassing conduct a lawyer knows or reasonably should know is unwelcome. In no way is sexual harassment a constitutionally protected activity, and even if some protected First Amendment speech may

fall within its scope, that does not automatically invalidate Rule 8.4(i) or its prohibition.69 In People v. Baer, the Supreme Court addressed a First Amendment challenge to the harassment-by-stalking statute.70 The Court held that because the statute required a communication that “further[ed], promote[d], or advance[d] a credible threat,” it did not violate the First Amendment’s free speech protection.71 In that respect, the statutory prohibition was sufficiently tailored to provide a limiting construction to exempt protected speech from its ambit.

On the other hand, in People in the Interest of R.C., the Colorado Court of Appeals held that a male juvenile’s Snapchat drawing of a penis on another male juvenile’s face amounted to free speech protected by the First Amendment, because the image would not incite imminent violence.72 Consequently, the juvenile’s adjudication for disorderly conduct could not stand, since the statute prohibited only “fighting words.”73 Like the statute at issue in Baer, Rule 8.4(i) does not appear to “sweep so comprehensively as to include within its proscriptions constitutionally protected speech.”74 Nor does it implicate the “fighting words” concern at issue in R.C. And, as discussed below, Rule 8.4(i)’s scienter requirement and accompanying Comment [5A] defining “sexual harassment” further narrow the behavior to which the rule’s prohibitions apply, consistent with the commonly understood meaning of “sexual harassment.” Regardless, “[e]very medium of expression presents special First Amendment problems which must be examined in the light of the circumstances which are interwoven with the speech in issue”75—that is, on a case-by-case basis. In this respect, a party litigating the issue can explain how the rule is “narrowly tailored,”76 even if there exists an opposing argument regarding the rule’s breadth.

Second, Rule 8.4(i) itself has limiting language, which prevents overbroad or limitless application. Specifically, the scienter requirement that the lawyer “knows or reasonably should know” that the conduct “constitutes sexual harassment” means the lawyer must generally be aware that the speech is not protected, but rather causes a specific type of harm. This promotes the idea that Rule 8.4(i) cannot reach

constitutionally protected speech, such as the discussion of ideas or the expression of beliefs.

But it also allows for a defense regarding what the lawyer knew or should have known.

Third, Comment [5A] further winnows out protected speech.77 It specifically requires that the sexually harassing conduct include behavior that “a reasonable person would perceive as unwelcome”78—that is, a communication that would “further, promote, or advance” the unwelcome sexual remarks.79 Or, as the Supreme Court recently recognized, “words matter. But so does context.”80 In short, these considerations suggest that Rule 8.4(i) is properly tailored to avoid offending the First Amendment, even if arguments to the contrary exist.81 Conclusion Rule 8.4(i) redresses a gap in the Rules by directly and expressly prohibiting sexual harassment in the practice of law. The rule provides clear notice and largely codifies prior cases that had considered sexually harassing behavior. Rule 8.4(i) also reflects a societal and legal trend toward strengthening prohibitions against sexually inappropriate behavior, particularly in the workplace. While Rule 8.4(i) may be susceptible to First Amendment objections, the rule’s reference to established regulations and jurisprudence, as well as its narrowly tailored language, mitigate this concern. Of course, only time will tell whether these factors ensure the rule’s constitutionality.

Joseph G. Michaels is a senior assistant attorney general in the Criminal Appeals Section of the Colorado Attorney General’s Office—joseph. michaels@coag.gov. The views expressed in this article are the author's own and do not reflect those of the Colorado Attorney General.

Coordinating Editor: Steve G. Masciocchi, smasciocchi@hollandhart.com NOTES

1. See Colo. RPC Preamble and Scope [1], [5].

2. Colo. RPC Preamble and Scope [5].

3. Id. 4. Colo. RPC Preamble and Scope [6].

5. Colo. RPC 8.4(i). See Rule Change 2019(14),

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https://www.courts.state.co.us/userfiles/ file/Court_Probation/Supreme_Court/Rule_ Changes/2019/Rule%20Change%202019%20 (14).pdf.

6. Colo. RPC Preamble and Scope [16] (stating that the Rules reflect “moral and ethical considerations that should inform a lawyer”).

7. Levenson et al., “Harvey Weinstein sentenced to 23 years in prison after addressing his accusers in court,” CNN (Mar. 11, 2020), https:// www.cnn.com/2020/03/11/us/harvey-weinsteinsentence/index.html.

8. Donlan, “9th Circuit Judge Alex Kozinski steps down after accusations of sexual misconduct,” L.A. Times (Dec. 18, 2017), https://www.latimes. com/politics/la-pol-ca-judge-alex-kozinski20171218-story.html. Over a dozen of his former clerks and subordinates brought forth allegations of sexual harassment. Id. 9. Gabler et al., “NBC Fires Matt Lauer, the Face of ‘Today,’” N.Y. Times (Nov. 29, 2017) (noting multiple complaints of sexual harassment and abuse levied against Lauer amid the “fast-moving national reckoning over sexual harassment in the workplace”), https://www. nytimes.com/2017/11/29/business/media/nbcmatt-lauer.html.

10. Martin and Stolberg, “Roy Moore Is Accused of Sexual Misconduct by a Fifth Woman,” N.Y. Times (Nov. 13, 2017), https://www.nytimes. com/2017/11/13/us/politics/roy-moore-alabamasenate.html. The allegations against Moore included sexual assault against minors and that Moore had warned a victim “no one will believe you.” Id. 11. Indeed, the allegations, judicial proceedings, and ultimate verdict against Weinstein have prompted thousands of victims to share their stories. See Schmidt, “#MeToo: Harvey Weinstein case moves thousands to tell their own stories of abuse, break silence,” Wash. Post (Oct. 16, 2017), https://www.washingtonpost. com/news/morning-mix/wp/2017/10/16/ me-too-alyssa-milano-urged-assault-victims-totweet-in-solidarity-the-response-was-massive.

12. North, “7 Positive Changes that have come from the #MeToo Movement,” Vox (Oct. 4, 2019), https://www.vox.com/ identities/2019/10/4/20852639/me-toomovement-sexual-harassment-law-2019.

13. Faragher v. City of Boca Raton, 524 U.S. 775, 798 (1998).

14. The Court received multiple written comments in favor of adding Rule 8.4(i), and one voluminous comment opposing the rule on constitutional grounds that it was vague and violated the First Amendment. See generally Written Comments, Notice of Public Hearing and Request for Comments, Rules Governing Professional Conduct, Rule 8.4, https://web.archive.org/web/20200305174721/ https:/www.courts.state.co.us/userfiles/ file/Court_Probation/Supreme_Court/ Rule_Changes/Public%20Hearings/ September%2018,%202019/combined%20 for%20web%20posting%20-%20size%20 reduced.pdf (hereinafter Written Comments).

The Court also heard testimony universally in support of the rule at a public hearing. See

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Public Hearing—Rules of Professional Conduct, Rule 8.4, Before the Colorado Supreme Court (Sept. 18, 2019), https://cojudicial.ompnetwork. org/embed/sessions/111703/public-hearing-onrule-8-4 (hereinafter Public Hearing). Several commenters advocated both in writing and at the hearing that the proposed rule did not go far enough.

15. Colo. RPC 8.4(i). A “reckless state of mind” is “equivalent to ‘knowing’ for disciplinary purposes.” In the Matter of Egbune, 971 P.2d 1065, 1069 (Colo. 1999) (citing People v. Small, 962 P.2d 258, 260 (Colo. 1998)). See also Colo.

RPC 1.0, cmt. [7A] (adopting “reckless” standard as encompassed in “knowing” standard for purposes of the Rules of Professional Responsibility—unless the “Rule of Professional Conduct specifically requires the mental state of ‘knowledge’”).

16. See Rule Change 2019(14), supra note 5.

17. Colo. RPC 8.4(1), cmt. [5A].

18. See Corrada and Corrada, 16 Colo. Prac., Emp. L. and Prac. § 17:30, “Sexual harassment— In general” (Thomson West 3d ed. Nov. 2019 update) (quoting 29 CFR § 1604.11(a)). The Colorado Practice Series and the Code of Federal Regulations define “sexual harassment” as including “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,” or when “(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions” as pertains to the victim, or “(3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” Id. While Comment [5A] to Colo.

RPC 8.4 is less specific, it explicitly calls on the “substantive law of employment discrimination,” including statutes and regulations, as guiding its analysis. In that respect, it appears to incorporate the more specific definition as part of its analytic framework.

19. Colorado law recognizes sexual harassment as a form of gender discrimination. See Corrada and Corrada, supra note 18 at § 17:30. As such, “it is prohibited by both Title VII and the Colorado Anti-Discrimination Act.” Id. 20. Id. 21. At least one written comment to the Court sought more guidance on the definition of “professional activities.” See Written Comments, supra note 14 at 8.

22. Colo. RPC Preamble and Scope [3] (citing Colo. RPC 8.4).

23. See generally Martin v. People, 27 P.3d 846, 852 (Colo. 2001) (explaining that if a general statutory provision conflicts with a specific provision, the specific prevails over the general, because the specific provision “acts as an exception to that general provision, carving out a special niche from the general rules to accommodate a specific circumstance”).

24. ABA Model Rules of Prof’l Conduct, R. 8.4(g).

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25. See Rothrock, “Ethics Column: ABA Model Rule 8.4(g): Should Discriminatory Conduct or Remarks Outside the Representation of a Client have Disciplinary Consequences?” The Docket at 1 (Feb. 7, 2017), https://www.dbadocket.org/ ethics/aba-model-rule-8-4g-rothrock.

26. Colo. RPC 8.4, cmt. [3] (emphasis added).

27. Compare Colo. RPC 8.4, cmt. [3] with Colo.

RPC 8.4(d) and 8.4(g). Rule 8.4(d) provides that it is professional misconduct to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(g) is quoted in the text above. See also Rothrock, supra note 25 at 1–2 (explaining that Colo. RPC 8.4 Comment [3] describes the prohibited conduct slightly differently than the conduct prohibited by Rule 8.4(g) itself).

28. See Colo. RPC 8.4(g) and 8.4, cmt. [3]. See also Rothrock, supra note 25 at 2–3.

29. ABA Model Rules of Prof'l Conduct, Rule 8.4(g). See also Rothrock, supra note 25 at 3.

30. ABA Model Rules of Prof'l Conduct, Rule 8.4, cmt. [4].

31. See People v. Gilbert, No. 10PDJ067 (Colo.

O.P.D.J., Jan. 14, 2011), 40 Colo. Law. 132 (May 2011) (lawyer’s reference to female judge with sexually derogatory term while negotiating plea agreement exhibited bias “by word” under Colo.

RPC 8.4, cmt. [3] and thus violated “the plain language” of Colo. RPC 8.4(g)), as recognized

by People v. Abrams, 459 P.3d 1228, 1232, 1244 and n.67 (Colo. O.P.D.J., Feb. 12, 2020) (censuring respondent for using derogatory, homophobic insults to disparage a district court judge in emails to clients). See also Rothrock, supra note 25 at 2–3 (discussing Gilbert).

32. Rothrock, supra note 25 at 3 (discussing ABA Model Rules of Prof'l Conduct, Rule 8.4(g)). See also Public Hearing, supra note 14 at 00:47:15–48:00.

33. See Public Hearing, supra note 14, testimony of Attorney Regulation Counsel Jessica Yates at 00:47:15–48:00.

34. See Written Comments, supra note 14 at 10. Commenter Yates explained that sexual relations with a client were prohibited under Rule 1.8(j), which potentially could be actionable through Rule 8.4(a), as violating the Rules through an attempt to force sex on a client. Id. at 9–10.

35. See Public Hearing, supra note 14, testimony of Attorney Regulation Counsel Jessica Yates at 00:46:00–47:00.

36. Id. 37. Colo. RPC 8.4(i).

38. Several Colorado cases address sexual assault or unlawful sexual contact allegations against attorneys. Because those cases concern criminal acts, they are beyond the scope of this article.

39. People v. Lowery, 894 P.2d 758, 758–59 (Colo. 1995) (per curiam).

40. Id. at 759.

41. Id. at 759–60.

42. Id. at 760 (citing People v. Good, 893 P.2d 101 (Colo. 1995); People v. Crossman, 850 P.2d 708, 711 (Colo. 1993); People v. Zeilinger,

814 P.2d 808, 809 (Colo. 1991); and People v.

Gibbons, 685 P.2d 168, 175 (Colo. 1984)).

43. Id. (citing In re Discipline of Peters, 428 N.W.2d 375, 381–82 (Minn. 1998) (determining that attorney-client relationship was not prerequisite to finding professional misconduct by sexual harassment)).

44. Id. 45. Id. 46. Id. at 759.

47. Colo. RPC 8.4(h).

48. See Public Hearing, supra note 14, testimony of Attorney Regulation Counsel Jessica Yates at 00:43:30–45:00. Commenter Yates expressly discussed the heightened proof requirements under the pre-Rule 8.4(i) framework and the need to simplify the mechanism for prohibiting sexual harassment. She explained that adopting Rule 8.4(i) provided better, clearer notice of the prohibition than did a patchwork approach. Id. at 00:46:40–47:00, 00:50:45–51:15. The Office of Attorney Regulation Counsel also submitted a written comment, noting that “no Colo. RPC directly address[ed] sexual harassment,” that “[p]ublic confidence in the rule of law require[d] public confidence in the system that regulates lawyers,” and that an explicit rule would “provide better notice to lawyers.” See Written Comments, supra note 14 at 9–10.

49. See Public Hearing, supra note 14, testimony of Attorney Regulation Counsel Jessica Yates at 00:48:30–49:50.

50. “[C]ases predating the 1999 revision to this state’s disciplinary system carry less precedential weight than more recent cases.”

People v. Benight, No. 16PDJ032, 2016 WL 7856476 at *6 (Colo. O.P.D.J. Dec. 8, 2016) (citing In re Attorney F., 285 P.3d 322, 327 (Colo.

2012)). In Attorney F., the Colorado Supreme Court, in finding that the Hearing Board had erred, noted simply that “the cases relied on by the Hearing Board predated the revision to Colorado’s attorney disciplinary system and the 1999 adoption of the current rules of procedure governing such proceedings.” Attorney F., 285 P.3d at 327.

51. People v. Rosen, 35 P.3d 478, 480 (Colo.

O.P.D.J. 1999) (citing People v. Boyer, 934 P.2d 1361, 1362 (Colo. 1997) (finding sexual misconduct sanctionable under DR 1-102(A)(6)).

52. See id.

53. Id. at 479.

54. Id. at 481.

55. People v. Meier, 954 P.2d 1068, 1069 (Colo.

1998).

56. Id. 57. Id. at 1070.

58. Id. at 1071.

59. Id. 60. See Written Comments, supra note 14 at 11–168.

61. Id. at 15.

62. People v. Graves, 368 P.3d 317 (Colo. 2016).

63. Id. at 320 (quoting CRS § 18-7-301(1)(d)).

64. Id. at 327.

65. Id.

66. Id. at 328 (citing Arcara v. Cloud Books, Inc., 478 U.S. 697, 698–99, 705 (1986)).

67. See https://www.merriam-webster.com/ dictionary/sexual%20harassment. See also https://bit.ly/2DeDaBX (defining sexual harassment as “harassment (typically of a woman by a man) in a workplace or other professional or social situation, involving the making of unwanted sexual advances, obscene remarks, etc.”).

68. Graves, 368 P.3d at 327.

69. See People v. Hickman, 988 P.2d 628, 640–41 (Colo. 1999) (explaining that while a statute might reach some form of protected speech, “the bulk of the speech covered by the statute is not protected”), cited with approval in Graves, 368 P.3d at 328.

70. People v. Baer, 973 P.2d 1225, 1231–32 (Colo.

1999).

71. Id. at 1231.

72. People in the Interest of R.C., 411 P.3d 1105, 1106–07 (Colo.App. 2016).

73. Id. at 1112–13.

74. See People v. Janousek, 871 P.2d 1189, 1193 (Colo. 1994); accord Baer, 973 P.2d at 1231.

75. People v. Weeks, 591 P.2d 91, 95 (Colo. 1979) (citing Joseph Burstyn, Inc. v. Wilson, 343 U.S.

495, 502–03 (1952), and Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Jackson, J., concurring)), quoted with approval in People in Interest of R.D., 2020 CO 44, ¶ 47.

76. See Janousek, 871 P.2d at 1193.

77. See People v. Cross, 114 P.3d 1, 6 (Colo.App. 2004) (recognizing importance of limiting construction in reviewing statutory overbreadth challenge), rev’d on other grounds, 127 P.3d 71 (Colo. 2006).

78. Colo. RPC 8.5, cmt. [5A].

79. Cf. Baer, 973 P.2d at 1231.

80. People in Interest of R.D., 2020 CO 44, ¶ 54.

In R.D., the Court addressed “true threats” and First Amendment protections to online speech.

As relevant here, it acknowledged that “the interpretative aid of body language” can assist the First Amendment analysis. Id. at ¶ 48.

81. See Hickman, 988 P.2d at 636, 639–41 (recognizing that whether particular speech deserves protection should be resolved on a case-by-case basis; however, even where a statute could “conceivably” implicate protected communications, courts still weigh the degree to which any protected speech might be deterred vis-à-vis the scope of unprotected speech that needs to be regulated) (citing New York v. Ferber, 458 U.S. 747, 773–74 (1982)).

CBA ETHICS HOTLINE A Service for Attorneys The CBA Ethics Hotline is a free resource for attorneys who need immediate assistance with an ethical dilemma or question.

Inquiries are handled by individual members of the CBA Ethics Committee. Attorneys can expect to briefly discuss an ethical issue with a hotline volunteer and are asked to do their own research before calling the hotline.

To contact a hotline volunteer, please call the CBA offices at 303-860-1115.

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An Overview of Colorado Easement Law From Creation to Termination

BY A PR I L D. H E N DR IC K S

This article provides an overview of key principles of Colorado easement law. It discusses various types of easements recognized by Colorado courts and how they may be created, used, and terminated.

A

n easement is a nonpossessory interest in property owned by another.1 Formally defined, “an easement is a right conferred by grant, prescription or necessity authorizing one to do or maintain something on the land of another, ‘which, although a benefit to the land of the former, may be a burden on the land of the latter.’”2 As a practical matter, the ownership of an easement confers upon the easement holder only the right to use the property burdened by the easement for a specific purpose; legal title to

and the right to possess the land itself remains with the property’s owner.3 Though disputes surrounding the creation, use, and termination of easements are commonly handled by attorneys specializing in real estate transactions and litigation, the basic principles of easement law may arise for a broad spectrum of practitioners and in a variety of contexts, such as water transactions; oil, gas, and mineral transactions; and local government and municipal undertakings. This article provides an up-to-date overview4 of the key principles of

Colorado easement law, including a discussion of the various types of easements recognized

by Colorado courts and how these easements may be created, used, and terminated under Colorado law.

The Language of Easements Many common terms associated with easements are not routinely encountered in other areas of law. The following terms and phrases are typically found in cases discussing easements.

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Servient Estate versus Dominant Estate The portion of the property that is burdened by an easement is referred to as the “servient” estate, or the servient tenement, while the property benefited by the easement is referred to as the “dominant” estate, or the dominant tenement.5 Some courts prefer to use the less antiquated terms of burdened and benefited estates.6 Typically, an easement benefits one property while simultaneously burdening an adjacent property. For instance, in the case of a ditch easement,7 the easement holders may construct a ditch across lands owned by others to convey water to their property. In this scenario, the ditch easement is the benefited estate and the lands through which the ditch passes are the burdened estates.8 In the case of reciprocal easements, two or more property owners agree upon an easement that will offer certain benefits and burdens for each affected parcel, thus making each parcel both a dominant and a servient estate.9 Reciprocal easements are commonly used in commercial settings, for example shopping centers or residential complexes with multiple buildings and tenants, to delineate access to and use of shared parking lots and common areas, public roads and walkways, and permissible signage locations. In residential settings, reciprocal easements often involve the use of a shared driveway among two or more adjacent parcels. In any scenario, however, all properties involved are both benefited and burdened by the use and enjoyment of the reciprocal easement.

Appurtenant versus In Gross An appurtenant easement is intended to benefit a specific parcel of land, the dominant estate.

This type of easement runs with the land to which it is attached, so it passes to successive owners of the dominant estate and the servient estate, irrespective of whether the easement is referenced in the deed.10 Under Colorado law, and in most other jurisdictions, easements are presumed to be appurtenant.11 An easement in gross is not attached to the land itself and, therefore, does not run with the land. Rather, this type of easement grants a personal right to a specific individual to use another’s property.12 Examples of easements in

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Reciprocal easements are commonly used in commercial settings, for example shopping centers or residential complexes with multiple buildings and tenants, to delineate access to and use of shared parking lots and common areas, public roads and walkways, and permissible signage locations.

” gross include a landowner’s grant to a specific individual of the right to hunt or fish on the property, or a grant to a utility company of the right to construct a pipeline or power lines through, across, or under the property. At common law, easements in gross were considered to be nontransferable; however, under Colorado law, easements in gross may either be personal to a specific individual or freely

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transferable, depending on the parties’ intent when the easement is created.13 Exclusive versus Nonexclusive Generally, easements are presumed to be nonexclusive. This means that both the easement owner and the servient estate owner may make use of the property burdened by the easement, provided that the servient estate owner does not unreasonably interfere with the easement owner’s use of the easement.14 Where a nonexclusive easement burdens a parcel of land, the rights of the servient and dominant owners must be balanced to ensure the reasonable enjoyment of both estates.15 But where the owner of the servient estate and the easement holder specify that an easement is to be exclusive, the servient estate owner may not access or use any portion of the easement.16 Affirmative versus Negative All easements are either affirmative or negative.

Easements typically confer an affirmative right to enter upon, and use a portion of, the servient estate for a specific purpose. For instance, roads and driveways are often constructed within an affirmative access easement, and pipelines and powerlines may be developed and installed within an affirmative utility easement.

On the other hand, negative easements, also referred to as restrictive covenants,17 prohibit the servient estate owner from using and enjoying his or her property in certain respects. This type of easement does not permit a right of entry upon the servient estate, but rather requires the servient estate owner to restrict his or her use of the property for the benefit of another. One common example of a negative easement is a conservation easement donated by a landowner to a land trust or other governmental entity that imposes perpetual restrictions on the property’s development and use, to protect the property’s conservation value.18 Other common types of negative easements include easements for light and air and for unobstructed views. In these instances, the servient tenement owner typically agrees not to build on his or her property in such a manner that would prevent light from entering a neighboring property or that would obstruct a neighboring landowner’s view.

As property development and construction activities continue to progress in Colorado, the use of light and view plane easements is likely to increase as well.

Creating an Easement Under Colorado law, easements may be created in a variety of ways. Most commonly, easements are created and conveyed in writing (an “express easement”), and oral agreements that purport to recognize an easement are invalid under the statute of frauds.19 As a general matter, where an easement is not expressly granted and acknowledged in writing, the claimant of an easement must seek judicial recognition of his or her interest in the property through one of the several theories of implied easements discussed below.

Express Easements A property owner may expressly grant an easement by deed or other instrument, or, alternatively, the owners of a parcel of land may reserve an easement for themselves when conveying the land to another.20 To determine whether and to what extent an easement has been expressly granted, courts first look to the contents of the deed or instrument to determine the parties’ intent.21 Irrespective of whether the easement is conveyed by grant or reservation, no particular words are necessary to convey an easement in writing. Colorado courts have routinely found that “[w]ords which clearly show the intention to give an easement are adequate to demonstrate its creation, provided the language in the instrument is sufficiently definite and certain in its terms.”22 Generally, vagueness in describing an easement or its location will not invalidate the easement’s existence. The written document must identify with “reasonable certainty” that an easement has been created, along with the dominant and servient estates; however, courts may decline to recognize an easement that has not been identified or defined with sufficient detail.23 For instance, courts have determined that a deed validly conveyed an easement by accurately reciting the size, dimensions, type of use, and location of the easement on the servient tenement, as well as the legal description of

the servient property.24 Generally speaking, if the servient estate’s location is described with reasonable certainty, an express easement will not be deemed void for vagueness.25 If the conveyance documents clearly include an easement but do not describe its location with specificity, the easement may still be enforceable by the parties, but in such instances, either

“

A property owner may expressly grant an easement by deed or other instrument, or, alternatively, the owners of a parcel of land may reserve an easement for themselves when conveying the land to another.

” an amended or correction deed or a judicial decree will be necessary to determine and fix the easement’s location.

Implied Easements Easements that are not expressed in writing by the parties may arise out of the existence of certain facts implied from the transaction.26 Courts have recognized a number of instances in which an easement may be created through implication, including by necessity, prior use, prescriptive or adverse use, and estoppel.

Necessity. Easements typically arise by necessity to resolve access issues for landlocked or otherwise inaccessible properties, based on the assumption and public policy consideration that no person intends to render property inaccessible for the purposes for which it was conveyed or retained.27 Generally, an easement may be implied by necessity where a parcel of land under common ownership is severed and the only reasonable means of accessing the severed property requires crossing the adjoining tract.28 Moreover, the necessity for the easement must have existed at the time the title to the property was severed, and though the need for the easement must be great, the easement need not be the only means of access to the property.29 For example, the Colorado Supreme Court implied an easement by necessity based on a parcel’s location in a mountainous, rocky area where the construction of roads was dangerous and expensive, finding that a “practical inability” to access the parcel constituted sufficient necessity to justify the easement.30 Though physical inability to reach the property benefited by the easement is not required, courts will not imply an easement by necessity if a property can be reached through reasonable alternative means of ingress and egress.31 Prior use. An easement may be implied by prior use when (1) the servient and dominant estates were, at one time, under common ownership; (2) the alleged use was exercised before the severance of title; (3) the use was not temporary; (4) the continuation of the use is reasonably necessary to enjoyment of the parcel; and (5) a contrary intention is neither expressed nor implied by the parties.32 An easement implied by prior use is similar to an easement implied by necessity in that the existence of both types of easements is predicated upon the actions and intentions of the parties at the time the affected parcels were severed from common ownership. However, unlike an easement implied by necessity, an easement by prior use requires that the use be exercised before severance of the parcels from common ownership.33 For example, in Proper v. Greager,34 the Court of Appeals found that an easement had been implied by prior use where the owners

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of a parcel of land constructed a parking area and café on one corner of the lot and a home elsewhere on the property. The owners of that lot would commonly use portions of the parking area to access the home and storage shed.

The parcel was later divided such that Proper purchased the home and surrounding property, and another party purchased the café and the parking lot. Proper continued to use the parking lot to access his home for 26 years with the knowledge of the café owners. Though the café owners eventually sought to preclude Proper’s continued use of the parking lot by constructing a fence to prevent access to Proper’s home, the Court found that an easement from prior use had been established for Proper’s benefit.35 Prescriptive or adverse use. Easements may also be acquired by prescriptive use, similar to the acquisition of property through adverse possession. A prescriptive easement allows one to use the land of another for a specified purpose, after using that land for that purpose for the statutorily mandated period.36 Under Colorado’s adverse possession statute, CRS § 38-41-101, one may acquire an easement by prescription by demonstrating that the use has been (1) open or notorious, (2) continuous and without effective interruption for the 18-year prescriptive period, and (3) adverse or pursuant to an attempted, but ineffective, express grant.37 In 2008, the Colorado General Assembly amended the adverse possession statute to require an enhanced showing by a claimant seeking to assert a claim to property through prescriptive use. Most notably, these statutory amendments require an adverse claimant to (1) establish a good faith belief that he or she was the property’s true owner, and (2) prove each of the above-noted elements of adverse possession by clear and convincing evidence.38 Moreover, where the adverse claimant prevails and is awarded title to the property in question, the court may order the claimant to pay damages to the party losing title, in the amount of the value of the property lost plus property taxes paid during the prescriptive period.39 Where the claimant acquires an easement through adverse use, the court will equitably calculate the damages owed as a percentage of the value of the property and the total property taxes

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paid, based on the nature and character of the property lost and the remainder of the property.40 To satisfy the requirements for a prescriptive easement, the claimant’s use must be continuous and without interruption for the entire 18-year period. The prescriptive use is no longer continuous if the prescriptive period is interrupted at any time during which the property owner reinstates his or her exclusive possession of the property.41 In Trask v. Nozisko, a property owner

“

In 2008, the Colorado General Assembly amended the adverse possession statute to require an enhanced showing by a claimant seeking to assert a claim to property through prescriptive use.

” successfully defeated his neighbor’s claim of a prescriptive easement where the neighbor’s longtime use of the landowner’s driveway was interrupted for less than a week by the landowner’s construction of a large earthen berm and trench across the driveway. Though the neighbor eventually removed the berm and continued to use the driveway, the evidence demonstrated that the neighbor was denied

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the ability to access and use the driveway while the berm was in place. The Court of Appeals in Trask held that, because the erection of this barrier was intended to, and actually did, prevent the neighbor from using the driveway, his use was not continuous for the entirety of the prescriptive period.42 If a party claiming a prescriptive easement can establish that its use of the property was continuous and open or notorious for the entire 18-year prescriptive period, that party is entitled to a presumption that the use was adverse.43 If the landowner cannot present evidence sufficient to rebut that presumption, the claimant is entitled to a finding that a prescriptive easement exists.44 Use is not adverse if the landowner permits that use to occur; accordingly, evidence that the landowner granted the claimant permission to access his or her property is fatal to a claim of adversity, and will thus defeat a claim for a prescriptive easement.45 However, the landowner’s knowledge of the claimant’s use, and its subsequent acquiescence or silence as to that use, does not constitute a sufficient showing by the landowner that the use was permissive and, accordingly, this may not defeat a claim of prescriptive use.46 Estoppel. Courts may find that an easement has been created by estoppel if (1) the servient estate owner permits another to use the land under circumstances in which it was reasonable to foresee that the user would substantially change his or her position, believing the permission would not be revoked; (2) the user substantially changed his or her position in reasonable reliance on that belief; and (3) injustice can only be avoided by establishing an easement in favor of the user.47 An easement by estoppel is an equitable remedy, recognizing that when a landowner induces another to change his or her position in reliance on the promise of an easement, the landowner is estopped from later denying that easement’s existence. Courts often find that an easement has been created by estoppel where a property owner permits another to use a portion of the property, but later changes his or her mind and seeks to deny the easement’s existence due to the lack of a formal conveyance.48 The servient estate owner need not demonstrate that his or

her reliance was the result of the landowner’s deception; a showing that the claimant’s reliance was reasonable under the circumstances will suffice. Whether a claimant’s reliance on the landowner’s promises was reasonable depends on the facts and circumstances of each case, including the nature of the transaction and the parties’ sophistication.49

parties, the easement’s scope determines what the easement holder may do with and within the easement area, and conversely, what actions the servient estate owner may take without infringing on the easement holder’s rights.

The easement holder’s rights are limited by the nature and purpose for which the easement was

Judicial Recognition of Implied Easements As discussed above, several theories are available to claimants seeking recognition of an implied easement. Unlike express easements, an implied easement has legal effect only if the claimant successfully proves all of the required elements for the type of easement sought and, as a result, obtains a court order or decree acknowledging that easement’s existence. One means available to claimants is to commence a quiet title action under CRCP 105 requesting that the court determine ownership of the property in question. A person who files a quiet title action should record a notice of lis pendens in the real property records of the county or counties in which any portion of the property is located.50 The notice must contain the name of the court where the action is pending, the names of the parties to such action, and the property’s legal description.51 By recording the lis pendens, the claimant provides notice of pending litigation to any person who may thereafter acquire an interest in the property.

When the court enters an order acknowledging the existence of an easement, the claimant should, depending on the circumstances, obtain from the court a quiet title decree or record a copy of this order in the county’s property records.

Considering the time, expense, and uncertainty involved in seeking the court’s acknowledgment of an implied easement, obtaining an easement through an express grant is generally preferable, to the extent such an option is available.

“

The Easement’s Scope The scope of permissible uses within the easement area may vary, depending on how the easement was created. Irrespective of whether the easement was created through an express grant or implied through the actions of the

Colorado courts have adopted a flexible approach to interpreting instruments conveying easements, as opposed to the more rigid ‘four corners’ approach historically used to interpret ambiguously written contracts.

” established.52 Generally, the easement owner may use, maintain, and improve the easement in any manner that is reasonably necessary to further the purpose for which the easement was granted, provided that such activities do not unreasonably damage the servient estate or unreasonably interfere with its use and enjoyment.53 Likewise, unless the parties’ intentions

require otherwise, the servient estate owner may also use the property burdened by the easement in any manner that does not unreasonably interfere with the easement holder’s ability to use the easement for its intended purpose.54 Express Easements Where an easement is expressly granted, the document conveying the easement may describe the purposes for which the easement may be used, as well as uses within the easement area that are specifically not permitted. In such cases, the scope and extent of an expressly created easement are limited to the description provided within the conveyance. However, where the writing is silent as to the easement’s permissible uses, courts have determined that the easement may be used for any purpose to which the easement may reasonably be devoted, provided that no use of the easement may impose a greater burden on the servient estate than that which was established when the easement was first created.55 Where use is needed beyond the scope of the granted easement, private condemnation procedures are available,56 although that statutory mechanism is outside the ambit of this article.

Where the written conveyance vaguely or ambiguously addresses the scope of the easement granted, courts will interpret the document in a manner similar to any other deed or contract to properly give effect to the parties’ intent.57 Colorado courts have adopted a flexible approach to interpreting instruments conveying easements, as opposed to the more rigid “four corners” approach historically used to interpret ambiguously written contracts. In Lazy Dog Ranch v. Telluray Ranch Corp., the Colorado Supreme Court determined that the examination of extrinsic evidence may be relevant to determining whether a deed conveying an easement is actually ambiguous.58 Examples of extrinsic evidence that may prove useful to determining the parties’ intent include (1) the location and character of the properties that are burdened and benefited by the easement; (2) the use made of those properties before and after the easement was created; (3) the character of the surrounding area; (4) the existence and contours of any

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general development plan for the area; and (5) consideration paid for the easement.59 If, upon consideration of such evidence, the court finds that the conveyance document is not ambiguous, the court must disregard the extrinsic evidence, and the plain language of the instrument must be given full force and effect.60 However, should the court find that the document is ambiguous, the court must further examine the extrinsic evidence submitted by the parties to determine the parties’ actual intent in creating and granting the easement.61

should consider the needs resulting from the normal evolution of the use of the dominant estate, balanced against the extent to which those needs increase the burden placed on the servient estate.66 In weighing these factors, the Wright Court refused to permit the holder of a prescriptive easement acquired for agricultural use to subsequently use that easement for new residential and recreational uses.67

Implied Easements An implied easement must be broad enough to allow the uses necessary to permit full enjoyment of the dominant estate. For example, the scope and type of uses permitted for an easement implied by necessity vary based on the necessity that gave rise to the easement.62 The scope of an easement by prior use, however, is typically considered to be limited to the use that originally gave rise to the easement.

Parties to an expressly granted easement are free to negotiate a time limit, a specific date, or the occurrence of a specific event upon which the easement will terminate; otherwise, the easement will be presumed to be perpetual in nature.

Prescriptive Easements Colorado courts have outlined a specific line of inquiry in determining the proper scope of an easement acquired by prescription. In Wright v. Horse Creek Ranches, the Colorado Supreme Court adopted the approach outlined in Restatement (First) of Property 63 §§ 477–479, which provide guidance for determining the scope of permissible uses for an easement acquired by prescription.64 Restatement § 477 provides that “[t]he extent of an easement created by prescription is fixed by the use through which it was created.” To determine whether a particular type of use is permissible under a prescriptive easement, the Wright Court looked to Restatement § 478, which advises that the claimed use must be compared with the original use of the easement “with respect to (a) their physical character, (b) their purpose, [and] (c) the relative burden caused by them upon the servient tenement.”65 In considering whether a subsequent use of the prescriptive easement constitutes an expansion of the original use, the Wright Court further looked to Restatement § 479, which provides that, in addition to the factors noted above, courts

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Courts have also used this test to examine a change in the degree of use of a prescriptive easement. In Clinger v. Hartshorn, the Court of Appeals examined the use of a prescriptive easement awarded to the owner of a guide and

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outfitting business that had expanded over time to serve additional customers.68 Where the character and purpose of the easement remained the same, the Court focused on the burden on the servient estate due to the additional number of people accessing the easement area. Under Restatement § 478, “[a]n increase in the burden on the servient tenement beyond that caused by the adverse use by which an easement was created is an undue increase if it is such an increase as, it may reasonably be assumed, would have provoked an interruption in the adverse use had the increase occurred during the prescriptive period.” In Clinger, because the evidence demonstrated only a limited increase in the outfitter’s use of the easement, the Court determined that the increased burden to the servient estate was not substantial enough to require a limitation on the easement.69 Terminating an Easement Just as easements can be created in a variety of ways, they may also be terminated under various circumstances, which, in some cases, depend on how the easement was created in the first place. For instance, an easement may terminate in accordance with an expressly stated provision in the granting instrument.

Parties to an expressly granted easement are free to negotiate a time limit, a specific date, or the occurrence of a specific event upon which the easement will terminate; otherwise, the easement will be presumed to be perpetual in nature. However, any easement is subject to termination by other means, as discussed below.

Written Release or Conveyance Any easement that is appurtenant to the land, irrespective of how that easement was originally created, may be surrendered in writing, either through a written release of the easement or formal conveyance. In either scenario, the written termination must be signed by the easement holder as an affirmative acknowledgment that he or she is relinquishing all rights in and to the easement.

Merger If the easement’s owner conveys or relinquishes the easement to the servient estate owner,

the easement will cease to exist through the merger of the dominant and servient estates into common ownership. By definition, an easement requires two tracts of land to be held under separate ownership, with one tract burdened and the other benefited by the existence and use of the easement. When the servient and dominant estates come under common ownership, the servient estate no longer needs to be burdened by the easement, so the easement will be deemed terminated.70 However, the common ownership must be absolute, without fractional owners or other joint interests taking title to either estate.

For instance, in Westpac Aspen Investments v.

Residences at Little Nell Development, LLC, the Court of Appeals declined to find that an easement was terminated by merger where the easement was owned in joint tenancy and the servient estate was owned by one individual.71 The Court explained that an easement will not terminate by merger of title where only one of the owners unilaterally conveys the easement right that benefits the dominant estate.72 Holding otherwise would extinguish the easement and thus render the remaining joint tenant unable to access the property.73 To demonstrate that an easement has been extinguished by merger, the dominant and servient estates must each be owned in “a completely identical manner.”74 Cessation of Necessity Unlike other types of implied easements, easements by necessity exist only as long as the necessity continues. Because an easement by necessity can be implied only to remedy the “practical inability” to access a parcel of land, if the need for the easement is eliminated by changed circumstances, such as construction of a road or other means of access, the easement will terminate.75 Abandonment An easement can be abandoned, but it cannot be lost through mere non-use. Rather, the party asserting that the easement has been abandoned (typically the servient estate owner) must demonstrate that the easement holder took affirmative acts manifesting his or her intention to abandon the easement.76 This threshold is difficult to satisfy, considering that courts have

held that actions confirming the abandonment of an easement must be established by “clear, unequivocal, and decisive evidence.”77 Accordingly, even where the easement has never been used, the easement holder will retain title to the easement in the absence of further action taken to effectively abandon the easement.78 Adverse Possession An easement may also be terminated through adverse possession.79 The adverse possession statute, CRS § 38-41-101(1), applies to “any right or interest of or to real property,” which includes both possessory interests in land, such as title to real property, and nonpossessory interests in land, such as ownership of an easement.

Thus, in Matoush v. Lovingood, the Colorado Supreme Court concluded that this statute not only permits the acquisition of an easement through adverse use, but also allows an easement to be terminated in the same manner.80 That is, an easement may be terminated if the servient estate owner uses the easement in a manner that is adverse to the easement holder’s right of use, open or notorious, and continuous and uninterrupted for the statutorily prescribed timeframe of 18 years.81 One need not also prove that an easement has been abandoned to successfully declare that the easement has been terminated by adverse use.82 As discussed above, a successful claim to terminate an easement by abandonment depends on the easement holder’s conduct. However, in an action to terminate an easement through adverse use, the inquiry focuses on the adverse party’s use of the easement area, not the easement holder’s actions.83 To satisfy the requirement of “adverse use,” the claimant must demonstrate that his or her use of the easement area is incompatible or irreconcilable with the easement holder’s right of use. This inquiry is necessarily fact-specific.

Recall, however, that the servient estate owner typically retains the right to use the easement area in a manner consistent with the easement holder’s rights. As such, the servient estate owner may use the easement area, and that use will not be deemed adverse unless and until the easement holder requires the use of the easement area, demands to use it, and is

refused.84 At that time, the statutorily mandated adverse possession period will be triggered, and the adverse use must continue for the entire 18-year period to support a claim that the easement has been terminated by adverse use.

Estoppel In a similar scenario, an easement may also be terminated by estoppel. If the easement owner becomes aware of or consents to actions taken by the servient estate owner to prevent the easement holder’s access to and use of the easement, and the easement holder takes no action consistent with preserving the easement rights, the easement may be terminated. In such instance, the easement holder will be estopped from denying that the easement rights were terminated by the servient estate owner’s actions.85 For instance, in Romberg v. Slemon, Romberg owned an access easement across lands owned

by Slemon and others. The adjacent landowners sought to develop their land into a planned subdivision and sought the release of Romberg’s easement. In exchange for Romberg’s abandonment of the easement, the adjacent landowners agreed to construct and pave alternative access to the Romberg property and provide Romberg with underground utility lines. Though Romberg refused to acknowledge the agreement in writing, she verbally agreed to release the easement and the adjacent landowners constructed the new driveway and installed the utility lines.

When Romberg later sought to quiet title to the easement, the trial court held that the easement had been terminated. The trial court found, and the Court of Appeals agreed, that Romberg was estopped from denying that her easement rights had been terminated because the adjacent landowners relied on her commitment to release the easement, to their detriment.86 Conclusion The creation, use, and termination of easements are topics that are often encountered by practitioners unfamiliar with real estate matters.

However, with time and study, attorneys can learn to properly draft new easements, interpret existing easements, explain to clients whether an easement may be implied, and advise them ac-

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cordingly. Many matters concerning easements are relatively straightforward, such as drafting an express easement where the parties agree to the essential terms. However, other matters, particularly those involving the interpretation and recognition of an implied easement, may be extremely complex. In such cases, it may be prudent to seek the experience of or associate with counsel that is well-versed in resolving such disputes.

April D. Hendricks is an associate at Burns Figa & Will. She focuses her practice in the areas of water, environmental, and natural resources law—ahendricks@bfwlaw.com.

Coordinating Editor: Christopher D. Bryan, cbryan@garfieldhecht.com

N OT E S

1. Wright v. Horse Creek Ranches, 697 P.2d 384, 387 (Colo. 1985).

2. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998) (internal quotations omitted).

3. Id. See also Wright, 697 P.2d at 387.

4. Colorado Lawyer previously published a twopart series discussing various issues relating to the law of easements, Masters, “A Survey of Colorado Easement Law, Part 1,” 22 Colo. Law. 991 (May 1993), and Part 2, 22 Colo. Law. 1273 (June 1993). This article updates and expands on the concepts discussed in that series.

5. Lazy Dog Ranch, 965 P.2d at 1234.

6. See, e.g., Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1231 (Colo. 2001).

7. CRS § 37-86-102.

8. Osborn & Caywood Ditch Co. v. Green, 673 P.2d 380, 383 (Colo.App. 1983) (“[T]he owner of the easement, or dominant estate, may do whatever is reasonably necessary to permit full use and enjoyment of the easement including the exercise of rights of ingress and egress for maintenance, operation, and repair.”).

9. See Arrabelle at Vail Square Residential Condo. Ass’n, Inc. v. Arrabelle at Vail Square LLC, 382 P.3d 1275, 1277 (Colo.App. 2016).

10. Lewitz v. Porath Family Trust, 36 P.3d 120, 122 (Colo.App. 2001).

11. Id. 12. WRWC, LLC v. City of Arvada, 107 P.3d 1002, 1004 (Colo.App. 2004).

13. Sinclair Transp. Co. v. Sandberg, 350 P.3d 924, 931–32 (Colo.App. 2014).

14. Lazy Dog Ranch, 965 P.2d at 1238.

15. Id.

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16. Bijou Irr. Dist. v. Empire Club, 804 P.2d 175, 183 (Colo. 1991).

17. City of Steamboat Springs v. Johnson, 252 P.3d 1142, 1146 (Colo.App. 2010). See also Restatement (Third) of Property: Servitudes § 1.3, cmt. 3 (Amer. Law Inst. 2020).

18. CRS §§ 38-30.5-101 et seq.

19. Carlson v. Bold Petroleum, Inc., 996 P.2d 751, 752 (Colo.App. 2000).

20. Gold Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC, 378 P.3d 816, 829 (Colo.App. 2015).

21. Id. 22. Id. See also City of Lakewood v. Armstrong, 419 P.3d 1005, 1009 (Colo.App. 2017).

23. Id. (“[A]n extreme case of vagueness could result in a holding that no easement was granted.”).

24. See, e.g., Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353, 1356 (Colo.App. 1995).

25. Id. See also Armstrong, 419 P.3d at 1010.

26. Wagner v. Fairlamb, 379 P.2d 165, 167 (Colo.

1963).

27. Thompson v. Whinnery, 895 P.2d 537, 540 (Colo. 1995).

28. Id. 29. Bittle v. CAM-Colorado, LLC, 318 P.3d 65, 72 (Colo.App. 2012).

30. Wagner, 379 P.2d at 168.

31. LeSatz v. Deshotels, 757 P.2d 1090, 1092 (Colo.App. 1988) (declining to recognize easement by necessity where property owner could construct bridge over canal).

32. Lobato v. Taylor, 71 P.3d 938, 951 (Colo.

2002).

33. Id. at 951.

34. Proper v. Greager, 827 P.2d 591, 593 (Colo.

App. 1992).

35. Id. at 593–94.

36. LR Smith Invs., LLC v. Butler, 378 P.3d 743, 746 (Colo.App. 2014).

37. Lobato, 71 P.3d at 950 (referencing Colorado’s adverse possession statute in an action to create an easement by adverse possession).

38. CRS § 38–41–101(3) to (4).

39. CRS § 38–41–101(5)(a).

40. Id. 41. Trask v. Nozisko, 134 P.3d 544, 550–51 (Colo.

App. 2006).

42. Id. 43. LR Smith, 378 P.3d at 747.

44. Id. 45. Maralex Res., Inc. v. Chamberlain, P.3d 399, 404 (Colo.App. 2014).

46. LR Smith, 378 P.3d at 747.

47. Lobato, 71 P.3d at 950–51.

48. Id. at 951.

49. Id. 50. CRS § 38-35-110.

51. Id. 52. Bijou Irr. Dist., 804 P.2d 175; Story v. Bly, 217 P.3d 872, 878 (Colo.App. 2008).

53. Lazy Dog Ranch, 965 P.2d at 1238.

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54. Id. 55. Westland Nursing Home, Inc. v. Benson, 517 P.2d 862, 867 (Colo.App. 1974).

56. Colo. Const. art. II, § 14; CRS § 38-41-102.

57. Lazy Dog Ranch, 965 P.2d at 1235.

58. Id. at 1237 (citing Restatement (Third) of Property § 4.1 cmt. c.).

59. Id. 60. Id. at 1236.

61. Id. 62. Wagner, 379 P.2d at 169.

63. Restatement (First) of Property §§ 477–479 (Amer. Law Inst. 1944).

64. Wright, 697 P.2d at 388.

65. Id. at 389.

66. Id. 67. Id. at 390.

68. Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo.App. 2003).

69. Id. See also Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo.App. 1982) (easements can accommodate changes in degree rather than kind).

70. Westpac Aspen Invs., LLC v. Residences at Little Nell Dev., LLC, 284 P.3d 131 (Colo.App. 2011) (citing Brush Creek Airport, L.L.C. v. Avion Park, L.L.C., 57 P.3d 738, 747 (Colo.App. 2002)).

71. Id. at 137.

72. Id. 73. Id. 74. Id. 75. Bear Creek Dev. Corp. v. Genesee Found., 919 P.2d 948, 955 (Colo. 1996).

76. Allen v. Nickerson, 155 P.3d 595, 601 (Colo.

App. 2006).

77. Clinger, 89 P.3d at 468.

78. Matoush v. Lovingood, 177 P.3d 1262, 1271 (Colo. 2008) (“When an easement is created but never used, the easement holder’s property rights are said to remain ‘titular and dormant.’”) (citation omitted).

79. Id. at 1269.

80. Id. 81. Id. at 1270.

82. Id. 83. Id. 84. Id. at 1271.

85. Romberg v. Slemon, 778 P.2d 315, 316 (Colo.

App. 1989).

86. Id. at 316–17.

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FEATURE | TITLE TORT AND INSURANCE LAW

Survey of COVID-19 Insurance Issues Coverage for Business Income Interruptions Part 1

BY T HOM A S W. H E N DE R S ON, N IC K F O GE L , A N D JO SE PH F. “ T R I P ” N I ST IC O I I I

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This two-part article surveys insurance issues relating to business income interruption and workers’ compensation arising from the COVID-19 pandemic.

I

f you’re part of an insurance law mailing list, or even just a casual news follower, you’ve likely seen headlines like these: ■ “Restaurant Groups Serve COVID-19 Coverage Lawsuits in California and Illinois”1 ■ “COVID-19 Coverage Litigation Escalates”2 ■ “Class Action Lawsuits Related to Coronavirus Spike across the Country”3 ■ “Student files class-action lawsuit against Liberty University over coronavirus response”4 Discussions of insurance coverage for COVID-19 losses are taking up all the oxygen in the room. We are not only facing a once-in-a-generation health crisis, but an economic crisis as well—one that could have ripple effects for years. The stakes are high.

At the peak of this crisis, small businesses were losing anywhere from $220 to $383 billion a month.5 Independent restaurants have been particularly hard-hit, with approximately 80% of these businesses reporting that they do not expect to reopen.6 And while many businesses are looking to their insurance policies for a financial lifeline, insurers have been sounding the alarm about their financial health as well— after all, insurance giant AIG may have failed in 2008 if it weren’t for an $85 billion Federal Reserve loan.

It’s impossible to predict how long this health crisis will last, but it is unlikely that a vaccine will be available before spring 2021.7 Until this crisis is resolved, small business owners will continue to face many uncertainties. First and foremost, business owners are probably asking themselves: ■ How is my business going to survive after being closed for months, especially when I’m still unable to open at full capacity?

■ What will I do if there’s an outbreak among my employees?

This article provides guidance to help answer these questions. This Part 1 focuses on commercial property (CP) insurance coverage for business losses connected with the COVID-19 pandemic.

CP insurance issues tend to revolve around whether the actual or threatened presence of COVID-19 is a covered event under a CP policy, whether virus or similar exclusions bar such coverage, and whether specialty coverage applies, such as coverage for business losses due to “civil authority” or “governmental action.”

The elephant in the room is the virus exclusion.

Insurers have maintained that these exclusions, by their plain language, exclude all losses associated with COVID-19. But many of the businesses that have filed suits seeking coverage for business interruption losses have a virus exclusion in their policy. This article explains some of the reasons why these businesses have argued that the virus exclusion does not apply in their situations, and why insurers maintain that it does.

While this article discusses whether coverage exists under typical insurance policy forms and policy language, such forms and language differ from insurer to insurer and, often, from policy to policy. So determining whether coverage exists in a specific situation requires a thorough review of the entire policy at issue.8 COVID-19 and CP Insurance Many small businesses that have suffered and are continuing to suffer loss of business income arising out of the COVID-19 pandemic are looking to their commercial insurance policies for help. Most commercial insurance policies include both CP and Commercial General

Liability (CGL) coverage. CP coverage usually includes “business interruption” (BI) coverage, which generally covers business income loss resulting from “direct physical loss or damage” to covered property. BI coverage is subject to its own limit, by dollar amount, duration, or both. CGL coverage, on the other hand, protects insured businesses against third-party liability claims because of property damage (including loss of use of property) and bodily injury.

Hundreds of businesses in Colorado, and tens of thousands nationwide, have made claims under their CP policies for lost business income and extra expenses suffered in association with the COVID-19 pandemic and the accompanying government-ordered shutdowns and slowdowns.

Insurers have denied these claims, principally relying on arguments that the businesses have not suffered “direct physical loss of or damage to” property, and/or that coverage is excluded by virus or similar exclusions often found in CP policies.

The bulk of COVID-19-related insurance lawsuits filed in March, April, and May 2020 have been brought by businesses with BI coverage seeking payment for losses incurred either due to (1) the presence of the coronavirus that causes COVID-19, or (2) government-mandated shutdowns of their business. Aside from BI coverage, businesses may be entitled to coverage for decontamination expenses or for other direct property losses or damage (e.g., inventory that was lost or destroyed), provided it was “Covered Property”9 as defined in the policy.

The American Property Casualty Insurance Association (APCIA) contends that many insurance policies, including those with BI coverage, do not cover pandemics or viruses such as COVID-19.10 APCIA also claims that interpreting insurance policies to cover these

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losses would topple the insurance industry, especially given APCIA estimates that small businesses will lose up to $220 billion to $383 billion per month.11 However, commentators representing the interests of policyholders have countered that insurers collectively reported a surplus of approximately $800 billion last year.12 BI Coverage The big question facing businesses that have been forced to shut their doors due to the presence of the coronavirus that causes COVID-19—or due to government-mandated business closures—is whether the BI coverage in their CP policies covers their loss of income during the shutdown.

The insurance industry answers no, there has not been a “direct physical loss or damage”; alternatively, it maintains that the ubiquitous virus exclusion precludes coverage.13 However, a closer look at existing Colorado law and at the virus exclusion reveals arguments supporting coverage for business income losses associated with these closures.

In a typical CP policy, a business is covered for “direct physical loss of or damage to” the property covered by the policy that was caused by or resulted from a “Covered Cause of Loss,”14 subject to the policy’s exclusions. This coverage grant describes the trigger of coverage found in every CP policy. Most commercial policies define “Covered Cause of Loss” through an endorsement that provides what is commonly referred to as “all-risk” coverage, meaning that it covers all kinds of accidental losses that are not otherwise excluded.15 What the insurer will “pay for” also varies.

For example, a business that can no longer operate because its building or other covered property, such as inventory, was destroyed by fire could expect that, at a minimum, the cost of repairing or replacing the property damaged by the fire would be covered. But what about the income the business lost while its building was closed for repairs? In this example, the business would likely be covered for these losses under the policy’s BI coverage.

If the business cannot carry on with normal business following the fire, while its “operations”16 have been “suspend[ed],”17 its lost income will be reimbursed under the BI coverage

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pursuant to a specified formula and a defined time. The BI calculation may require supporting documentation and an accountant’s assistance.

BI coverage generally pays for net income the business would have reasonably expected to earn if not for the loss, as well as continuing normal operating expenses, including payroll, that are incurred even though the business is shut down.

CP policies also usually contain “extra expense” coverage, which pays the reasonable cost, over and above normal operating expenses, reasonably necessary to avoid having to shut down during the repair and restoration period, such as paying contractors extra to work at night so the business can stay open during the day.18 While policies vary as to the coverage levels, typically there would be little dispute as to whether the business in the preceding fire loss example is entitled to some BI coverage: the business suffered loss or damage to its property due to the fire; a fire is a “Covered Cause of Loss” in virtually every CP policy; and the business sustained income loss and some continuing expenses. Whether a business’s CP policy covers losses suffered in connection with the COVID-19 pandemic, however, is more complicated.

Overview of CP Property Claims Relating to COVID-19 As explained in the following section, businesses with BI coverage first need to establish that a covered cause of loss caused “direct physical loss of or damage” to their property. A typical business interruption provision states, in pertinent part: We will pay for the actual loss of Business Income you sustain due to the necessary “suspension” of your “operations” during the “period of restoration.” The “suspension” must be caused by direct physical loss of or damage to property at the premises which are described in the Declarations and for which a Business Income Limit Of Insurance is shown in the Declarations. The loss or damage must be caused by or result from a Covered Cause of Loss.19 (Emphasis added.)

Assuming this provision is satisfied, the next consideration is the policy’s exclusions, and especially the “virus exclusion.” Insurers

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began including virus exclusions in most CP policies around 2006 in response to the 2002–03 SARS outbreak.20 A typical virus exclusion states, in pertinent part: We will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.21 (Emphasis added.)

Many businesses have already filed suit against their insurer for their business income losses under the BI coverage in their CP policies that contain such an exclusion. In some of those cases the insureds have argued that it was government-ordered shutdowns—not the virus—that was the proximate cause of their BI losses.22 Do Viruses Cause “Physical Loss of or Damage to the Covered Property”?

The threshold question when determining if there is coverage under a CP policy is whether the business suffered “physical loss of or damage to” its property. Some jurisdictions focus on the “physical damage” portion of this phrase, holding that coverage is only triggered when there is some sort of tangible, visible damage, such as from a fire or hurricane, while others also consider the “physical loss” portion of the phrase, holding that the loss of use caused by the covered property being rendered uninhabitable or unusable triggers coverage.

In Colorado, the existence of a condition that renders the premises uninhabitable constitutes “physical loss of or damage to” the property.23 In Western Fire Insurance Co. v. First Presbyterian Church, a church sought coverage for losses that it incurred after the local fire department ordered it to close its building.24 The fire department had determined that an accumulation of gasoline around and under the building made continued use of the building dangerous.25 The Colorado Supreme Court held that this was “direct physical loss” of the covered property, triggering coverage.26 The Western Fire court rejected the insurer’s argument that the “loss of use” of the church in connection with the fire department's action was not a “physical loss,” reasoning that the

“‘loss of use,’ occasioned by the action of the [fire department]” was the “consequential result of the fact that . . . the premises became so infiltrated and saturated [by gasoline fumes] as to be uninhabitable.”27 In other words, there is a “direct physical loss” where the government shuts down continued use of the property because a physical condition has rendered the premises uninhabitable.28 Courts in other jurisdictions have similarly found a “direct physical loss” where the presence of bacteria (or other disease-causing agents) presented a dangerous condition at the property, rendering the premises uninhabitable.29 For example, in Motorists Mutual Insurance Co. v. Hardinger, the Third Circuit found that bacterial contamination of a home’s water supply constituted a direct physical loss of use of the property because it rendered the home uninhabitable.30 The court described a “physical loss of” the property as occurring when “the functionality of the property [is] nearly eliminated or destroyed,” or where the property is “made useless or uninhabitable.”31 The court further held that a “physical loss” does not require a “distinct, demonstrable, [or] physical alteration of [the] structure.”32 However, other courts have been less inclined to find a “direct physical loss” in connection with bacteria. For example, in Universal Image Productions v. Chubb Corp., a US district court held that the “pervasive odor, mold and bacterial contamination” caused by water seepage into the building did not constitute a “direct physical loss” because the insured did not establish any structural or tangible damage to the insured property. 33 The court did not foreclose the possibility that covered physical damage could occur at the “molecular or microscopic level,” but, in the court’s view, such damage would need to be “distinct and demonstrable.”34 The court also noted that there was no evidence suggesting that the “stench [of the mold and bacteria] was so pervasive as to render the premises uninhabitable” or “suggest[ing] that the entire premises [needed to] be vacated.”35 Thus, the circumstances in Universal Image were markedly different from those in Western Fire, where the insured was ordered to vacate the premises after the fire department determined

that the accumulation of gas fumes had rendered the premises uninhabitable.36 Many Colorado businesses suffering losses in connection with COVID-19 can be expected to argue that its actual or assumed presence has rendered their property uninhabitable,

“

Courts have routinely recognized that ‘physical loss of’ property and ‘damage to’ property represent distinct concepts, and Colorado has long held that every term and phrase in an insurance policy should be given meaning.

” similar to the situation in Western Fire. In particular, Colorado business owners will likely draw parallels between the fire department’s order in Western Fire and recent state and local orders requiring Colorado businesses to close in response to the threat posed by the coronavirus. As discussed above, the insured in Western Fire was ordered to vacate the building

“because of the infiltration of gasoline in the soil under and around the building . . . making the same uninhabitable and making the use of the building dangerous.”37 Similarly, Governor Polis provided the following justification for his executive order closing bars, restaurants, and certain other businesses: [E]vidence that the population of Colorado is at risk for serious health complications, including death, from COVID-19 make it imperative that the measures included in this PHO be taken immediately. ...

COVID-19 also physically contributes to property loss, contamination, and damage due to its propensity to attach to surfaces for prolonged periods of time.38 (Emphasis added.)

Anticipating this argument, an insurance industry group penned an article arguing that “the alleged presence of a virus on objects is not analogous to noxious odors or gaseous releases” because “there is no indication or evidence that the virus corrodes physical surfaces.”39 This argument equates “physical loss” with “physical damage.” To counter this, insureds can be expected to argue that the word “loss” cannot be collapsed into and mean the same thing as “damage.” While “damage” might mean tangible physical damage such as inflicted by a tornado, “loss” must mean something different from “damage.”40 Courts have routinely recognized that “physical loss of” property and “damage to” property represent distinct concepts,41 and Colorado has long held that every term and phrase in an insurance policy should be given meaning.42 Insureds may also argue that there is no reason for the insurance industry to fashion a virus exclusion if the CP Coverage Grant does not contemplate that some virus pandemic events could trigger coverage. Along the same lines, there is no reason for the insurance industry to fashion a virus exclusion if, as some insurers claim, a virus is a “contaminant” that would be excluded by “pollution exclusions” that were already included in most CP policies.

Businesses that have no reports of the actual presence of the virus on their property can

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be expected to argue that government orders shutting down their business, like the fire department order shutting down the church in Western Fire, caused a “direct physical loss” of the Covered Property, for example, the business location. Insurers can be expected to argue that the virus must first be present before there can be a “direct physical loss.”

Pollution Exclusions Many CP policies contain pollution exclusions, which generally exclude losses arising from the discharge, dispersal, seepage, migration, release, or escape of “pollutants,” unless the discharge, dispersal, seepage, migration, release, or escape is itself caused by any of the “specified causes of loss.”43 It is standard for policies containing such an exclusion to define “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”44 Many insurers are citing to the pollution exclusion as another basis to deny coverage for BI loss claims, especially where the policy does not include a virus exclusion.

It is unclear whether courts would consider the coronavirus to be a “pollutant” under this definition. In Connors v. Zurich American Insurance Co., the court found that a standard pollution exclusion would have excluded coverage for a suit by an employee alleging exposure to the bacteria that causes Legionnaire’s disease.45 Other courts have decided differently. In Westport Insurance Corp. v. VN Hotel Group, LLC, the court found that Legionella bacteria are not pollutants, and thus the pollution exclusion did not apply.46 Similarly, in Johnson v. Clarendon National Insurance Co., the court found that the pollution exclusion did not apply to mold, reasoning that the language of the pollution exclusion was unclear, and thus the exclusion must be interpreted in favor of coverage.47 Colorado courts have not yet addressed whether the term “contaminant” in a pollution exclusion applies to bacteria or viruses.48 However, like California, Colorado law provides that insurance policies must be interpreted broadly and in favor of coverage. 49 And exclusions must be construed narrowly and not applied unless they clearly and unambiguously exclude

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coverage.50 Insurers also generally bear the burden of proving that an exclusion applies to a claim.51 Thus, policyholders will likely argue that decisions like Johnson, which applied similar principles, are more persuasive than Connors.

“

Policyholders have had some success limiting the applicability of the pollution exclusion under regulatory estoppel principles, but courts have not yet addressed this argument in the context of CP virus exclusions.

” As discussed above, policyholders may also argue that there is no reason for the insurance industry to fashion a virus exclusion if, as some insurers claim, a virus is a “contaminant” that would be excluded by “pollution exclusions” that were already included in most CP policies.

Virus Exclusions After the SARS epidemic in the early 2000s, carriers sought to add an exclusion seeking to

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avoid coverage for viral or bacterial outbreaks.52 This led to the Insurance Services Office (ISO) developing a standard virus exclusion, which states, in pertinent part: We will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.53 ISO also assisted insurers in persuading state insurance regulators to approve the use of this virus exclusion without requiring a corresponding decrease in premium levels.54 In a July 6, 2006 ISO Circular supporting the approval of its virus exclusion, ISO represented to regulators that While property policies have not been a source of recovery for losses involving contamination by disease-causing agents, the specter of pandemic or hitherto unorthodox transmission of infectious material raises the concern that insurers employing such policies may face claims in which there are efforts to expand coverage and to create sources of recovery for such losses, contrary to policy intent.55 (Emphasis added.)

Similarly, the American Association of Insurance Services (AAIS) represented that “[p]roperty policies have not been, nor were they intended to be, a source of recovery for loss, cost, or expense caused by disease-causing agents.”56 Some commentators have suggested that these representations were, at a minimum, highly misleading, and policyholders could therefore argue that such exclusions are void under the principle of regulatory estoppel.57 Regulatory estoppel is “a form of equitable estoppel whereby insurers are prevented, or ‘stopped,’ from asserting an interpretation of an insurance policy provision that is contrary to the insurer’s explanation of that policy provision to state insurance regulators when the insurer originally sought approval of the policy form from the department of insurance.”58 These commentators point to several examples of courts finding that CP policies covered claims involving disease-causing agents before 2006.59 Policyholders have had some success limiting the applicability of the pollution exclusion under regulatory estoppel principles,60 but

courts have not yet addressed this argument in the context of CP virus exclusions. Courts have enforced virus exclusions in CGL policies, but due to differences in the language of CP virus exclusions, there remain questions as to how courts will interpret those.

Are CP Virus Exclusions Enforceable?

So far, courts have only addressed the applicability of virus exclusions in CGL policies, where the exclusion’s applicability was fairly straightforward. For example, a federal court found that a man alleged to have transmitted HPV and herpes to his girlfriend and their daughter was not entitled to liability coverage due to the policy’s virus exclusion, which excluded “[p]ersonal injury or property damage which arises out of the transmission of a communicable disease, virus, or syndrome by any insured” from coverage.61 However, there are a couple of reasons why courts may be hesitant to follow these decisions in determining CP coverage for business closures related to COVID-19.

First, policyholders have argued that a government order shutting down their business caused a direct physical loss of Covered Property and the suspensions of their normal business operations, not the virus.62 In other words, as one restauranteur explained in a recent interview: “A virus did not close my business.

The government ordered it.”63 Second, the language commonly found in CP virus exclusions is markedly different from CGL virus exclusions. Unlike CGL virus exclusions, the CP virus exclusions do not typically exclude coverage for losses “aris[ing] out of ” a virus.64 Instead, CP virus exclusions exclude “loss or damage caused by or resulting from any virus . . . .”65 Courts have generally interpreted “arising out of” to mean “but for” causation, while “caused by” and “resulting from” mean the narrower “proximate cause.” Insureds will likely argue that this difference in wording has a very significant impact on the scope of the CP virus exclusion.

“Arising out of ” versus “Caused by or Resulting From” When insurers intend to narrow the scope of a coverage grant, they use language such as

“caused by” or “resulting from,” and avoid the phrase “arising out of.” For example, a Pennsylvania federal court found that ISO changed the “arising out of ” language in a coverage grant to “caused by” with the express intention that “a narrower coverage interpretation . . . be afforded.”66 It can therefore be argued that an insurer’s use of “caused by” or “resulting from” in an exclusion demonstrates that the insurer intended for the exclusion to be interpreted more narrowly than exclusions containing the phrase “arising out of.” As discussed above, the CP virus exclusion typically only includes the narrower phrase “caused by or resulting from.”

Specifically, courts have interpreted “arising out of” to mean “but for” causation,67 while “caused by” and “resulting from” mean the narrower “proximate cause.”68 For example, the Tenth Circuit Court of Appeals has suggested that exclusions containing the phrase “arising from” can be triggered where the covered exclusion has only some causal connection to the injuries suffered: [T]he general consensus [is] that the phrase “arising out of” should be given a broad reading such as “originating from” or “growing out of” or “flowing from” or “done in connection with”—that is, it requires some causal connection to the injuries suffered, but does not require proximate cause in a legal sense.69 (Emphasis added.)

On the other hand, at least one federal court has held that exclusions in CP policies containing the phrase “caused by or resulting from” require the insurer to establish that the covered exclusion was the proximate cause of the injuries.70 And as a general matter, a majority of courts have held that the phrases “caused by or resulting from” and “resulting from” denote proximate causation.71 In other words, under virus exclusions using the narrower “caused by or resulting from” language, it would not be enough for the insurer to show that there was some causal connection between a virus and the covered losses; the virus must be the proximate cause of the losses.

Like these federal courts, Colorado courts have held that the term “arising out of” creates a “but for” test.72 The Colorado Court of

Appeals has reasoned that this interpretation is consistent with the ordinary meaning of “arising,” which is generally understood to mean “originating from, growing out of, or flowing from.” 73 However, Colorado courts have not yet determined whether an exclusion containing the “caused by or resulting from” language requires the insurer to establish that the covered exclusion was the proximate cause of the losses.

The difference in meaning that courts have generally attributed to “caused by or resulting from” language, as opposed to “arising out of” language, is critical to resolving disputes over the virus exclusion’s applicability to BI coverage claims due to government-ordered business closures intended to mitigate the spread of COVID-19. Proximate cause can only be found, as a matter of law, “in the clearest cases, where reasonable minds can draw but one inference from the evidence.”74 It is therefore an easier task to argue that closures arise out of—or would not have occurred but for—the community presence of the coronavirus. Whether the coronavirus was the proximate cause of a business closure would be less straightforward in most cases. Many Colorado businesses would not have closed, and did not close, simply because a novel virus was circulating in their community.75 Rather, most businesses that closed did so because their local or state government either limited or prohibited the public’s access to the premises in an effort to “flatten the curve” of community infections and mitigate the spread of the virus.

Businesses asserting business interruption claims relating to government-ordered closures to slow the spread of COVID-19 have already argued in several complaints filed in March and April that, while the novel coronavirus may have prompted state and local governments to order businesses to cease operations, the coronavirus itself was not the cause of their losses; it was the stay-at-home orders that caused the closures.76 Where a business was shut down by government order, the argument is that the virus exclusion is inapplicable.

As discussed below, many policies provide coverage in situations where an order by a civil authority prohibits access to the insured

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premises, resulting in business interruption losses.

Civil Authority Coverage Many CP policies offer business income and extra expense coverage when a civil authority, such as a state, local, or federal governmental entity, prohibits access to an insured’s premises.

Such coverage is available due to direct physical loss of or damage to property other than at the insured’s premises, from a covered cause of loss. Most civil authority endorsements provide that the insurer will only pay for “actual loss of Business Income . . . and necessary Extra Expense caused by action of a civil authority that prohibits access to the described premises . . . .”77 The ISO Civil Authority provision further requires that “a Covered Cause of Loss cause[d] damage to property other than property at the described premises” and “the described premises . . . are not more than one mile from the damaged property.”78 Unlike the standard virus exclusion, the language used in civil authority provisions often differs greatly from policy to policy. Many civil authority provisions do not require that damage occur within a specified radius of the insured premises. Also, some don’t expressly require that the other premises suffer “damage” (as opposed to “loss”), and in the absence of an express “damage” requirement, courts will not read such a requirement into the contract.79 Some policyholders may therefore find coverage for civil authority closures made in response to a more generalized threat of loss of or damage to property. For example, in Sloan v.

Phoenix Hartford Insurance Co., the Michigan Court of Appeals interpreted a civil authority provision covering “actual loss . . . when as a direct result of the [insured] peril(s) . . . access to the premises . . . is prohibited by order of civil authority.”80 The court found that this provision covered business income losses incurred by the owner-operators of several Detroit movie theaters during a curfew imposed by the governor, who imposed the curfew out of concern that “civil strife” in Detroit would escalate into rioting, causing widespread property damage.81 The court did not interpret the policy to require a showing of physical damage at or near the

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premises, noting: “Had the insurer sought to embody . . . a condition of physical damage . . . it would have been a simple matter to insert such a clause . . . .”82 Likewise, some civil authority provisions do not require that the damage be caused by a Covered Cause of Loss. For example, a New York federal court examined the following civil authority provision in Abner, Herrman & Brock, Inc. v. Great Northern Insurance Co.: [We] will pay for the actual business income loss you incur due to the actual impairment of your operations; and extra expense you incur due to the actual or potential impairment of your operations, when a civil authority prohibits access to your premises or a dependent business premises.83 Just as it is unlikely that courts would read a physical damage requirement into a contract that does not contain such a requirement, courts are also unlikely to read in a requirement that a covered cause of loss precede the civil authority order or action, unless the civil authority provision expressly requires this. It follows that, if the policy contains neither of these requirements, the underlying reason for the closure would most likely be irrelevant.

Civil authority coverage is typically subject to the virus exclusion. But some policyholders with both civil authority coverage and a virus exclusion may be able to argue that they suffered losses due to the “impairment of [their] operations” caused by a “civil authority prohibit[ing] access to [their] premises,”84 and that the proximate cause of these losses was the action by the civil authority, not a “virus, bacterium or other microorganism.”85 In fact, several recent complaints involving policies containing virus exclusions have already made similar arguments. One such complaint, for example, listed the following question for the court to decide: “Whether the measures put in place by civil authorities to stop the spread of the COVID-19 caused physical loss or damage to covered commercial property.”86 Another complaint brought under a policy containing a virus exclusion argued that the loss “is not based on the presence of COVID-19,” but rather “a series of events that resulted from or was caused by the orders of Alabama’s State

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Health Officer.” 87 This plaintiff also argued that it had a “reasonable expectation . . . that coverage is available under the Policy for any direct physical loss of Covered Property resulting from the lawful exercise of the government’s police power.”88 What Constitutes a “Prohibition of Access”?

As shown in the example endorsements above, civil authority coverage under most policies is only triggered where the civil authority “prohibits access” to the premises. Some commentators argue that this language does not provide coverage when a civil authority has only issued an “advisory” or “voluntary” evacuation—that is, where the order says something like “‘nonessential’ traffic is discouraged but not prohibited.”89 However, courts have interpreted this “prohibits access” language broadly in past decisions.

In Abner, for example, the court found coverage based on traffic and security restrictions that only partially prohibited access to the premises.90 The court found the “prohibition of access” requirement was met where “traffic restrictions . . . put a crimp in the ability of [the plaintiff’s] Chairman to use his car and driver” and “made it difficult for the plaintiff’s employees to get to the premises . . . .”91 Further, most policies define ‘“suspension’ of business” as including not only the cessation of business but also the “slowdown” of business.92 So it appears likely that businesses, like restaurants, that have suffered a slowdown of their business due to a prohibition on certain types of access, like dine-in service, will still be able to establish that such orders were a “prohibition of access.”

Civil Authority “Orders” versus Civil Authority “Actions” Another important distinction to consider is that some civil authority endorsements require the insured to establish that there was an “action of civil authority that prohibits access” to the premises,93 while others require “an order . . . that . . . [p]rohibits access” to the premises.94 The difference between these endorsements may lead to different results. At least one court has held that policies that require only an action of a civil authority “provide[] for coverage on a

lesser showing” than those policies that require an order of a civil authority.95 In Penton Media, Inc. v. Affiliated FM Insurance Co., the insured, a convention center operator, argued that losses that it suffered as a result of a lease agreement it “involuntarily” entered into with FEMA were the result of “an order of a civil authority,” and were thereby covered by the policy.96 In rejecting this argument, the court stated: An order could be oral or written. It could be formal or informal, as long as it comes from a civil authority. It could mention the Javits Center by name, or it could not, so long as the scope of the order clearly encompassed the Javits Center. However, the policy does not provide that a voluntary (or involuntary) lease agreement is an order of a civil authority. It also does not indicate, or imply that activities taken out of concern that the government might act is sufficient.97 This suggests that an advisory action taken by a civil authority may not be sufficient to trigger coverage in cases requiring an order of a civil authority. However, if coverage under the civil authority provision is triggered upon “an order or action” by a civil authority prohibiting access to the premises, and not simply an order, the provision will likely be more broadly interpreted in favor of coverage.98 Conclusion With all of the insurance coverage issues discussed in this article, it is important to keep in mind that we’re sailing in uncharted waters here.

Truth be told, attorneys on either side don’t know how the courts will end up deciding these difficult issues. And each policy is different, so case outcomes will likely be largely fact-driven.

For those facing difficult legal questions in connection with the COVID-19 outbreak, the best course of action is to consult an attorney with significant experience handling these types of insurance claims.

Part 2 will discuss issues that may arise involving workers’ compensation insurance and other issues relating to workers contracting COVID-19. Further, the authors also expect to provide a summary update in six months reflecting recent decisions of note.

Thomas W. Henderson (shareholder), Nick Fogel (shareholder), and Joseph F. (“Trip”) Nistico III (associate) are part of Burg Simpson Eldredge Hersh Jardine PC’s Insurance Coverage and Bad Faith and Workers’ Compensation Groups, which handle insurance coverage, bad faith disputes, workers’ compensation, and all related litigation—thenderson@burgsimpson.com, nfogel@burgsimpson.com, jnistico@ burgsimpson.com. Ronald M. Sandgrund of the firm assisted in researching and editing the article, but the authors take sole responsibility for its content.

Coordinating Editors: Jennifer Seidman, jseidman@burgsimpson.com; Kristin Caruso, Kristin.

Caruso@ritsema-lyon.com

NOTES

1. See Schwartz et al., “Restaurant Groups Serve COVID-19 Coverage Lawsuits in California and Illinois,” Goldberg Segalla (Apr. 2, 2020), https://www.goldbergsegalla.com/news-andknowledge/knowledge/restaurant-groupsserve-covid-19-coverage-lawsuits-in-californiaand-illinois.

2. Schiffer, “COVID-19 Coverage Litigation Escalates,” Nat’l Law Rev. (Mar. 31, 2020), https://www.natlawreview.com/article/covid-19coverage-litigation-escalates.

3. Stockler, “Class Action Lawsuits Related to Coronavirus Spike Across the Country,” Newsweek (Apr. 3, 2020), https://www. newsweek.com/covid-19-class-actionlawsuits-1496027.

4. Neidig, “Student files class-action lawsuit against Liberty University over coronavirus response,” The Hill (Apr. 14, 2020), https:// thehill.com/regulation/court-battles/492727student-files-class-action-lawsuit-againstliberty-university-over.

5. Wallace, “French Laundry Restauranteur Thomas Keller sues insurer for coronavirus losses,” CNN Business (Mar. 28, 2020), https:// edition.cnn.com/2020/03/27/business/thomaskeller-lawsuit-coronavirus-losses/index.html.

6. Coley, “80 Percent of Independent Restaurants Aren’t Sure They’ll Survive COVID-19,” FSR Magazine (Apr. 2020), https:// www.fsrmagazine.com/finance/80-percentindependent-restaurants-arent-sure-theyllsurvive-covid-19.

7. Id. 8. See generally, Sandgrund et al., “Your First Insurance Policy Coverage Dispute,” 49 Colo.

Law. 42 (Feb. 2020).

9. For example, an Aurora Walmart was forced to close for a weekend to undergo “thorough cleaning and disinfecting” “following an outbreak of COVID-19 cases tied to the store, which claimed the lives of an employee, her husband, and a security guard.” Keith and Grewe, “Aurora Walmart reopens following deadly COVID-19 outbreak linked to store,” KKTV 11 News (Apr. 27, 2020), https://www. kktv.com/content/news/3-COVID-19-deathsconnected-to-a-Colorado-Walmart-storecloses-temporarily-in-Aurora-569911821.html.

The authors are unaware whether Walmart has filed an insurance claim in connection with this

incident.

10. Sampson, APCIA: Insurance Perspective on COVID-19, American Property Casualty Insurance Association (Mar. 26, 2020), http:// www.pciaa.net/pciwebsite/cms/content/ viewpage?sitePageId=59762.

11. Id. (“APCIA’s preliminary estimate is that business continuity losses just for small businesses with 100 or fewer employees could fall between $220–383 billion per month.”).

12. See, e.g., Wallace, supra note 5. But cf.

Sampson, supra note 10 (“The total surplus for all of the U.S. home, auto, and business insurers combined to pay all future losses is roughly only $800 billion, with the combined capital of the top business insurance underwriters representing only a fraction of that amount.”).

13. The authors have reviewed denial letters from many different insurers, which often cite to additional exclusions. But because the “direct physical loss or damage” and virus exclusion (if present) are raised in virtually every denial, and the others are more policy specific, this article focuses on the former.

14. See, e.g., ISO Form CP 00 30 06 07 (2007) (“We will pay for direct physical loss of or damage to the Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.”).

15. See Morley v. United Servs. Auto. Ass’n, 2019 COA 169 ¶ 18 (“[A]n all-risk policy [is] designed to cover a wide range of damages to the [insured’s] property unless coverage for a particular type of loss is expressly excluded.”).

16. See ISO Form CP 00 30 10 12 (2011) (“‘Operations’ means: a. Your business activities occurring at the described premises; and b.

The tenability of the described premises, if coverage for Business Income Including ‘Rental Value’ or ‘Rental Value’ applies.”).

17. See id. (“‘Suspension’ means: a. The slowdown or cessation of your business activities; or b. That a part or all of the described premises is rendered untenable, if coverage for Business Income Including ‘Rental Value’ or ‘Rental Value’ applies.”).

18. If related to repair or replacement, extra expenses are typically only covered to the extent they do not exceed BI coverage

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available if the business closed.

19. ISO Form CP 00 30 10 12 (2011).

20. See Wilson, “Commentary: Does Business Income Insurance Cover Coronavirus Shutdowns?” Ins. J. (Mar. 24, 2020), https://www.insurancejournal.com/ news/national/2020/03/24/562144.htm; Frankel, “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.,” Wash. Post (Apr. 2, 2020), https://www.washingtonpost.com/ business/2020/04/02/insurers-knew-damageviral-pandemic-could-wreak-businesses-sothey-excluded-coverage.

21. ISO Form CP 01 40 07 06 (2006).

22. Special coverage provisions applying governmental and civil authority shutdowns are discussed in later sections.

23. See W. Fire Ins. Co. v. First Presbyterian Church, 165 Colo. 34, 39 (1968).

24. See id. at 36–37.

25. See id.

26. Id. at 39.

27. See id. at 38–39.

28. See id.

29. See, e.g., Cooper v. Travelers Indem. Co. of Illinois, No. C-01-2400-VRW, 2002 WL 32775680, 2002 U.S. Dist. LEXIS 29085 (N.D.Cal. Nov. 4, 2002) (finding that an E. coli contamination in a business’s water supply constituted a direct physical loss of or damage to the property, and therefore holding that the insurer was obligated to pay time element/extra expense coverage); TRAVCO Ins. Co. v. Ward, 715 F.Supp.2d 699, 709 (E.D.Va. 2010), aff’d, 504 F. Appx. 251 (4th Cir. 2013) (finding direct physical loss where a “home [was] rendered uninhabitable by . . . toxic gases,” regardless of lasting physical damage to the property itself). See also Thompson, Coronavirus Is A Direct Physical Loss Triggering Event, Law 360 (Apr. 9, 2020), https://www.law360. com/foodbeverage/articles/1261513?utm_ source=shared-articles&utm_ medium=email&utm_campaign=shared-articles (describing additional cases with similar holdings); Eyerly, “Is There Direct Physical Loss Under A Property Policy When Coronavirus is Present?,” Ins. Law Hawaii (Mar. 30, 2020), https://www.insurancelawhawaii.com/ insurance_law_hawaii/2020/03/does-covid19-create-direct-physical-loss-under-propertypolicy.html (same).

30. Motorists Mut. Ins. Co. v. Hardinger, 131 Fed. Appx. 823 (3d Cir. 2005).

31. Id. at 826–27.

32. Id. at 826 n.6.

33. Universal Image Prods. Inc. v. Chubb Corp., 703 F.Supp.2d 705, 713 (E.D.Mich. 2010).

34. Id. at 710.

35. Id. 36. Another factor distinguishing Universal Image from Western Fire was the existence of a “Pollutant Exclusion” provision, which precluded coverage for “loss or damage caused by or resulting from the mixture of or contact between property and a pollutant when such

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mixture or contact causes the property to be impure and harmful to: (1) itself or other property; (2) persons, animals or plates; [or] (3) land, water or air. . . .” However, the Universal Image court stated that it was not basing its decision on the existence of this exclusion.

Universal Image, 703 F.Supp.2d at 713.

37. See Western Fire, 165 Colo. at 36–37.

38. Fourth Updated Public Health Order 20-24 Implementing Stay At Home Requirements (Apr. 9, 2020), https://cha.com/wp-content/ uploads/2020/04/Fourth-Updated-PublicHealth-Order-Authorized-Business.pdf.

39. Bernard et al., “Coronavirus Is Not A Direct Physical Loss Triggering Event,” Law360 (Apr. 6, 2020), https://www.law360.com/ articles/1258619/coronavirus-is-not-a-directphysical-loss-triggering-event?copied=1.

40. Thompson, supra note 29.

41. See, e.g., Motorists Mut. Ins. Co., 131 Fed. Appx. at 826 n.6 (holding that a “physical loss” does not require a “distinct, demonstrable, [or] physical alteration of [the] structure.”).

42. See, e.g., Colo. Pool Sys., Inc. v. Scottsdale Ins. Co., 317 P.3d 1262, 1270 (Colo.App. 2012) (“[W]e must ensure that any interpretation of “accident” comports with the policy’s remaining provisions.”); Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo.

2003) (“Courts should read the provisions of the policy as a whole, rather than reading them in isolation.”); Holland v. Bd. of Cty. Comm’rs, 883 P.2d 500, 505 (Colo.App. 1994) (in construing contracts, courts must give effect to every provision, if possible).

43. ISO Form CP 10 30 10 12 (2011).

44. See id. These policies also define the term “waste” as “materials to be recycled, reconditioned, or reclaimed.”

45. Connors v. Zurich Am. Ins. Co., 872 N.W.2d 109 (Wis.App. 2015).

46. Westport Ins. Corp. v. VN Hotel Grp., LLC, 761 F.Supp.2d 1337, 1343–44 (M.D.Fla. 2010).

47. Johnson v. Clarendon Nat’l Ins. Co., No. G039659, 2009 WL 252619 at *2, 13 (Cal. Ct.App. Feb. 4, 2009).

48. However, the Colorado Court of Appeals found that “water and sewage, which overflowed from a residential toilet or sewer, [carrying] bacteria and parasites” was a contaminant because the pollution exclusion “is unambiguous when applied to raw sewage.”

Figuli v. State Farm Mut. Fire & Cas., 304 P.3d 595, 598 (Colo.App. 2012). But Figuli did not address whether the bacteria itself was a “contaminant.”

49. See Sandgrund et al., supra note 8 at 49.

50. See id.

51. See id.

52. Pfeil and Meuler, Business Interruption Insurance for COVID-19, Nat’l Law Rev. (Mar. 18, 2020), https://www.natlawreview.com/article/ business-interruption-insurance-covid-19.

53. ISO Form CP 01 40 07 06 (2006). It is interesting to note, although the legal effect is uncertain, that the standard Virus Exclusion refers to “any virus, bacterium or other microorganism that induces or is capable of

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inducing physical distress, illness or disease.”

(Emphasis added.) It is well-accepted that a “virus” is not an organism, micro or not. Among scientists, and according to every textbook and dictionary the authors have consulted, a virus in a nonliving partial strand of an RNA molecule. An organism is a living thing. Thus, the exclusion is factually mistaken in its use of these scientific terms. However, whether this error has any bearing on coverage remains to be seen.

54. See Lewis et al., “Here we go again: Virus exclusion for COVID-19 and insurers,” PropertyCasualty360 (Apr. 7, 2020), https:// www.propertycasualty360.com/2020/04/07/ here-we-go-again-virus-exclusion-for-covid-19and-insurers.

55. Podoshen, New Endorsements Filed to Address Exclusion of Loss Due to Virus or Bacteria, ISO Circular (July 6, 2006), https:// www.propertyinsurancecoveragelaw.com/ files/2020/03/ISO-Circular-LI-CF-2006-175Virus.pdf.

56. See Lewis et al., supra note 54.

57. Id. 58. International Risk Management Institute, Inc., Regulatory Estoppel, https://www.irmi. com/term/insurance-definitions/regulatoryestoppel.

59. See Lewis et al., supra note 54. For example, as discussed above, the court in Motorists Mut. Ins. Co., 131 Fed. Appx. at 826, held that the presence of E. coli may cause a “physical loss” of the property. See also Cooper v. Travelers Indem. Co., No. C-01-2400 VRW, 2002 WL 32775680, 2002 U.S. Dist. LEXIS 29085 (N.D.Cal. Nov. 4, 2002) (finding that a tavern owner was entitled to BI coverage when health authorities ordered closure of the tavern due to the presence of E. coli in the tavern’s well).

60. For example, in Sunbeam Corp. v. Liberty Mut. Ins. Co., 566 Pa. 494, 498 (Pa. 2001), the policies covered pollution if it was “sudden and accidental,” but not otherwise. The damage at issue was “accidental,” but it was not “sudden.”

However, the court held that, under the doctrine of regulatory estoppel, the insurer was prohibited from taking the position that gradual pollution—even if accidental—is not covered.

See id. at 504. This is because the insurer had stated, in a memorandum to the regulatory authority in support of approval of the pollution exclusion, that “[c]overage is continued for pollution and contamination caused injuries when the pollution or contamination results from an accident.” Id. The court further held that “having represented to the insurance department, a regulatory agency, that the new language in the 1970 policies—‘sudden and accidental’—did not involve a significant decrease in coverage from the prior language, the insurance industry will not be heard to assert the opposite position when claims are made by the insured policyholders.” Id. at 500.

61. Koegler v. Liberty Mut. Ins. Co., 623 F.Supp.2d 481, 484 (S.D.N.Y. 2009) (emphasis added). See also, e.g., Alice J. v. Joseph B., 198 A.D.2d 846, 847 (N.Y.App.Div. 1993) (“The complaint alleged the transmission of a communicable disease as the basis for the

causes of action asserted against Joseph B. The basis for Berskshire’s disclaimer of liability was a communicable disease exclusion set forth in the policy . . . . Therefore, Berkshire had sufficient facts to disclaim . . . .”).

62. One policyholder argued, for example, that it was “[t]he orders of [the] State Health Office [that] resulted in a direct physical loss of Covered Property [and] in the necessary suspension of [the insured’s] normal business operations”; and that these “claims are not based on any loss or damage ‘caused by or resulting from any virus.’” Sharecropper LLC v. Farmers Ins. Exch., Case No. 01-CV-2020901319.00, Complaint at ¶¶ 50, 62 (Ala. Dist.

Ct. Jefferson Cty. Apr. 7, 2020), https://www. sefinanciallitigation.com/files/2020/04/OllieIrene-v.-Farmers-Insurance-Exchange.pdf.

63. See Chmura and Jackson, “Restaurants Learn ‘Business Interruption’ Insurance May Not Cover Coronavirus Closures,” NBC Bay Area (Apr. 15, 2020), https://www.nbcbayarea. com/investigations/consumer/restaurantslearn-business-interruption-insurance-may-notcover-coronavirus-closures/2271037 (quoting Rebecca Boyles, owner of Beer Revolution in Oakland, California).

64. See Koegler, 623 F.Supp.2d at 484 (emphasis added).

65. ISO Form CP 01 40 07 06 (2006), https:// northstarmutual.com/UserFiles/File/forms/ policyforms/Current/CP%2001%2040%20 07%2006.pdf (emphasis added).

66. See Dale Corp. v. Cumberland Mut. Fire Ins. Co., No. 09-1115, 2010 WL 4909600, 2010 U.S. Dist. LEXIS 127126 at *15–16 (E.D.Pa. Nov. 30, 2010) (citing 4 Bruner and O’Connor Jr., Bruner and O’Connor on Construction Law § 11:167 (Thomson Reuters 2010)).

67. See, e.g., Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 804 (10th Cir. 1998); Taurus Holdings, Inc. v. United States Fid. and Guar.

Co., 913 So. 2d 528, 539–40 (Fla. 2005) (finding the term “arising out of” in a CGL policy exclusion unambiguous and broader in meaning than the term “caused by” and means “originating from,” “having its origin in,” “growing out of,” “flowing from,” “incident to,” or “having a connection with”); Meadowbrook, Inc. v. Tower Ins. Co., Inc., 559 N.W.2d 411, 419–20 (Minn. 1997) (finding the words “arising out of” in a CGL insurance policy exclusion to mean “causally connected with” and not “proximately caused by”).

68. See Cher-D, Inc. v. Great Am. Alliance Ins. Co., No. 05-5936, 2009 WL 943530, 2009 U.S. Dist. LEXIS 30206 at *20–22 (E.D.Pa. Apr. 7, 2009. See also, e.g., Pioneer Chlor Alkali Co. v. Nat’l Union Fire Ins. Co., 863 F.Supp. 1226, 1233 (D.Nev. 1994) (“[A] ‘loss caused by or resulting from’ means a risk which is proximate as distinguished from remote”); Grifith v. Cont’l Cas. Co., 506 F.Supp. 1332, 1334 (N.D.Tex. 1981) (noting that “caused by or resulting from” language means proximate cause); Home Ins. Co. v. Am. Ins. Co., 147 A.D.2d 353, 354 (N.Y.App.Div. 1989) (noting that phrase “caused by or resulting from” denotes proximate cause); Westchester Fire Ins. Co. v. Cont’l Ins. Co., 312 A.2d 664, 669 (N.J.App.Div. 1973) (equating

phrases “caused by” and “resulting from” to proximate cause), aff’d, 319 A.2d 732.

69. Fed. Ins. Co., 157 F.3d at 804.

70. See Pioneer Chlor Alkali Co., 863 F.Supp. at 1232 (holding that an exclusion for “damage or expense caused by or resulting from . . . corrosion” in a commercial “all risk” policy would only apply if the “proximate cause of [the insured’s] loss was corrosion.”).

71. See Cher-D, Inc., 2009 U.S. Dist. LEXIS 30206 at *20–22. See also, e.g., Pioneer Chlor Alkali Co., 863 F.Supp. at 1233 (“[A] ‘loss caused by or resulting from’ means a risk which is proximate as distinguished from remote”); Grifith, 506 F.Supp. at 1334 (noting that “caused by or resulting from” language means proximate cause); Home Ins. Co., 147 A.D.2d at 354 (noting that phrase “caused by or resulting from” denotes proximate cause); Westchester Fire Ins. Co., 312 A.2d at 668–69 (equating phrases “caused by” and “resulting from” to proximate cause). Cf. Poage v. State Farm Fire & Cas. Co., 203 S.W.3d 781, 787 (Mo. App. 2006) (recognizing that courts have generally interpreted “resulting from” to require proximate causation, but finding that the meaning of the phrase was ambiguous enough that it should be “liberally interpreted to grant, rather than deny, coverage” and “construed against the insurer”).

72. Mgmt. Specialists, Inc. v. Northfield Ins. Co., 117 P.3d 32, 37 (Colo.App. 2004) (citing N. Ins. Co. v. Ekstrom, 784 P.2d 320 (Colo. 1989)).

73. See id.

74. Rodriguez v. Healthone, 24 P.3d 9, 15 (Colo.

App. 2000) (citing Lyons v. Nasby, 770 P.2d 1250, 1256 (Colo. 1989)), rev’d, in part on other grounds, 50 P.3d 879 (Colo. 2002).

75. For example, the Pepsi Center did not cancel or reschedule a sold-out show that took place on March 12, 2020—one day before Governor Polis officially prohibited gatherings of 250 people or more—despite Governor Polis’s previous warnings of the significant health risks posed by large gatherings. See Garcia, “Despite Coronavirus, Post Malone Concert Goes On As Planned,” CBS Denver (Mar. 12, 2020), https://denver.cbslocal. com/2020/03/12/coronavirus-post-maloneconcert-pepsi-center; Roberts, “Polis Bans Gatherings of 250-Plus Over COVID-19, Three Patients Critical,” Westword (Mar. 13, 2020), https://www.westword.com/news/covid-19update-three-coloradans-in-critical-conditionlarge-gatherings-banned-11664613.

76. See, e.g., Sharecropper LLC, Complaint at ¶¶ 50, 62.

77. See ISO Form CP 00 30 10 12 (2011), https://www.northstarmutual.com/UserFiles/ Documents/forms/policyforms/Current/CP%20 00%2030%2010%2012.pdf.

78. Id. 79. Berry, “COVID-19—When Civil Authorities Take over, Are You Covered?” Int’l Risk Mgmt. Inst., Inc. (Mar. 2020), https://www. irmi.com/articles/expert-commentary/whencivil-authorities-take-over-are-you-covered.

See also Sandgrund et al., supra note 8 at 49 (“Ambiguous policy provisions will be

construed in favor of coverage and against limitations that inure to the insurer’s benefit.”).

80. See Sloan v. Phoenix Hartford Ins. Co., 207 N.W.2d 434, 436 (Mich.App. 1973).

81. See id. at 435–36.

82. See id. at 436.

83. Abner, Herrman & Brock, Inc. v. Great N. Ins. Co., 308 F.Supp.2d 331, 334 (S.D.N.Y. 2004).

84. See, e.g., id.

85. See ISO Form CP 01 40 07 06 (2006).

86. El Novillo Restaurant v. Certain Underwriters at Lloyd’s London, No. 1:20-cv-21525, Complaint at ¶ 67(c) (S.D.Fla. Apr. 9, 2020), https://www. law360.com/articles/1262470/attachments/0.

87. Sharecropper LLC, Complaint at ¶¶ 80, 83.

88. Id. at ¶ 84.

89. See Berry, supra note 79.

90. See Abner, 308 F.Supp.2d at 333.

91. Id. 92. See, e.g., ISO Form CP 00 30 10 12 (2011).

93. See id.

94. See Berry, supra note 79.

95. See Penton Media, Inc. v. Affiliated FM Ins. Co., Case No. 3cv2111, 2006 U.S. Dist. LEXIS 64387 at *25 (N.D. Ohio Aug. 29, 2006), aff’d, 245 Fed. Appx. 495 (holding that FEMA’s takeover of the Javits Center pursuant to a lease agreement following the attacks of 9/11 did not constitute an “order of a civil authority.”).

96. See id.

97. Id. 98. See id. at *23 (distinguishing Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 161, 171 (2d. Cir. 2005) on the ground that, in Zurich, “the policy covered an ‘order or action’ of civil authority, not simply an order”). See also Zurich, 397 F.3d at 161, 171 (finding material questions of disputed fact, preventing summary judgment, as to whether actions taken by New York civil authorities following the 9/11 attacks prohibited plaintiff, a janitorial service, from accessing 34 locations in Manhattan with which plaintiff had service contracts).

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TITLE AROUND | THE SUB TITLE BAR | BAR NEWS

News from the CBA, Local Bars, and More

BY J E S SICA E SPI NOZ A-M U R I L L O Bar News is a monthly compilation of news from the CBA, including sections and committees, administration, and local and specialty bar associations.

It also includes notices of activities—past, present, and future—from local and national law-related organizations and groups.

CBA Presidential Visits Go Virtual

Bench-Bar Conference

CBA President Kathleen Hearn Croshal wrapped up her presidential term with virtual visits to the Continental Divide Bar Association and the 16th and Southeastern Colorado Bar Associations.

The Continental Divide Bar Association visit kicked off with remarks from local bar president Braden Angel. Croshal then spoke to members about the CBA’s current initiatives, such as the Greater Colorado Task Force, the Young Lawyer Task Force, and various projects centering around disaster legal services. In addition, CBA Director of Communications Heather Folker filled members in on some of the CBA’s newest benefits, including the CBA’s two new podcasts and Colorado Lawyer’s new website (coming soon!).

At the Southeastern and 16th JD Bar’s joint visit, Croshal delivered remarks on her presidential year. She highlighted the reauthorization of the CBA’s Strategic Plan, shared updates on the planning efforts of the Greater Colorado Task Force, gave a rundown of the recent Board of Governor’s meeting, and welcomed local bar engagement through CBA Community. Connecting more broadly with Greater Colorado remains a CBA priority, and upcoming CBA programming plans with the Southeastern and 16th JD Bar Associations include a legislative visit and recap of the 2020 Legislative Session.

On June 24, the Fourth Judicial District Court partnered with the El Paso County Bar Association and the Ben S. Wendelken Inn of Court to host a live/virtual bench and bar conference. Participants discussed the future of court operations in light of COVID-19 and how to improve court operations during the pandemic.

Judge David Shakes and attorney Melissa Guggisberg host one of the live/online breakout sessions.

CBA YLD Wellness Program

Virtual Zoom meeting with the Continental Divide Bar Association. Past CBA President Terry Ruckriegle was among attendees.

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In June, members who participated in all three of the YLD’s virtual wellness programs were entered into a drawing to receive gift cards. The lucky winners were Lauren Roberts and Morgan Paterson, who each shared what they like about the virtual series. Roberts said she enjoys trying new workouts and discovering new local fitness studios, while Paterson said she likes having a set time each week to work out with other young lawyers, which helps her deal with the isolation of working from home.

2020 Pro Bono Stars

Aab

Anderson

Board of Governors Meeting

Bohnet-Gomez Moore

Randolph

The Denver Bar Association’s Access to Justice Committee has named the following individuals as 2020 Pro Bono Stars for their outstanding pro bono contributions to the Denver legal community, both during COVID-19 and beyond: ■ Jim Aab, Aab & Botts LLC ■ Sonia (Ramirez) Anderson, Husch Blackwell LLP ■ Felipe Bohnet-Gomez, Rathod Mohamedbhai LLC ■ Cheyenne Moore, Nelson Mullins LLP ■ Aurora Randolph, Johnson & Klein, PLLC Please join us in congratulating these Pro Bono Stars and thanking them for all they do!

Laptops from Lawyers Program The Arapahoe County Bar Foundation, the charitable arm of the Arapahoe County Bar Association, recently delivered new laptops to 12 high school graduates who are headed to college this fall. The Laptops from Lawyers program is designed to encourage and assist college-bound students with the highest academic and personal achievement from Arapahoe County area high schools. This award specifically targets students who have been accepted to college and who, but for financial assistance, would be unable to purchase a computer for their freshman year. The Foundation thanks members for their continued support and generous donations, which make this program possible.

On Friday, June 12, the CBA Board of Governors (BOG) met virtually for the first time in CBA history. CBA President Kathleen Hearn Croshal opened the meeting with a sincere thank you to all BOG members and CBA staff for their service. She also announced that the Our Courts program has received the very prestigious Sandra Day O’Connor Award for Advancements in Civics Education.

Our Courts is a joint program of the CBA and the Colorado Judicial Institute that provides nonpartisan educational programs to adults to increase their knowledge of the courts.

Kathleen Schoen, CBA director of access to justice and local bar relations, also spoke during the meeting. Schoen reported on the CBA’s efforts to assist attorneys and members of the public who have been affected by the pandemic.

In addition, Ian McCargar reported on the Greater Colorado Task Force, which works to reduce barriers to engagement for lawyers who practice outside the Denver metro area.

This term, the task force plans to tackle such topics as the CBA bylaws, the CBA’s current technology needs, and local bar resources.

McCargar anticipates the task force will present a plan and list of recommendations for the June 2021 BOG meeting.

DEBA News This year’s Law Day 2020 theme is “Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100.” In 2019–20, the United States is commemorating the centennial of the transformative 19th amendment, which guarantees that the right of citizens to vote will not be denied or abridged by the United States or any state on account of sex. American women fought for, and won, the vote through their voices and actions. Please help us congratulate this year’s winners of the Douglas/Elbert Bar Association’s Law Day Awards!

■ Outstanding Young Lawyer: Hannah Paille, Kokish and Goldmanis, P.C. ■ Outstanding Court Judicial Assistant: Ashley Tucker, clerk for Judge Patricia Herron, Douglas County District Court ■ Outstanding Volunteer: Megan A. Combs, Combs & Recht LLC ■ Law Day Essay Scholarship winner: Audrey Dizdar, Castle View High School DEBA is also pleased to welcome Andrew Birkeland of Kokish and Goldmanis, P.C. to the board as treasurer for 2020–21. Birkeland focuses his practice on family law and civil litigation.

He has served on the CBA Nominating Committee and as treasurer of the Colorado LGBT Bar Association, and he is a part of Leadership Douglas County. Birkeland lives on a farm near Elizabeth with his husband, four horses, two dogs, 11 chickens, and a cat.

CONTRIBUTE

Bar News is always looking for pictures and descriptions of legal events happening throughout Colorado. Snapshots taken with a phone camera work great! To contribute pictures, simply email them to Jessica Espinoza-Murillo at jespinoza@cobar.org, and be sure to select the largest file size when prompted.

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TITLE AROUND | THE SUB TITLE BAR | BAR NEWS HIGHLIGHT

Self-portrait at Window Arch.

The Many Hats of CBA YLD Chair Spencer Rubin

BY H A L E Y H E M E N

S

pencer Rubin has the laid-back Denver vibe down. An avid hiker, he recounts the time he was tackling a 14er when a favorite hat was taken by the wind, right off his head. “I was determined to get it, so I did. Had to scramble down a scree field,” he says. To the uninitiated, a 14er is a mountain peak 14,000 feet or higher—you know, high enough that altitude sickness becomes an issue.

And a scree field? That is a not-altogether stable slope of loose, broken rock piled at the base of

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a cliff. When he says that his most exciting 14er moment of last summer was whether he would have enough breath to make it to the top, one gets a sense that, to the guy who takes on scree fields for fun, this might be understatement.

Shaking Things Up In addition to hiking, Spencer enjoys nature photography, spending time with his “doggo” Yahtzee, and astrophotography, or the capture of celestial bodies or events in the night sky. As

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exciting as Spencer’s hikes can get, this hobby sees him in a more grounded, focused mode.

To make his images, he will take a drive to the closest yet darkest spot where it is still possible to make it home around midnight. Then he sets up his equipment and settles in. “There are lots of different types of astrophotography depending on what kind of celestial body you are trying to capture—and the farther away it is, or the smaller, the more technical equipment you need, which can get costly.” For his kind of photography, Spencer takes wide-angle images of the night sky on nights without moon interferences to get images of the milky way. “Making the images is a time investment and post-production is technical. I have to watch a 45-minute video on photo editing in Photoshop so I can remember all the steps. The final product is arguably art.”

The two sides, the daring hiker and the thoughtful photographer, should make for an exciting year ahead as Spencer takes over as chair of the CBA Young Lawyers Division.

It’s a role he was encouraged to pursue by Joi

The two sides, the daring hiker and the thoughtful photographer, should make for an exciting year ahead as Spencer takes over as chair of the CBA Young Lawyers Division.

Kush, CBA president-elect, and Danaé Woody, outgoing chair of the CBA YLD. “They were the individuals who recognized that I might have leadership potential and worked tirelessly to get me further involved in leadership roles.

I think I knew that I was capable of shaking things up for the better at the CBA when we sold out in three days for our inaugural rafting event. We’ve done it three times now—it was supposed to be four this summer, but COVID.” Career Trajectory Like many lawyers, Spencer had his sights set on the legal profession as a kid. At age 11 or 12, “I made a pact with my best friend that we’d both become lawyers.” And they did just that. His friend went into bankruptcy law and practices in New York City, while Spencer has taken on technology and intellectual property transactions in Denver.

“I got sidetracked along the way, thinking I might make a career out of acting. I loved doing it, but at the end of the day, I wanted to make a decent living. I thought that I could be an entertainment lawyer or work in an adjacent area of law. It was hard to make a different career path, but it was definitely worth it not to be out of work right now.” Although he stopped acting after college, Spencer finds value in the training. “Trying to understand people in order to portray a character makes

Three sorcerers.

you a better communicator, and that skill has helped me as a lawyer.”

A Denver native, Spencer headed to Massachusetts to study drama and environmental studies at Tufts University and returned home for law school at the University of Colorado at Boulder. In his first year of law school, Spencer took an internship at Starz Network and interned for the telecommunications company Charter

Communications/Spectrum in his second year.

“In both of these roles, I helped the deals teams on their TV programming contracts. A lot of tech is involved in those, so that work naturally brought me to practice law in technology transactions.” It’s a dynamic field in which change, or the lack of it, on any given day can affect a deal. “When statutes, regulations, or case law is slow to catch up with deals, it can be a good

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TITLE AROUND | THE SUB TITLE BAR | BAR NEWS HIGHLIGHT

Sunrise at Mesa Arch.

thing in that it helps your client not forestall the closing of a deal over a compliance issue.

A lot of times, when there is no applicable law governing a transaction in the technology space, lawyers have to use business terms to make sure that their clients are adequately protected.”

Since he started practicing, two of the biggest changes he’s seen have been in personal data: the General Data Protection Regulation and the California Consumer Privacy Act were both enacted to regulate the processing of personal data in transactions. “It has made parties much more cognizant of how they must respect people’s personal data that they use.”

Following law school, Spencer worked for Justice Richard Gabriel through a fellowship grant at the Colorado Supreme Court before joining Sherman & Howard, LLC, first as a staff attorney and then as an associate in the business and real estate department. Spencer spent three years at Sherman & Howard, where he cut his teeth on various technology deals, including software and cloud transactions, and data licensing agreements. He also helped his colleagues get more involved with the CBA YLD and, like the cool kid he is, started a Friday afternoon club called Studio 32. In 2019 Spencer joined his new firm, Bryan Cave

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Leighton Paisner, LLP, working on technology and intellectual property transactions. Spencer says the transition from student to practicing lawyer was a fairly easy adjustment. “I think law school prepares you to have the work ethic necessary to work in any law firm—deadlines just become more ‘firm’”—pun intended.

Adding Value to the YLD Spencer has been forging his own career path for the most part, but he credits the CBA with helping him gain his footing as a new lawyer.

“It provided me with new colleagues and a new network to grow into.” His involvement in CBA leadership with the YLD was in some ways a happy accident. “I hadn’t gone to a ton of CBA YLD events before getting involved. I just got the email to submit applications, and I decided that being on the executive council could be a good way to make friends and network.” His firm also had a networking requirement, which provided the additional push.

To other young lawyers curious about the CBA YLD but on the fence about it, Spencer suggests giving it a try. Attend a minor event. “It’s low pressure, and if the CBA YLD isn’t bringing you a value-add, then we aren’t doing our job right.” He sees it as a collaborative process with

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members. “Tell us what we aren’t doing right and come back to a future event and see how we’ve improved or changed things up. The CBA YLD is always adaptable and nimble about its programming, and that’s what I like about it.”

During his term as chair of the CBA YLD, Spencer wants to focus on this idea of providing experiences of real worth. He knows time is precious and lives are busy. “I want to focus on programming that is a value-add to members’ lives. If you want social networking, we will provide you with events that don’t feel like obligations. If you want CLEs, we will provide you with content that thinks outside of the box and is interactive. If you want social justice and community service opportunities, we will leverage the lawyer community to get you opportunities that might not otherwise be accessible.”

The rafting event is a perfect example of that idea of value beyond what is expected, providing members a chance to make necessary professional connections while also taking on a stretch of exciting, continuous rapids in the company of fellow adventurous spirits. No wonder it sold out—and no doubt one can expect more engaging events in the year to come.

Yoga at the Paint Mines.

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TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

Submission Guidelines for Lawyers’ Announcements in Colorado Lawyer The content of Lawyers’ Announcements is subject to approval and must meet criteria for this type of advertising. Lawyers’ Announcements are distinguishable from “display advertising.” Email advertising@cobar.org for information about display advertising in Colorado Lawyer.

General The Lawyers’ Announcements section is reserved to announce the following: ■ New members to a law firm or legal department ■ Name change of a law firm ■ Formation, merger, or new affiliation of law practice(s) and law-related associations ■ Relocation of a law practice ■ Change in job status ■ Retirement of attorneys ■ Notices of professional appointment, honors, or awards

Submission of Content ■ Advertisers are responsible for the editorial and graphic content of their announcements.

■ Digital files are preferred.

■ Color files are now accepted.

■ Colorado Lawyer staff will no longer provide layout/design services.

■ Submit files as press-quality PDFs saved at 300 dpi resolution.

■ Ads must be designed to the correct ad size. Ads sent in an incorrect size are subject to refusal or misprinting.

Half page horizontal ■ 7.75" wide x 4.25" tall ■ $400 CBA members; $525 nonmembers

Payment ■ By check: payable to Colorado Bar Association, mailed to Colorado Lawyer, Attn: CBA Accounting Dept., 1290 Broadway, Ste. 1700, Denver, CO 80203.

■ By credit card: contact Jessica Espinoza-Murillo at advertising@cobar. org.

Full page ■ 7.75" wide x 8.875" tall ■ $750 CBA members; $900 nonmembers

Questions?

Contact Jessica Espinoza-Murillo at advertising@cobar.org.

Sizes and Cost Quarter page vertical ■ 3.75" wide x 4.25" tall ■ $250 CBA members; $350 nonmembers

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LAWYERS’ ANNOUNCEMENTS DEADLINES ISSUE

DEADLINE

January

December 1

February

January 1

March

February 1

April

March 1

May

April 1

June

May 1

July

June 1

August/ September

July 1

October

September 1

November

October 1

December

November 1

Announcements received past deadline will be accommodated as space permits. Payment must be received by deadline to secure placement.

GETTING THE BAND BACK TOGETHER MARK A. FOGG Mark departed our predecessor firm, Kennedy Childs & Fogg, after 26 years and his service as President to become the General Counsel at the COPIC Companies for 9 years. He is returning to Childs McCune to practice with many of his prior law partners. Mark is blessed with a wide array of professional experiences over his 40 year legal career, and he provides his clients with seasoned counsel and the skills of an experienced trial lawyer.

Practice Area Focus

Health Care Law Professional Liability Defense Corporate Governance and Acting As Outside Counsel Medical-Legal Risk Management and Crisis Control Health Care Appeals Presentations to Health Care Providers and Attorneys mfogg@childsmccune.com

www.childsmccune.com

DENVER | COLORADO SPRINGS | DELTA

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(303) 296-7300

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TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

Zeke E. Maggard Associate

Coombe Curry Rich & Jarvis is pleased to announce the addition of associate attorney Zeke Maggard. Zeke will focus his practice in Civil Litigation and Construction Defect.

1660 Lincoln St., Ste. 2950, Denver, CO 80264 303.572.4200 | maggard@ccrjlaw.com | ccrjlaw.com

David A. Ong Associate

Coombe Curry Rich & Jarvis is pleased to announce the addition of associate attorney David A. Ong. David will focus his practice in Civil Litigation and Construction Defect.

1660 Lincoln St., Ste. 2950, Denver, CO 80264 303.572.4200 | ong@ccrjlaw.com | ccrjlaw.com

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Bryant Ritsick Symons & Ratner Elizabeth Bryant, Louisa Ritsick, Amy Symons, and Julie Ratner are excited to announce that the firms of Bryant & Ritsick LLC and Symons & Ratner LLC are merging.

The practice of the new firm, Bryant Ritsick Symons & Ratner LLC, will continue to emphasize estate planning and estate and trust administration.

3773 Cherry Creek Drive North, Suite 600 Denver, Colorado 80209 www.brsrlaw.com 720-845-1690

CBA ETHICS HOTLINE A Service for Attorneys The CBA Ethics Hotline is a free resource for attorneys who need immediate assistance with an ethical dilemma or question. Inquiries are handled by individual members of the CBA Ethics Committee. Attorneys can expect to briefly discuss an ethical issue with a hotline volunteer and are asked to do their own research before calling the hotline.

To contact a hotline volunteer, please call the CBA offices at 303-860-1115.

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TITLE AROUND | THE SUB TITLE BAR | IN MEMORIAM

In Memoriam

Forrest Cook July 24, 1930–May 14, 2020 Adventurer and lawyer Forrest Cook, our former partner and friend, died peacefully on May 14, 2020, of natural causes.

Known for his quiet demeanor and sharp intellect, Forrest helped build the bedrock on which Hutchinson Black and Cook stands today. Always practical in his approach, Forrest guided clients for decades through real estate purchases, estate planning decisions, and, in the case of Ernie Betasso, the sale of 712 acres of open space to Boulder County Parks and Open Space so that others could enjoy the land for generations. We will remember Forrest for his illustrative stories, his adventurous spirit, and his sage advice.

Forrest began his career as a teacher in Ault, Colorado, and later pursued his passion for education by serving on the School Board for the Boulder Valley School District. When he joined HBC in 1965, he was a husband to Donna and a father to Kurt (3), with another child (Janet) on the way. The transactional law practice that Forrest enjoyed included a decades-long representation of the Boulder County Public Trustee and the Left Hand Ditch Company. He was instrumental in developing the firm's sabbatical program, using his own sabbaticals to pursue his passion for sailing and travel.

Outside of work, Forrest was a bit of a Renaissance man with a keen interest in building and fixing all manner of things. In the 1960s, Forrest and Donna built their home in Four Mile Canyon—a residence that Donna and Forrest lived in for most of their 66 years of

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marriage—leaving only to be closer to their daughter Janet in Hood River, Oregon, in 2010.

Later, Forrest built his own sailboat from a bare steel hull he had delivered to his front yard in Four Mile Canyon. After three years of finish work, Forrest took his boat for its maiden voyage—a solo sail from California to the Marquesas Islands. And after that, Forrest rebuilt and restored a 1970 Chevy Camaro into mint condition. He proudly drove that Camaro into his 80s.

It is difficult to relate an HBC anecdote without touching upon Forrest’s dry humor and incredible talent for self-sufficiency. More than one lawyer remembers accompanying Forrest on a site visit to a parcel of land to acquire a necessary understanding of a legal matter. Others fondly recall trips with Forrest to the local landfill—sometimes as extra muscle for one of Forrest’s construction projects but always with some lesson to be learned about land use in Boulder County. Donna and Forrest hosted countless rafting, sailing, and ski trips for members of the firm, the last of which was held at their beautiful home in Steamboat (the interior of which was, of course, constructed by them and their children).

Forrest was a legal counselor in the truest sense of the word—by providing wise advice that considered not only legal principles but also practical solutions. At HBC he leaves a legacy of quiet contemplation and good humor, and serves as a model for a life well and truly lived.

—Submitted by Hutchinson Black and Cook James W. Hubbell February 14, 1955–March 29, 2020 Longtime Denver attorney Jim Hubbell passed away on March 29 at the Balfour Senior Living Center in Stapleton after a long illness.

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B o r n i n Ka n s a s City, Jim was a classic Midwesterner: modest, self-effacing, and quietly book-smart. A National Merit Scholar in high school, Jim graduated from the University of Kansas, where he was an English and philosophy major and earned both Phi Beta Kappa and Phi Kappa Phi honors.

After graduation, Jim went to Stanford Law School, where he was known for his brilliant writing and became senior note editor of the Stanford Law Review. After moving to Denver, he worked as an associate attorney for the Arnold & Porter law firm, doing litigation and corporate work, before moving in 1983 to Kelly/Haglund/ Garnsey/Kahn/Hubbell/Lass, a litigation firm known for its commitment to public service.

Jim’s brilliance as a law student transferred easily into his 25 years of law practice at Kelly/ Haglund, where he developed an eclectic litigation practice, leaning heavily toward clients and causes referred by the Colorado ACLU and the Colorado Lawyers Committee.

Working for those with little power, Jim did a prodigious amount of pro bono work. He was particularly involved in the game-changing early days of the Colorado Homeless Coalition, fighting for the housing rights of low-income/ no-income people as huge government-subsidized housing developments took shape in Denver. His advocacy work for the coalition included litigation, negotiation, and policy assistance to the coalition board, on which he served as a long-term member. He also provided policy, political, and legal advice for many years to Planned Parenthood of the Rocky Mountains, representing it before both state and federal courts.

Jim may have had his most fun in his and colleague Ed Kahn’s lengthy representation of Westword, Denver’s alternative newspaper.

Westword was always seeking records that governments did not want to disclose, and always receiving subpoenas seeking disclosure of its documents and its sources. Jim loved it.

Jim’s former colleagues still recall his cross-examination of a lawyer-developer,

the opening witness in a lender liability case.

Allegation by allegation, claim by claim, Jim’s cross-exam forced the lawyer-developer to literally destroy his own case. At the end of the first day of trial, the plaintiff’s lawyer called and said his client was not prepared to continue—he had checked himself into a hospital. Those who had witnessed the cross-exam were not surprised.

In 2011, the Colorado Lawyers Committee honored Jim with its Outstanding Sustained Contribution Award, given to an attorney who has made a significant difference in the lives of children and the underprivileged. It cited his service on the boards of Colorado Rural Legal Services and the Renaissance Housing Development Corp., as well as his work for the Coalition for the Homeless. It also cited his work on the Lawyers Committee itself (including serving as chair and vice chair), his work as a

trustee for the national Lawyers’ Committee for Civil Rights Under Law, and his chairmanship of the Task Force on Housing.

Away from the office, Jim loved music of all kinds, particularly jazz, and had an encyclopedic knowledge of everyone from Jimi Hendrix (whom he saw in concert when he was a teen) to Thelonious Monk. He was an accomplished guitarist who jammed weekly at a local Denver club. A great reader, he was a particular fan of James Joyce and always said with a straight face that his favorite book was Ulysses; he was also a devoted reader of poetry who could recite T.S. Eliot’s “The Love Song of J. Alfred Prufrock” decades after learning it in college. Jim was also a fabulous cook, known for his wonderful risottos, and even considered opening a risotto-only restaurant after his retirement from law.

He is survived by his two sons, Noah Hubbell and Troy Hubbell of Denver; two sisters,

Dr. Gail Hubbell of Orinda, California, and Dr. Becky Hubbell of Warrensburg, Missouri; his stepmother, three stepsisters, and four stepbrothers, all of the Kansas City area; and his longtime partner, Alison Gwinn, of Denver.

Contributions can be made in Jim’s name to Oxfam America, the Zen Center of Denver, or the Colorado Coalition for the Homeless.

In Memoriam lists the birth and death dates of recently deceased members, including obituaries and tributes as received. The CBA relies on correspondence from members for this information. To help us recognize as many members as possible, please send notices to Susie Klein at sklein@ cobar.org.

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FROM THE COURTS TITLE | SUB TITLE | COURT BUSINESS

Colorado Supreme Court Rules Committees

Notice of Request for Comments Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection and Mandatory Continuing Legal Education and Judicial Education Rules 241, 242, 242.1, 242.2, 242.3, 242.4, 242.5, 242.6, 242.7, 242.8, 242.9, 242.10, 242.11, 242.12, 242.13, 242.14, 242.15, 242.16, 242.17, 242.18, 242.19, 242.20, 242.21, 242.22, 242.23, 242.24, 242.25, 242.26, 242.27, 242.28, 242.29, 242.30, 242.31, 242.32, 242.33, 242.34, 242.35, 242.36, 242.37, 242.38, 242.39, 242.40, 242.41, 242.42, 242.43, 243, 243.1, 243.2, 243.3, 243.4, 243.5, 243.6, 243.7, 243.8, 243.9, 243.10, 243.11, 243.12, 243.13, 244, 244.1, 244.2, 244.3, 244.4, 251, 251.2, 251.3, 251.4, 251.5, 251.6, 251.7, 251.8, 251.8.5, 251.8.6, 251.9, 251.10, 251.11, 251.12, 251.13, 251.14, 251.15, 251.16, 251.17, 251.18, 251.19, 251.20, 251.21, 251.22, 251.23, 251.27, 251.28, 251.29, 251.30, 251.31, 251.32, 251.33, 251.34, and 253 and Rules 250.3, 250.7, 254, and 255 Unauthorized Practice of Law Rules Rules 228, 229, 230, 231, 232, 232.1, 232.2, 232.3, 232.4, 232.5, 232.6, 232.7, 232.8, 232.9, 232,10, 232.11, 232.12, 232.13, 232.14, 232.15, 232.16, 232.17, 232.18, 232.19, 232.20, 232.21, 232.22, 232.23, 232.24, 232.25, 232.26, 232.27, 232.28, 232.29, 232.30, 234, 235, 236, 237, 238, 239, 240, 240.1, and 240.2 Colorado Code of Judicial Conduct Rule 1.1

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Colorado Rules of Judicial Discipline Rules 2 and 33.5

Rule Change 2020(21) Colorado Water Court Forms

Colorado Rules of Professional Conduct Rules 1.3, 1.15D, 1.15E, 5.4, and 5.5

Forms 240W, 241W, 290W, 296W, 297W, 298Wa, 298Wb, 299W, 300W, 301W, 302W, 303W, 304W, 307W, 308W, 312 Form 2, 319 Form 1, 320W Rule change 2020(21) updates forms 240W, 241W, 290W, 296W, 297W, 298Wa, 298Wb, 299W, 300W, 301W, 302W, 303W, 304W, 307W, 308W, 312 Form 2, 319 Form 1, and 320W of the Colorado Water Court Forms.

Public Access to Information and Records Rule 2 Colorado Rules for Magistrates Rule 5 Rules Governing Admission to the Bar Rules 202.2, 204.1, 204.2, 204.3, 204.4, 204.5, 204.6, 205.1, 205.2, 209.2, 210.2, and 227 Deadline for Comments: September 15, 2020 at 5 p.m.

The Colorado Supreme Court requests written public comments by any interested person on the proposed rules mentioned above.

Written comments should be submitted to Cheryl Stevens, Clerk of the Supreme Court.

Comments may be mailed or delivered to 2 East 14th Avenue, Denver, CO 80203 or emailed to cheryl.stevens@judicial.state.co.us and received no later than 5 p.m. on September 15, 2020.

The Clerk will post written comments on the Colorado Supreme Court’s website.

By the Court: Monica M. Márquez Justice, Colorado Supreme Court Note: The proposed amendments can be found on the Court’s website at: https://www.courts.state.co.us/Courts/ Supreme_Court/Rule_Changes.cfm

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Amended and Adopted by the Court, En Banc, June 25, 2020, effective immediately.

By the Court: Monica M. Márquez Justice, Colorado Supreme Court

Rule Change 2020(22) Uniform Local Rules for All State Water Court Divisions Rule 3. Applications for Water Rights (a)–(f) [NO CHANGE] (g) Not later than the fifteenth day of each month, the water clerk shall prepare a resume of all applications filed in the water division during the preceding month. The resume shall give the name and address of the applicant, a description of the water right or conditional water right involved, including without limitation the location of the structures, exchange reaches, instream flow reaches or natural lakes involved, the source of the water right and whether the water claimed is nontributary, and a description of the ruling sought. The resume may also contain additional information from the application if requested

by the applicant. If the applicant is represented by counsel, the resume meeting the foregoing requirements shall be provided by the applicant at the time of filing the application or at the time of any republication, and shall be consistent with any formatting requirements of the water judge. Not later than the end of such month, the water clerk shall post a copy of the resume on the water court’s website and shall also cause such publication to be made of each resume or portion thereof in a newspaper or newspapers as is necessary to obtain general circulation once in every county in which a structure, device, appropriative right of exchange reach, instream flow reach or natural lake for which a protected natural surface level or volume is proposed is located, and in any additional counties that an applicant may request. Publication in such newspaper or newspapers shall constitute the

complete determination by the water judge of every county affected as required by C.R.S. § 3792-302(3)(b). Such newspaper publication shall indicate that a copy of the resume is also available on the water court’s website. A newspaper in which the resume is published or republished shall directly bill the applicant rather than the water clerk for the costs of publication, and the applicant shall promptly pay such costs. Proof of publication of the resume notice shall be filed with the court within one hundred eighty-two (182) days of the date of publication.

Visit the Supreme Court’s website for complete text of rule changes, including corresponding forms and versions with highlights of revisions (deletions and additions), which are not printed in Court Business. Material printed in Court Business appears as submitted by the Court and has not been edited by Colorado Lawyer staff.

Amended and Adopted by the Court, En Banc, June 25, 2020, effective immediately.

By the Court: Monica M. Márquez Justice, Colorado Supreme Court

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FROM COURTS TITLETHE | SUB TITLE | OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

Disciplinary Case Summaries No. 20PDJ023. People v. Becnel III. 6/2/2020.

The Presiding Disciplinary Judge approved a conditional admission of misconduct and imposed reciprocal discipline, suspending Daniel Elmore Becnel III (attorney registration number 39678) from the practice of law in Colorado for one year and one day, effective June 2, 2020. Becnel must petition for reinstatement and show by clear and convincing evidence that he has been rehabilitated, has complied with disciplinary orders and rules, is fit to practice law, and has been reinstated in Louisiana.

This reciprocal discipline case arose out of discipline imposed by the Supreme Court of Louisiana on January 30, 2019, suspending Becnel from the practice of law for one year and one day. Becnel was disciplined for technical conversion of client funds and for failing to properly manage his trust account.

Becnel’s misconduct constituted grounds for reciprocal discipline under CRCP 251.5 and 251.21.

The case file is public per CRCP 251.31.

No. 19PDJ080. People v. Caldbeck. 5/5/2020.

The Presiding Disciplinary Judge disbarred Weldon Stephen Caldbeck (Pennsylvania attorney registration number 32027) from the practice of law in Colorado, effective June 9, 2020.

While practicing federal immigration law in Denver, Caldbeck failed to diligently pursue his client’s matter and missed critical filing deadlines. He failed to keep his client reasonably informed about the status of her case, ignoring many of her requests for information over several years. Caldbeck failed to perform the services for which he was retained, and he engaged in an ongoing pattern of neglect; he

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also knowingly misled and deceived his client about the status of her client matter. Finally, he knowingly converted for his own use an unearned retainer and failed to return his client’s documents and funds upon termination of their attorney-client relationship.

Through this conduct, Caldbeck violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing

a client); Colo. RPC 1.4(a)(3) (a lawyer shall keep a client reasonably informed about the status of the matter); Colo. RPC 1.4(a)(4) (a lawyer shall promptly comply with reasonable requests for information); Colo. RPC 1.5(f ) (a lawyer does not earn fees until a benefit is conferred on the client or the lawyer performs a legal service); Colo. RPC 1.15A(a) (a lawyer shall hold client property separate from the lawyer’s own property); Colo. RPC 1.15A(b) (on receiving funds or other property of a client or third person, a lawyer shall promptly deliver to the client or third person any funds or property that person is entitled to receive and, if requested, promptly render a full accounting regarding such property); Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including by giving reasonable notice to the client and returning unearned fees and any papers and

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property to which the client is entitled); and Colo. RPC 8.4(c) (providing that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The case file is public per CRCP 251.31.

No. 20PDJ032. People v. Goff. 5/29/2020.

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Richard James Goff (attorney registration number 19348) for 11 months, with the requirement that Goff petition for reinstatement, if at all, under CRCP 251.29(c).

The suspension took effect July 6, 2020.

Goff committed multiple instances of misconduct while representing a client in dissolution of marriage post-decree disputes. The client had two children, one a minor and one who required ongoing child support due to a disability. Goff failed to read or respond to the opposing party’s motion for post-trial relief. After the court granted the motion, Goff filed three post-trial motions of his own, one of which the court deemed meritless. On another occasion, the opposing party filed a proposed amended support order with which Goff did not disagree. But when the court approved the order, Goff promptly filed a motion to reduce child support. Also during the representation, Goff moved to withdraw and asked to continue a conference to allow the client to prepare to represent himself. The same day the court granted the motion to withdraw, Goff re-entered his appearance and filed another motion to continue the conference so the client could prepare to represent himself.

Goff failed to advise his client about legal requirements for relocating out of state with the minor child; the client later chose to relocate without the minor child due to complications occasioned by Goff ’s delays. Goff moved to appoint a guardian ad litem for the client’s older child, even though no statutory authority permitted such an appointment. Later, in a dispute about payment of medical expenses, the court instructed Goff to submit a proposed order, but Goff never did so. Without researching the issue, Goff moved that Child Support Services collect payment for unpaid medical expenses, which that agency cannot do.

Goff failed to timely complete the client’s sworn financial statement. Later, the court ordered the parties to update their financial disclosures two weeks before the hearing date. Goff filed six substantially similar sworn financial statements in a three-month period, without explanation for why he filed multiple affidavits or how they differed. To prepare one of these sworn financial statements, Goff emailed the client what he thought was a blank template; the attachment was actually a statement completed by another of his clients that contained confidential information.

The court set a hearing on support modification and on a contempt motion against Goff’s client. At the hearing, Goff failed to make many arguments the client wanted him to make about support. After the hearing, Goff filed a motion for sanctions against the opposing party against his client’s wishes. The client asked Goff to withdraw the motion. Goff refused. Later, Goff filed a second motion for sanctions, also against the client’s wishes.

The client erroneously believed that he had to support his eldest child because the child was protected by a guardianship. Goff did not correct this misapprehension. Instead, he moved to end the guardianship in the post-decree case, not in the guardianship case. The motion was denied because it was filed in the wrong case. Goff did not refile it in the correct case.

Through this conduct, Goff violated Colo.

RPC 1.1 (a lawyer shall competently represent a client); Colo. RPC 1.2(a) (a lawyer must abide by the client’s decisions concerning the objectives of a case and consult with the client regarding the means to achieve the objectives); Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client); Colo. RPC 1.4(a) (a lawyer shall reasonably communicate with the client); Colo. RPC 1.4(b) (a lawyer shall explain a matter so as to permit the client to make informed decisions regarding the representation); Colo. RPC 3.1 (a lawyer shall not assert frivolous claims); and Colo. RPC 8.4(d) (providing that it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice).

The case file is public per CRCP 251.31.

No. 20PDJ034. People v. Raabe. 6/8/2020.

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct in this reciprocal discipline matter and suspended Thomas Paul Raabe (attorney registration number 11529) for six months, all stayed upon the successful completion of a two-year period of probation. The probation took effect June 8, 2020.

In a Douglas County District Court case, Raabe pleaded guilty to criminal charges of a securities registration violation (a class 6 felony) and unlawful activity concerning the sale of land (a class 1 misdemeanor). Raabe stipulated to a four-year deferred judgment and sentence.

As a condition of his deferred judgment, Raabe agreed to pay $150,000 in restitution.

The criminal charges were premised on Raabe’s conduct as a 50% business owner in a start-up oil and gas company. Investors paid the company $300,000, believing they would earn profits by funding exploration and drilling for oil and gas in Colorado. The wells were never drilled, and the company never returned the principal or promised profits to the investors.

Through this conduct, Raabe violated Colo.

RPC 8.4(b) (providing that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).

The case file is public per CRCP 251.31.

These summaries of disciplinary case opinions and conditional admissions of misconduct are prepared by the Office of the Presiding Disciplinary Judge and are provided as a service by the CBA; the CBA cannot guarantee their accuracy or completeness. Full opinions are available on the Office of the Presiding Disciplinary Judge website at www.coloradosupremecourt.com/PDJ/ PDJ_Decisions.asp.

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Summaries of Selected Opinions No. 19-3088. Couser v. Gay. 5/22/2020.

D.Kan. Judge Matheson. Eleventh Amendment Immunity—42 USC § 1983 Official Capacity Claim—County Sheriff Status.

Following a traffic chase, Kansas law enforcement officers apprehended defendant. A sheriff’s deputy shot him in the back and he later died from the gunshot wound. Defendant’s estate commenced this action, alleging constitutional violations under 42 USC § 1983 and a state law

claim. The complaint named as defendants several governmental entities, several officers in their individual capacities, and two county sheriffs in their individual and official capacities.

As relevant to this appeal, the county sheriffs moved to dismiss the official capacity claims, arguing they were state actors entitled to Eleventh Amendment immunity. The district court denied each sheriff’s motion, concluding that sheriffs are arms of the county, not the state.

One sheriff appealed, contending that the sheriff is a state actor. While Eleventh Amendment immunity applies to an entity that is an arm of the state, the US Supreme Court has not extended Eleventh Amendment to counties. In determining whether an official is a representative of the state or a local government entity, the Tenth Circuit evaluates four factors: (1) the character ascribed to the defendant under state law; (2) the autonomy accorded the defendant under state law; (3) the defendant’s finances, including the amount of state funding received; and (4) whether the defendant is concerned primarily with local or state affairs. This inquiry is function-specific, based on state law and structure. Here, (1) Kansas law lists sheriffs under county officer provisions; (2) Kansas sheriffs have substantial autonomy from the state in their law enforcement functions; (3) the county controls the sheriff’s salary and books; and (4) the sheriff is primarily concerned with local affairs. Accordingly, Kansas county sheriffs are county actors, and Eleventh Amendment immunity does not apply.

The order was affirmed.

No. 19-5035. In re MDL 2700 Genentech Herceptin Marketing and Sales Practice Litigation. 5/29/2020. N.D.Okla. Judge Briscoe.

Multi-District Litigation—Federal Preemption— Obstacle Preemption—Impossibility Preemption.

This appeal arose from a group of 14 diversity cases that were consolidated by the Judicial Panel on Multidistrict Litigation. The plaintiffs in each case are cancer treatment providers who purchased multi-dose vials of Herceptin, a breast cancer drug, from defendant. Plaintiffs alleged that defendant violated state law by misstating the drug concentration and volume on the product labeling, and by failing to ensure

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that each vial contained the labeled amount of the active ingredient. The claims included breach of express and implied warranties and unjust enrichment.

Following consolidation, defendant moved for summary judgment on the basis that the state law claims were preempted by federal law, arguing that the Public Health Service Act (PHSA) and the Food, Drug, and Cosmetic Act (FDCA) preempt the state law claims.

Specifically, defendant contended that the state law claims were precluded by both obstacle preemption and impossibility preemption. The district court granted the summary judgment motion.

On appeal, plaintiffs challenged the district court’s grant of summary judgment, specifically its conclusions that obstacle preemption and impossibility preemption bar their claims. The production and marketing of biologics such as Herceptin is governed by both the PHSA and the FDCA. Preemption arises where (1) Congress defines explicitly the extent to which its enactments preempt state law; (2) in the absence of explicit language, Congress intends the federal government to occupy exclusively the regulatory field; and (3) state law conflicts with federal law, which includes both obstacle and impossibility preemption doctrines. It is undisputed that Congress did not include an express preemption provision in either the PHSA or the FDCA, nor is there evidence that Congress intended the federal government to occupy the field. The Tenth Circuit analyzed whether a conflict exists between state and federal law.

Obstacle preemption exists when the challenged state law is an obstacle to the accomplishment and execution of Congress’s purposes and objectives. Under the FDCA, the Food and Drug Administration establishes general labeling standards but does not routinely enforce those standards, which leaves room for the states to impose their own requirements as long as they do not conflict with the federal regulatory scheme. Here, the state law claims were consistent with the federal framework, so obstacle preemption did not apply.

Impossibility preemption exists “when it is impossible for a private party to comply

with both state and federal requirements.”

Concluding that Herceptin is a “liquid drug,” the Tenth Circuit held that the labeling duty imposed by federal regulations was the same as that imposed under the state law claims, and it was not impossible for defendant to comply with both sets of laws. Therefore, impossibility preemption did not apply.

The grant of summary judgment was reversed and the case was remanded for further proceedings.

No. 19-1169. Rocky Mountain Prestress, LLC v. Liberty Mutual Fire Insurance Company.

6/2/2020. D.Colo. Judge Hartz. Builder’s Risk Insurance Policy Coverage—Insurance Policy Interpretation—Defective Workmanship Exclusion—Resulting Loss Exception.

Plaintiff was a precast concrete subcontractor on an office building construction project. The

owner of the property on which the construction took place purchased a builder’s risk insurance policy (the policy) from Liberty Mutual Fire Insurance Company (Liberty). The policy had a defective workmanship exclusion, which eliminated coverage for loss or damage in connection with an act, defect, error, or omission related to design, specifications, construction, materials, or workmanship. After an engineering firm engaged by plaintiff identified defects in its work, plaintiff sought coverage under the policy for the cost of repairing its faulty work. Liberty began investigating plaintiff’s claim. Plaintiff then filed a lawsuit against Liberty in state court for breach of contract and extra-contractual claims.

Liberty removed the action to federal court based on diversity jurisdiction. Following written discovery, Liberty moved for summary judgment and the district court granted the motion,

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concluding that the defective workmanship exclusion applied to the work at issue.

Plaintiff contended on appeal that the policy’s resulting loss exception to the exclusion applied. The exception provides that if an act, defect, error, or omission as described in the exclusion results in a covered peril, Liberty will cover the loss or damage caused by that covered peril. Plaintiff argued that this language was circular, inconsistent, and ambiguous in connection with the defective workmanship exception and thus should be construed against the insurer. The Tenth Circuit examined case law from other jurisdictions construing similar provisions and concluded that the resulting loss exception here functions to restore coverage only when an excluded peril leads to loss from an independent non-excluded peril. In other words, coverage may be extended to other property damage that results from defective workman-

ship, but not to the defective workmanship itself. Any other interpretation would render the exclusion clause superfluous by permitting the exception to swallow the exclusion. Here, based on the undisputed facts, there was no information to suggest that the damage resulted from another cause. Accordingly, the claimed loss unambiguously falls within the policy’s defective workmanship exclusion, and the policy’s resulting loss exception does not restore coverage for this expressly excluded cause.

Plaintiff also argued that if it did not present sufficient evidence of resulting damage to other parts of the project, this was because it did not have a sufficient opportunity for discovery before the district court granted summary judgment.

This argument failed because plaintiff did not invoke Fed. R. Civ. P. 56(d) to seek additional time for discovery below.

The summary judgment was affirmed.

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No. 19-5059. United States v. Morales.

6/8/2020. N.D.Okla. Judge Matheson. Motion to Suppress—Fourth Amendment Search and Seizure—Reasonable Suspicion—Scope of Investigation following Traffic Stop.

An officer stopped defendant’s vehicle on an interstate highway for activating fog lamps in violation of law. During the first 10 minutes of the traffic stop, the officer questioned defendant and developed a suspicion that defendant and his passenger were engaged in illegal drug activity, based on defendant’s extreme nervousness, admission to prior convictions, and inconsistent answers. The officer then questioned the passenger for seven minutes. Defendant and the passenger gave inconsistent responses and contradictory answers to questions about their asserted destination and travel plans. The officer then called the El Paso Intelligence Center (EPIC), a national law enforcement database that provides information about border crossings and criminal history, which took another 15 minutes. Thirty-two minutes into the encounter, defendant and his passenger consented to the officer’s search of the car. The search uncovered four vacuum-sealed bags containing a total of 4.11 kilograms of methamphetamine.

Defendant was charged with conspiracy and possession with intent to distribute methamphetamine. He moved to suppress the methamphetamine, contending that the officer’s questions were unrelated to the stop and his actions impermissibly extended the stop. The district court determined that the officer had a reasonable suspicion of drug trafficking, but the EPIC call was an unreasonable delay, and it granted the motion to suppress.

The government filed an interlocutory appeal, contending that the district court erred in holding that the 15-minute EPIC database check rendered the traffic stop unconstitutional.

When the government claims that reasonable suspicion supported the continued detention after an initial traffic stop, the further detention’s duration must last no longer than necessary to effectuate the purpose of either dispelling or confirming the officer’s reasonable suspicion. Here, the 15-minute EPIC call did not impermissibly exceed the scope or duration requirements for investigative detention because EPIC provides

information on criminal history and border crossings, which was relevant to the officer’s drug trafficking suspicions.

The suppression ruling was reversed and the case was remanded for further proceedings.

No. 18-1146. United States v. Merritt.

6/10/2020. D.Colo. Judge Eid. Driving Under the Influence—Fed. R. Evid. 404—Fed. R. Evid.

403—Harmless Error.

In August 2016, defendant crashed his car into a vehicle containing a family of three.

Defendant was intoxicated and driving in the wrong lane. One passenger in the other vehicle was killed, another was seriously injured, and the driver suffered minor injuries. Defendant was charged with second degree murder and assault resulting in serious bodily injury.

At trial, the government introduced evidence of three other drunk driving incidents involving

defendant. The first two preceded the subject incident and were introduced to show the requisite intent for second degree murder.

The third occurred in November 2016, while defendant was out on bond, and was introduced to show extreme indifference under the doctrine of chances. The jury convicted defendant on both charges.

Defendant appealed the murder conviction, contending that the district court should not have allowed testimony about the facts and circumstances of the two prior incidents under Fed. R. Evid. 404 and 403. Under Rule 404(b), evidence of crimes, wrongs, or other acts is permitted to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” The facts and circumstances of defendant’s 2012 and 2014 convictions were offered for a proper purpose, to help establish that he acted with malice

aforethought, as required for second degree murder, during his August 2016 accident. Further, the trial court did not abuse its considerable discretion under Rule 403 in finding that this evidence was highly probative of defendant’s state of mind, and any prejudice resulting from its admission would not substantially outweigh the evidence’s probative value.

Defendant also argued that the district court erred in allowing the government to present evidence of his November 2016 drunk driving arrest because this subsequent act had no relevance to his prior mental state and the potential for prejudice was extreme. The Tenth Circuit concluded that any error in admitting this incident was harmless, given the overwhelming evidence of guilt in the record stemming from the three incidents.

The second degree murder conviction was affirmed.

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No. 18-6221. United States v. Young. 6/16/2020.

W.D.Okla. Judge Lucero. Motion to Suppress Confession—Coercion—Misrepresentations by Officer—Voluntariness of Confession.

A deputy observed defendant’s vehicle swerving on a roadway and signaled him to stop. Defendant continued to drive and ultimately stopped in a residential area and fled on foot. The deputy pursued and arrested defendant. After the arrest, the deputy retraced defendant’s path and found a case containing four grams of a substance containing methamphetamine. Later that day, officers returned to the area and found a bag containing 93 grams of a substance containing methamphetamine near where defendant stopped his car. Defendant admitted to possessing the smaller quantity but denied the larger quantity was his. He then cut off questioning and revoked his consent to speak.

P P A

Several days later an FBI agent interrogated defendant in the county jail. During the interrogation, the agent invoked his purported relationship with the judge numerous times and stated that he would speak with the judge about leniency if defendant was honest. The agent also made representations about the sentence defendant would face. After waiving his Miranda rights, defendant confessed to possessing the larger quantity. Following the confession, defendant was charged with possession with intent to distribute. Defendant moved to suppress the second confession as involuntary.

The court held a hearing, and although it found that the agent made false representations and improper promises of leniency, it concluded that the confession was not involuntary, and it denied the motion to suppress.

On appeal, defendant argued that the district court erred in denying his motion to suppress. He

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argued that the confession was involuntary because the officer who interrogated him deceived him about having access to the federal judge on the case. Here, the agent misrepresented the sentence defendant faced and the leniency that would be afforded him if he cooperated, and he made improper and false statements about his access to a federal judge. Defendant confessed within minutes of these statements.

Under the totality of the circumstances, the agent’s conduct was coercive and defendant’s capacity for self-determination was critically impaired, rendering the confession involuntary.

The decision was reversed, the judgment was vacated, and the case was remanded for further proceedings.

These summaries of selected Tenth Circuit opinions are written by licensed attorney Robert Gunning (Boulder).

They are provided as a service by the CBA and are not the official language of the court. The CBA cannot guarantee the accuracy or completeness of the summaries. The full opinions are available on the CBA website and on the Tenth Circuit Court of Appeals website.

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FROM COURTS TITLE THE | SUB TITLE | COLORADO COURT OF APPEALS

Summaries of Published Opinions June 4, 2020

2020 COA 87. No. 18CA1769. Chan v. HEI Resources, Inc. Federal Securities Law—Colorado Securities Act—Investment Contracts—Business Organizations—General Partnerships.

Defendants solicited thousands of investors nationwide by offering them interests in oil and gas exploration and drilling joint ventures.

Interested parties were sent a joint venture agreement (JVA). Under the JVA, the joint ventures were organized as general partnerships, and the partners had significant management rights and responsibilities, and were jointly and severally liable for joint venture liabilities.

Plaintiff, in his official capacity as Colorado’s securities commissioner, brought this enforcement action against defendants for violating the Colorado Securities Act (CSA) by employing unlicensed sales representatives to offer and

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sell unregistered securities. Plaintiff alleged that notwithstanding that the investors are designated general partners in the joint ventures, their interests are securities—specifically, investment contracts—under the CSA, and they violated the CSA when offering those interests.

In 2013, following a partial summary judgment and a trial, the trial court found that the joint venture interests were not investment contracts and therefore were not securities under the CSA. The court reached that conclusion after applying the leading case, Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which identifies three ways in which a party can overcome a strong presumption that a general partnership interest isn’t an investment contract. Plaintiff appealed, and a prior Court of Appeals’ division reversed, concluding that the Williamson presumption doesn’t apply in an action under the CSA and the trial court erred

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by considering the partners’ general, rather than venture-specific, business experience under the second Williamson test. The division remanded, and on remand, the trial court first determined that the general partners’ interests were investment contracts under the second and third Williamson tests and “other economic realities.” After taking additional evidence, the court later ruled that defendants had violated the CSA, enjoined them from engaging in securities-related activities in Colorado, and ordered certain defendants to pay plaintiff restitution.

On appeal, defendants argued that the prior division erroneously departed from well-established federal securities law by rejecting the Williamson presumption. The Williamson presumption applies when general partnership interests are alleged to be investment contracts under the CSA. Where the parties’ agreement

purports to give participants rights typical of those possessed by a general partner, there is a strong presumption that the general partnership interests are not investment contracts. Here, it is undisputed that the JVA gives partners partnership powers, so the presumption applies.

Defendants also contended that the division in the first appeal erred by requiring collective venture-specific experience. Under the second Williamson test, a collective lack of venture-specific experience isn’t dispositive; it is relevant, but what ultimately matters is whether the partners have sufficient collective knowledge and experience to intelligently exercise their powers.

Defendants further argued that the trial court erred by narrowly focusing on whether any of the general partners themselves possessed the skills necessary to replace the managing partner.

Under the third Williamson test, the question is whether the managing partner is essentially irreplaceable, considering the nature of the venture and the managing partner’s knowledge and experience, so the trial court’s focus was too narrow.

Defendants also argued that the trial court erred by finding that the general partners’ interests are investment contracts under “other economic realities.” Although the three Williamson tests aren’t exclusive, those tests account for economic realities, and the court should consider other economic realities only if they aren’t adequately accounted for under the Williamson tests.

The judgment was reversed and the case was remanded to re-determine, consistent with this opinion, whether the joint venture interests are investment contracts.

Plaintiff then sued defendants for negligence and wrongful death, and defendants moved to stay the lawsuit and compel arbitration. The district court denied defendants’ motion, finding that compliance with the arbitration agreement was impossible because the agreement specifically referred to using the National Arbitration Forum (NAF) arbitration code, and NAF had left the consumer arbitration business years before.

On appeal, defendants contended that the district court lacked subject matter jurisdiction to determine the enforceability of the arbitration agreement because the parties agreed that an arbitrator would have the power to rule on issues relating to the agreement’s validity, including objections concerning its enforceability. The district court had jurisdiction to determine enforceability of the arbitration agreement because the parties did not plainly and unambiguously empower an arbitrator to decide that issue.

Defendants also argued that the trial court erred by denying the motion to enforce arbitration because despite NAF’s unavailability, another arbitrator could use the NAF Code to preside over the arbitration. A court may deny a motion to compel arbitration where there is no valid agreement to arbitrate, or the issue sought to be arbitrated is clearly beyond the scope of the arbitration provision. Here, the arbitration agreement memorializes the parties’ intention to arbitrate and the rules to govern that arbitration, but it leaves open the possibility that someone other than NAF could conduct the proceedings. Thus, the trial court erred.

The order was reversed and the case was remanded to the district court to compel arbitration.

June 11, 2020

2020 COA 88. No. 18CA2405. Johnson-Linzy v.

Conifer Care Communities A, LLC. Arbitration Agreements—Subject Matter Jurisdiction—Impossibility of Performance.

Defendants manage Amberwood Court Rehabilitation and Care Community (Amberwood Court). Plaintiff signed an arbitration agreement when her husband was admitted to Amberwood Court. Plaintiff’s husband stayed at Amberwood Court for several weeks and passed away shortly after he was discharged.

2020 COA 89. No. 17CA0042. People in the Interest of D.F.A.E. Juvenile Law—Delinquency—Voir Dire—Peremptory Challenge—Evidence—Rape Shield Statute.

A jury found D.F.A.E. (D.E.) guilty of enticement and one count of sexual assault, and the juvenile court adjudicated him delinquent for acts that, if committed by an adult, would constitute sexual assault and enticement of a child.

On appeal, D.E. argued that the juvenile court committed reversible error by not excusing a juror who disclosed relevant information after voir dire but before trial. During voir dire, Juror N answered “no” to questions about being a victim of a crime, specifically sexual assault, sexual contact, or rape. After the jury was sworn, Juror N disclosed to the court and counsel that her daughter had been date raped and became pregnant at age 14. Because Juror N didn’t intentionally withhold the information, and she expressed assurances that she could be fair and impartial, the juvenile court properly exercised its discretion when it allowed her to continue to serve on the jury. Further, even if D.E. would have exercised a peremptory challenge to strike Juror N, that, by itself, would not establish reversible prejudice.

D.E. next contended that the juvenile court abused its discretion by allowing the prosecution to introduce evidence of the victim’s virginity.

Here, there was a single reference to the sexual assault examination notes about last sexual activity, and the court gave an appropriate limiting instruction before the jury heard an audio recording of the detective’s question to D.E. about the victim’s virginity. Therefore, any error in the admission of the virginity evidence was harmless.

D.E. further contended that the juvenile court abused its discretion by barring his evidence that the victim was actively seeking to lose her virginity. The rape shield statute creates a presumption that evidence relating to a victim’s prior sexual conduct is irrelevant. The juvenile court did not abuse its discretion in finding that D.E.’s offer of proof didn’t overcome the presumption that the evidence of the victim allegedly trying to lose her virginity was prohibited by the rape shield statute. Further, this evidence was irrelevant as to whether she consented to have sex with D.E, and the prejudicial effect of the evidence substantially outweighs any minimal relevance.

D.E. also argued that the juvenile court erred by allowing two expert witnesses to improperly bolster the victim’s credibility. However, the brief references to credibility did not substantially influence the verdict or affect the fairness of the proceedings.

The adjudication was affirmed.

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2020 COA 90. No. 17CA0354. People v. Market.

Criminal Law—Sexual Assault on a Child—Statute of Limitations—Tolling—Evidence—Force.

In 1996, 4-year-old A.R. was sexually assaulted by a man she did not know who entered her bedroom through a window. The assault initially remained unsolved. In 2014, the police ran fingerprints from old cases through a national fingerprint database and learned that defendant’s fingerprints from an unrelated burglary matched those found on a screen removed from A.R.’s window on the date of the assault. A jury found defendant guilty of sexual assault on a child by use of force, and he was sentenced to a 24-year term of imprisonment.

On appeal, defendant contended that he could not be prosecuted for A.R.’s 1996 sexual assault because the applicable statute of limitations for the crime expired in June 2006. Two conflicting statutes of limitations applied to defendant’s criminal offense: CRS § 18-3-411(2) imposed a 10-year limitations period for sexual offenses against children and did not contain any tolling provisions. CRS § 16-5-401 also imposed a 10-year limitations period for sexual offenses but included a tolling provision that would apply if a defendant had been absent from Colorado.

In cases where a defendant was absent from Colorado for more than five years, CRS § 16-5-401(2) effectively imposed a 15-year limitations period on sexual offenses. Both sections 16-5-401 and 18-3-411 were amended in 2006 to eliminate a statute of limitations for felony sexual offenses against a child, and those amendments apply retroactively to sex crimes against children for which the statute of limitations had not yet expired as of July 1, 2006.

Defendant did not dispute that he was absent from Colorado for more than five years, so the statute of limitations in his case did not expire until June 16, 2011, and the originally applicable statute of limitations had not expired by July 1, 2006. Therefore, the amendments eliminating a statute of limitations for crimes against children were effective against defendant, and he was properly subject to prosecution for the charged offenses.

Defendant also asserted that there was insufficient evidence to support his conviction

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for sexual assault on a child by force. For the force enhancer under CRS § 18-3-405(2)(a) to apply, there only needs to be some exertion of force applied to the victim’s body; an extra application of force that is distinct from the sexual contact is not required. Based on the evidence, the jury reasonably could have concluded that defendant used force to accomplish or facilitate sexual contact with A.R., and thus the evidence was sufficient to support the conviction for sexual assault on a child by force.

Defendant also contended, and the attorney general conceded, that the mittimus is incorrect.

The judgment of conviction was affirmed and the case was remanded to the trial court to correct the mittimus to reflect that defendant was convicted after a jury trial and sentenced for one count of sexual assault on a child.

2020 COA 91. No. 17CA2237. People v. Mentzer.

Judges—Code of Judicial Conduct—Disqualification—Recusal—Criminal Law—Right to Counsel.

In October 2013 defendant sent sexually explicit messages and images to a Loveland police detective who was posing as a 14-year-old girl. The detective had responded to defendant’s lewd advertisement for a “casual connection” on Craigslist. Defendant was arrested and criminally charged. He moved for substitution of the trial judge, filing two affidavits in support of his motion alleging that (1) the judge served in the Larimer County District Attorney’s Office from 1991 to December 2013; (2) she supervised the sexual assault and crimes against children unit; and (3) she supervised that unit on the date that an attorney in that unit filed the charges against defendant. The judge denied the motion. A jury found defendant guilty of internet luring of a child and sexual exploitation of a child. The trial court sentenced him to sex offender intensive supervised probation for an indeterminate period of 10 years to life and 60 hours of community service.

On appeal, defendant contended that the trial judge erred by denying his motion for disqualification. Before joining the bench, the judge had served in a supervisory capacity over the attorneys who conducted the investigation or prosecution of defendant’s case. Therefore, the judge should have recused herself.

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Defendant also contended that his inculpatory statements to the detective should have been suppressed because he made them after he invoked his right to counsel and the detective did not stop the interrogation (a different judge denied Mentzer’s motion to suppress those statements before this case was reassigned to the trial judge). However, defendant’s two references to “representation” were equivocal and ambiguous; because defendant did not clearly invoke his right to counsel, the detective was not required to stop questioning him.

Therefore, the trial court properly denied the motion to suppress.

The judgment was reversed and the case was remanded for further proceedings before a different judge.

2020 COA 92. No. 18CA2025. People v. Rau. Criminal Law—Use of Deadly Physical Force Against an Intruder—Dwelling.

Defendant lived with his girlfriend in a single-family house that had been subdivided into seven apartments. The apartments shared access to the building’s basement, which was uninhabitable. Tenants could enter the basement through the back door of the house to access controls for their apartments’ water and heat supply.

Defendant confronted a stranger, D.R., sleeping in the basement. Defendant told D.R. to leave and D.R. became aggressive and began to yell and throw things. Defendant told D.R. that he had a gun and would shoot him if he did not leave. When D.R. did not leave, defendant fatally shot him. Defendant was indicted by a grand jury for second degree murder (heat of passion). He moved to dismiss the charge. The district court granted the motion based on CRS § 18-1-704.5(2)–(3), which prevents prosecution of the occupant of a dwelling who uses deadly physical force against an intruder.

As an initial matter, defendant contended that the court’s order granting his motion to dismiss and finding him immune from prosecution was the functional equivalent of an acquittal, so any trial on the charge would violate double jeopardy. However, jeopardy only attaches when a defendant is present at a judicial proceeding aimed at reaching a final

determination of guilt or innocence. Here, jeopardy never attached, so defendant’s rights are not violated by the prosecution’s appeal.

Further, the order dismissing the charge was a final appealable order properly before the Court of Appeals because dismissal of the only charge against defendant ended the action.

On appeal, the People argued that the district court erred in concluding that the basement in defendant’s building was a “dwelling” for purposes of CRS § 18-1-704.5(2)–(3). Here, the basement was part of the building defendant used for habitation and was the only place where defendant could adjust the heat and water controls for his apartment. Therefore, the basement was part of defendant’s dwelling for purposes of the statute.

The People also argued that the evidence was insufficient to show that defendant held a reasonable belief that D.R. might use physical force against him, no matter how slight, or that defendant held a reasonable belief that D.R. committed or intended to commit another crime in addition to D.R.’s unlawful entry into the building. However, the evidence was sufficient to support a finding that defendant reasonably believed D.R. was going to use physical force against him, no matter how slight, and that he reasonably believed that D.R. had committed a crime or intended to commit a crime against a person or property in the building. As a result, this evidence was sufficient to establish defendant’s statutory immunity from prosecution.

The order was affirmed.

2020 COA 93. No. 19CA0125 Guy v. Whitsitt.

Colorado Open Meetings Law—Executive Session.

During four public meetings, the Town Council of Basalt (Town Council) went into executive session to discuss a combination of four statutorily permissible topics: property interests, legal advice, negotiations, and a personnel matter. In its public announcement of what would be discussed in these executive sessions, the Town Council stated that it would discuss property interests, legal advice, negotiations, and personnel matters, and cited the statutory provisions allowing this. No further details were provided.

Plaintiff asserted in a letter that under the Colorado Open Meetings Law (COML), the Town Council had to identify with some degree of particularity the matters to be discussed in executive session, and he requested records of the executive sessions under the Colorado Open Records Act. After his request was denied, plaintiff sued for an order requiring the Town Council to show cause why the records should not be disclosed and a declaration that the Town Council had violated COML’s notice requirement with respect to all four executive sessions. The district court ruled in the Town Council’s favor.

On appeal, plaintiff argued that the district court erred in ruling that the Town Council did not have to announce with particularity the matters to be discussed in executive session beyond merely mentioning the statutorily permissible topics of legal advice and personnel

matters. CRS § 24-6-402 allows members of a local public body to discuss certain topics in executive session closed to the public where such meeting is announced and the particular matters to be discussed are identified in as much detail as possible without compromising the purpose of the executive session.

On the issue of legal advice, the district court relied on the attorney-client privilege to find that no further information was required to be disclosed. However, the attorney-client privilege does not extend to information about the subject matter of the communication, and the Town Council could and should have described at least the subject matter of what was to be discussed. As to personnel matters, the district court relied on privacy interests of the town manager to find that no further information was to be disclosed. But a public employee has a narrower expectation of privacy

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than other citizens, and the Town Council should have at least identified the person who was the subject of the personnel matter to be discussed in executive session. Plaintiff was thus entitled to the recordings and minutes of the executive sessions (if they exist) involving the matters not properly noticed.

Plaintiff also appealed the district court’s order on attorney fees. The district court stated that it would award plaintiff attorney fees for that part of the case on which he might prevail but it never determined an amount, because the parties requested that this determination wait until the appeal concluded. Accordingly, there is no final order with respect to attorney fees.

The portions of the judgment determining that the Town Council did not violate COML’s notice requirements for legal advice and personnel matters were reversed. The portion of plaintiff’s appeal related to the district court’s

attorney fee order was dismissed. The case was remanded with instructions to enter judgment for plaintiff on the parts of the judgment mentioned above and to award him his costs and reasonable attorney fees incurred on appeal.

2020 COA 94. No. 19CA0759. In re Petition of M.M.V. Family Law—Uniform Child Custody Jurisdiction and Enforcement Act—Stepparent Adoption—Jurisdiction.

An Arizona court issued an order dissolving the parents’ marriage and later issued orders restricting father’s parenting time, awarding visitation to the paternal grandparents, and authorizing mother to move to Colorado with the child. Mother later married stepfather.

Stepfather filed two petitions, one to adopt the child and one to terminate the child’s legal relationship with father. Father moved to dismiss the petitions under the Uniform Child Custody

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Jurisdiction and Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA), arguing that the Arizona court had not declined jurisdiction, and therefore the Colorado court lacked jurisdiction.

Mother asked the Arizona court to decline jurisdiction, and the court granted her request.

Based on that order, the magistrate in the Colorado case determined that the Colorado court had jurisdiction to hear the petitions. Thereafter, the Arizona court partially reconsidered its determination, and by agreement of the parties, the Arizona court retained jurisdiction over grandparents’ visitation rights and severed that issue into a separate case.

Shortly thereafter, the Colorado magistrate held a hearing on the petitions. At the start of the hearing, father objected to the magistrate exercising jurisdiction. The magistrate determined that Colorado had jurisdiction, and ruled that termination and stepparent adoption were a single proceeding and the UCCJEA did not apply to adoption proceedings. Moreover, even if the UCCJEA applied, the Arizona court’s reconsideration order was entered without jurisdiction because the magistrate had already begun exercising Colorado jurisdiction by that time. The magistrate terminated father’s parental rights and granted the decree of adoption.

On appeal, father argued that the magistrate lacked subject matter jurisdiction under the UCCJEA and the PKPA. While the UCCJEA does not govern a proceeding that solely involves the adoption of a child, when, as here, the stepparent adoption case also requires the court to consider the termination of parental rights, the UCCJEA governs that portion of the case.

Under the UCCJEA the court that makes an initial custody determination generally retains exclusive, continuing jurisdiction. Before a Colorado court may assume jurisdiction to modify an out-of-state custody order, it must communicate with the issuing court, and a record of the inter-court communications must be made. Here, when stepfather initiated the proceeding to adopt and terminate father’s parental rights, Arizona had a pending child custody proceeding. There is nothing in the record indicating that the magistrate communicated with the Arizona court before assuming

jurisdiction to terminate father’s parental rights.

Therefore, the magistrate lacked jurisdiction to terminate father’s parental rights.

Because the Court of Appeals concluded that the judgment must be vacated so that the magistrate can confer with the Arizona court regarding jurisdiction, it did not review whether the magistrate properly concluded that the Arizona court’s order retaining jurisdiction was not entitled to enforcement under the PKPA. The judgment was vacated and the matter was remanded to the magistrate to determine whether the Colorado court has jurisdiction to issue a termination judgment that modifies the Arizona custody order and, in doing so, the magistrate must communicate with the Arizona court.

2020 COA 95. No. 19CA1277. People in the Interest of S.C. Family Law—Paternity Action—Testimony.

El Paso Child Support Services (CSS) filed a paternity and support action at the request of the State of Missouri. The child’s mother, who apparently resides in Missouri, declined to testify in person because of outstanding arrest warrants in Colorado. She offered to testify by telephone, but the magistrate refused her offer on the sole grounds that she had outstanding arrest warrants. The magistrate then found that mother’s testimony was necessary to proceed with the paternity action and “closed” the case until mother appeared in Colorado or arranged to satisfy the outstanding warrants. The district court affirmed.

CSS appealed and, as an initial matter, the Court of Appeals issued a show cause order directing CSS to explain why the appeal should not be dismissed for lack of a final, appealable judgment or order. A motions division held that this was a final, appealable order. By refusing to allow the child’s mother to testify by telephone or other means other than in-person testimony, the court prevented an adjudication that is mandated by law and deprived the litigants of statutorily protected rights in determining paternity and child support. Because the district court’s order effectively terminated the paternity proceeding, it constituted a final, appealable order, so the Court has jurisdiction.

On the merits, CRS § 14-5-316(f ) requires the court to accept remote testimony, and there is no legal authority prohibiting telephone testimony by mother based on her refusal to appear in person, regardless of her reason for refusal.

The order was reversed and the case was remanded, with instructions, for further proceedings.

June 18, 2020

2020 COA 96. No. 17CA2003. People v. Kern.

Criminal Law—Stalking—Tampering with a Motor Vehicle—Littering—Throwing a Missile—Evidence—Damages—Lesser Included Offense—Concurrent Sentencing—Fines.

Defendant threw plastic bags filled with various foreign substances (including chemicals) onto his ex-wife’s (the victim) residential property and vehicle on multiple occasions. A jury found him guilty of one count of stalking, two counts of tampering with a motor vehicle, six counts of throwing a missile at a vehicle, and six counts of littering.

On appeal, defendant contended that the trial court erred by admitting into evidence his statements about a restraining order against him. The court admitted a redacted audio recording of defendant’s interview with police in which defendant mentioned that the victim had a restraining order against him. The prosecutor played the recording for the jury, and the jurors received a transcript to assist them in following it. The transcript was not admitted into evidence and was not given to the jury during deliberations. Here, the references to a restraining order in the recording were brief and vague, the court gave a limiting instruction, and other evidence against defendant was considerable. Therefore, the statements about a restraining order did not substantially influence the verdict or impair the fairness of the trial.

Accordingly, the trial court did not err.

Defendant also contended that the prosecution failed to prove beyond a reasonable doubt that he caused $1,000 or more in damages to the victim’s truck as to each count of tampering with a motor vehicle. However, the victim provided sufficient evidence that her vehicle

sustained over $4,000 in damages between two separate incidents. Therefore, it is reasonable to conclude that the vehicle sustained at least $1,000 in damages in each incident.

Defendant next contended that his convictions for littering represent lesser included offenses of his convictions for throwing missiles at a vehicle because, by projecting a missile at or against a vehicle, a person necessarily throws or leaves litter on property. Defendant thus maintained that the trial court’s failure to merge the littering convictions with the throwing missiles convictions violated his double jeopardy rights and constituted plain error. Littering is not a lesser included offense of throwing a missile at a vehicle. Accordingly, defendant’s littering convictions should not be merged into his throwing a missile convictions.

Defendant further argued that the trial court erred by imposing both prison sentences and fines for multiple offenses supported by identical evidence: the two tampering with a vehicle counts (prison sentences), the six throwing a missile at a vehicle counts (fines), and the six littering counts (fines). However, the concurrent sentencing requirement of CRS § 18-1-408(3) does not apply to fines imposed as a punishment for conviction. Therefore, imposing prison sentences on the counts of tampering with a motor vehicle and fines on the counts of throwing a missile at a vehicle and littering did not violate CRS § 18-1-408(3), and the trial court did not err.

The judgment was affirmed.

2020 COA 97. No. 18CA0085. People v. Oliver. Criminal Law—First Degree Introduction of Contraband—First Degree Possession of Contraband—Second Degree Possession of Contraband—Challenges for Cause—Expert Testimony—Lay Opinion Testimony—Lesser Included Offense.

A corrections officer conducted a search of defendant’s prison cell and discovered a razor blade affixed to a toothbrush handle (the contraband). Defendant admitted he had made the item but alleged he had only done so to cut holes in his prison uniform to use as pockets. A jury convicted defendant of first degree introduction of contraband, first

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degree possession of contraband, and second degree possession of contraband.

On appeal, defendant argued that the court erred in denying his challenges for cause for four prospective jurors. Three of these jurors expressed concern about defendant’s incarceration and his right not to testify, and they indicated that they could follow the court’s instructions. Therefore, the court did not err in denying defendant’s challenges for cause as to these three. However, the fourth juror expressed concern about defendant’s status as an inmate and indicated that she would be unable to follow the court’s instructions. Therefore, this juror evinced bias sufficient to sustain a challenge for cause, and the trial court erred by failing to do so. But because defendant used a peremptory challenge to remove this juror from the jury and the record does not reflect that a biased or incompetent juror served on the jury, the error was harmless.

Defendant further argued that the prosecution’s witnesses improperly gave expert testimony in the guise of lay witness opinion about the contraband and its use. One witness was the correctional officer who found the contraband, and the second was a Department of Corrections employee who investigated the incident. An ordinary citizen can be expected to know that a razor blade could cause bodily injury, death, or the fear of either. Further, an ordinary citizen could deduce, without the need for specialized knowledge or training, that the purpose of the rag wrapped around the toothbrush was to provide a proper handle.

Thus, the witnesses’ testimony was not outside the scope of CRE 701 and was proper.

Defendant also requested that his conviction for first degree possession of contraband be vacated, and the People conceded this argument.

First degree possession of contraband is a lesser included offense of first degree introduction of contraband.

Defendant also contended that the trial court plainly erred by failing to instruct the jury that second degree possession of contraband is a lesser included offense of first degree possession of contraband. The statutory scheme suggests that the second degree statute does not proscribe a different type of harm than the first degree

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statute; the two offenses differ only as to the severity or risk of injury posed by the type of contraband each proscribes. Therefore, second degree possession of contraband is a lesser included offense of first degree possession of contraband under CRS § 18-1-408(5)(c).

However, the trial court did not plainly err by not instructing the jury accordingly.

The judgment of conviction for first degree introduction of contraband and second degree possession of contraband was affirmed. The conviction for first degree possession of contraband was vacated and the case was remanded for the trial court to correct the mittimus.

2020 COA 98. No. 19CA0786. Bocian v. Owners Insurance Co. Insurance Bad Faith—Underinsured Motorist Benefits—Judicial Disqualification—Expert Testimony—Evidentiary Rulings.

Bocian was injured in a car accident and settled with the at-fault driver’s insurer for its policy limit. Bocian then made an underinsured motorist (UIM) claim with her insurer, Owners Insurance Company (Owners), for medical costs and lost wages. Bocian provided Owners with a report from economist Nehls that calculated $63,600 in wage loss due to the collision. Owners determined that the information Bocian supplied was insufficient to support the wage loss claim and it offered her $15,000 to settle.

Bocian rejected the offer and sued, asserting claims for breach of contract, bad faith breach of contract, and statutory unreasonable denial/ delay of insurance benefits.

Bocian disclosed Nehls as an expert who would testify. Owners moved to strike his testimony and report, arguing that his methodology was not reliable and the testimony would not be helpful to the jury. The court held a hearing on the motion. Hours after the hearing, Bocian filed a motion under CRCP 97 to disqualify the trial judge, alleging the judge had demonstrated actual bias and an appearance of bias against the law firm representing Bocian. The court denied Bocian’s motion, and it later granted Owners’ motion to strike Nehls as an expert and precluded his report from being presented to the jury. Bocian presented a lay opinion at trial that her lost wages totaled $19,200. The jury found that Owners breached the insurance contract

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but had not acted in bad faith or unreasonably delayed payment. It awarded Bocian $90,000.

On appeal, Bocian argued that the judge abused his discretion in denying her motion to disqualify and manifested additional bias during the case that required his disqualification. Under CRCP 97, disqualification is appropriate when the motion and supporting affidavits allege sufficient facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be so, against a party or counsel to the litigation.

Here, most of the factual allegations asserted in the motion were opinions, speculation, and unsubstantiated conclusions, which are legally insufficient to warrant disqualification. The motion to disqualify did not, as a matter of law, allege sufficient facts to support the inference of actual or apparent bias or prejudice to require disqualification. Accordingly, the trial court did not abuse its discretion in denying Bocian’s motion.

Bocian also argued that the trial court erred in excluding Nehls’s expert testimony. Trial courts are vested with broad discretion to determine the admissibility of expert testimony.

Here, the trial court carefully considered the reliability of Nehls’s methodology and whether it would be helpful to the jury. The court made specific findings under CRE 104, 403, and 702 based on appropriate Colorado case law and Nehls’s report, testimony, and supplemental memorandum. Thus, the court did not abuse its discretion.

Bocian next contended that, even if the trial court properly excluded Nehls’s expert testimony, it erred by excluding Nehls’s report from the jury for purposes of her bad faith claim.

While the report could have been admitted for the limited purpose of determining Owners’ bad faith and not the amount of Bocian’s lost wages, this would have been a difficult distinction for the jury to draw. Therefore, to the extent the report could have been admitted with such a limiting instruction, the risk of jury confusion was significant. Under CRE 403 the trial court’s decision to exclude the report was not manifestly erroneous.

Bocian also argued that the trial court erred by allowing Owners to introduce evidence

that Bocian didn’t report the $19,200 amount in lost wages during the claim process. To the extent Bocian was prejudiced by a reference during testimony or closing argument to her not reporting $19,200 in lost wages previously, the jury heard testimony that this fact did not make any difference to whether Owners acted unreasonably. The jury also heard evidence that Bocian sought lost wages during the claim process and submitted an economic analysis of her lost wages to Owners. Thus, even assuming these exchanges constituted error, any error was harmless.

The judgment was affirmed.

June 25, 2020

2020 COA 99. No. 16CA2136. People v. Tran.

Criminal Law—Second Degree Burglary—Possession of Burglary Tools—Hearsay—Business Records Exception—Statement of Party Opponent—Right to Confront Witnesses—Prosecutorial Misconduct—Sentencing—Grave and Serious—Proportionality Review.

Walmart employees caught defendant shoplifting from the store. When the employees apprehended defendant, they looked him up in a database where Walmart records the names of shoplifters. Defendant had been caught shoplifting from Walmart three times before, and Walmart had previously issued him a “trespass notice.” The trespass notice warned him that he was no longer allowed on Walmart property, and if he tried to enter Walmart property, he could be charged with criminal trespass. Defendant had printed and signed his name on the trespass notice acknowledging that he read and understood it. Walmart employees contacted the police, and defendant was arrested.

At trial, the prosecution introduced the trespass notice, among other evidence. A jury found defendant guilty of second degree burglary and possession of burglary tools. The trial court found that defendant had six previous felony convictions, and it adjudicated him a habitual criminal and sentenced him to an aggregate of 24 years in the custody of the Department of Corrections (DOC). Defendant requested a proportionality review of his sentence. The trial court conducted an abbreviated proportional-

ity review and found that four of defendant’s convictions were “grave and serious,” so it denied defendant’s request for an extended proportionality review.

On appeal, defendant contended that the trial court erred by admitting the trespass notice because it contained inadmissible hearsay.

Defendant’s signature on the notice was not hearsay because it was a statement of a party opponent. Walmart’s statement in the notice was hearsay; however, the trial court did not abuse its discretion in admitting this statement under the CRE 803(6) business records exception.

Defendant also argued that the trial court erred by admitting the trespass notice because it violated his constitutional right to confront witnesses. However, the Confrontation Clause does not guarantee a defendant the right to confront himself, and the trial court did not commit plain error in admitting Walmart’s

statement in the trespass notice because the evidence was cumulative.

Defendant also contended that the prosecutor committed reversible misconduct during his rebuttal closing argument. The prosecutor’s remarks challenging defendant’s theory of the case, highlighting the prosecution’s evidence, and using the terms “they” and “them” to refer to defendant and defense counsel, taken in context, were not so improper as to constitute plain error.

Defendant further argued that the trial court erred by denying his request for an extended proportionality review of his sentence. Here, when conducting its abbreviated proportionality review, the trial court found that four of defendant’s previous convictions were per se grave and serious, without analyzing the facts of each offense to determine whether they were grave and serious. Three years after defendant

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was sentenced, Wells-Yates v. People, 2019 CO 90M, significantly changed the law on sentence proportionality, so the trial court relied on several points of law that are no longer valid.

The judgment of conviction was affirmed, the trial court’s order denying defendant’s request for an extended proportionality review was reversed, and the case was remanded for the trial court to conduct a new abbreviated proportionality review.

2020 COA 100. No. 17CA0444. People v. Yachik.

Criminal Law—Sexual Assault on a Child—Res Gestae Evidence—Expert Testimony—Prosecutorial Misconduct.

Defendant was charged with two counts of sexual assault on S.Y., a child. At trial, the People introduced extensive and graphic evidence of physical abuse that defendant perpetrated against S.Y. and asserted that defendant groomed S.Y. and the jury to get away with his wrongdoing.

A jury found defendant guilty as charged. He received consecutive sentences of 16 years to life on each charge.

On appeal, defendant contended that the trial court erroneously admitted evidence that he repeatedly subjected S.Y. to acts of child abuse as res gestae for the charged sexual assaults. Here, the physical abuse evidence was not critical to the jury’s understanding of the charged crimes because nothing in the record linked those incidents in time or circumstance. The physical abuse evidence did not fill in any missing pieces in the “story” of the sexual assaults, nor did it assist the jury in drawing appropriate inferences from the evidence. Because the physical abuse was extrinsic to the charged sexual assaults, it could not be characterized as res gestae.

Therefore, the trial court abused its discretion by admitting the physical abuse evidence as such.

Further, there is a reasonable probability that the graphic, extensive, and detailed physical abuse evidence contributed to defendant’s conviction, so this error was not harmless.

Defendant also argued that the trial court erroneously admitted expert testimony about offender grooming behaviors. The prosecution had a “blind” expert testify about the behaviors, including grooming, of adult perpetrators of sexual abuse. The trial court did not make spe-

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cific findings about the expert’s qualifications.

If the prosecution seeks to admit this expert testimony in defendant’s new trial, the trial court must make specific findings on the record regarding the relevance and reliability of the evidence before deciding whether to admit it.

Defendant further contended that the prosecutor committed misconduct by arguing during closing that defendant groomed the jury.

Essentially, the prosecutor argued that if the jury believed defendant, it was only because he had succeeded in grooming them. This argument encouraged the jury to view defendant in a negative and manipulative light and to decide the case based on personal interest and emotion rather than on a rational assessment of the evidence. The argument was thus improper and violated defendant’s right to due process and a fair trial by an impartial jury. On remand, the trial court should not permit the “groomed jury” comments.

The convictions were reversed and the case was remanded for a new trial.

2020 COA 101. No. 17CA1331. People v. Cooley. Probation Conditions—Right of Familial Association—Sex Offender—Constitutional Law. Defendant entered into a plea agreement under which he pleaded guilty to one count of sexual assault. The district court sentenced him to sex offender intensive supervision probation (SOISP) for a term of 10 years to life. Defendant’s SOISP included additional probation provisions for adult sex offenders. Condition 4 prohibited contact with any children under the age of 18, including his own children. Condition 5 provided that if defendant had incidental contact with children, he was to be civil and courteous and immediately remove himself from the situation.

The probation department filed a revocation complaint alleging that defendant violated conditions 4 and 5 by talking to his young daughter in his car after church. After a hearing, the district court found that defendant had violated these conditions. It revoked his probation and sentenced him to an indeterminate term of two years to life in the custody of the Department of Corrections.

On appeal, defendant argued that the district court plainly erred by finding that he violated

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condition 5 “by not immediately reporting” the contact he had with his daughter, because condition 5 did not require him to immediately report the interaction. Condition 5 did not require defendant to immediately report the interaction, and the factual findings that the district court made do not support its conclusion that defendant violated condition 5’s restrictions.

Therefore, the district court erred, and this error was plain.

Defendant also argued that condition 4 is invalid because it infringes on his fundamental constitutional right to familial association, so his violation of that condition could not serve as the basis for revocation of his probation. Based on the record, there is no immediately apparent connection between defendant’s offense and the need to restrict his familial contact. In situations where the need for such restrictions is not self-evident, probation conditions that infringe on a defendant’s fundamental constitutional rights must be supported by a specific finding that (1) compelling circumstances require their imposition, and (2) less restrictive means are not available. However, nothing in the record supports the condition 4 limitations or establishes that those conditions are the least restrictive available means to accomplish defendant’s probation’s legitimate purpose.

The order was reversed and the case was remanded with directions.

These summaries of published Court of Appeals opinions are written by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs).

They are provided as a service by the CBA and are not the official language of the Court; the CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available on the CBA website and on the Colorado Judicial Branch website.

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Summaries of Published Opinions June 1, 2020

2020 CO 44. No. 17SC116. People in Interest of R.D. First Amendment—True Threats— Social Media.

The Supreme Court reviewed whether the Court of Appeals erred in determining that threatening messages the juvenile defendant posted on Twitter were protected speech under the First Amendment. In so doing, the Court refined its earlier statements of the general framework for distinguishing a true threat from constitutionally protected speech and offered specific guidance for applying that test to statements communicated online.

The Court held that a true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence. In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made. Particularly where the alleged threat is communicated online, the contextual factors courts should consider include, but are not limited to (1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).

The Court of Appeals’ judgment was reversed and the case was remanded with instructions

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to return the case to the juvenile court to reconsider the adjudication under the refined framework.

2020 CO 45. No. 18SC445. People v. Jones.

Statutory Interpretation—Sixth Amendment— Closure—Public Trial—Child Abuse—Person— Rule of Lenity—Structural Error.

The Supreme Court held that the trial court’s exclusion of defendant’s parents during the testimony of two of his children constituted a partial closure of the courtroom. Further, because the trial court made no findings pursuant to Waller v. Georgia, 467 U.S. 39 (1984), before closing the courtroom, and a remand for additional findings cannot remedy that oversight, it violated defendant’s Sixth Amendment right to a public trial. Because that error was structural, Jones is entitled to a new trial.

The Court also concluded that it cannot discern the legislature’s intent regarding a defendant’s criminal liability under the child abuse statute for injury he or she caused to an unborn fetus who is later born alive with the consequences of that injury. Under the rule of lenity, the Court therefore vacated defendant’s conviction for child abuse and concluded that he may not be retried on that charge.

2020 CO 46. No. 18SC686. Richardson v.

People. Waiver—Juror Qualification— Disqualification of a Judge.

The Supreme Court considered whether a trial judge reversibly erred by permitting his wife (Juror 25) to serve on a jury in a criminal case over which he presided. Because defendant did not object to Juror 25 sitting on the jury, the Court concluded that he waived his challenge as to that juror. The Court also concluded that in the absence of a contemporaneous objection,

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the trial judge did not have a duty to excuse Juror 25 on his own or to disqualify himself.

Accordingly, the Court of Appeals’ judgment was affirmed.

2020 CO 47.No. 20SA87. In re Marriage of Wollert. Motion to Restrict Parenting Time— When a Hearing Must Be Held—Particularity Requirement.

In this original proceeding, the Supreme Court considered when a motion to restrict parenting time pursuant to CRS § 14-10-129(4) requires a hearing within 14 days of the motion’s filing. The Court held that the particularity requirement in CRCP 7(b)(1) provides the proper standard to review a § 14-10-129(4) motion. Here, because respondent’s motion to restrict parenting time was sufficiently particular under Rule 7(b)(1), a hearing on that motion was required within 14 days pursuant to § 14-10-129(4). Accordingly, the magistrate erred in not holding a hearing and the district court erred in adopting the magistrate’s order.

June 8, 2020

2020 CO 48. No. 18SC41. People in Interest of J.D. Roles of Juvenile Magistrates—Final Judgment and Order—Deferred Adjudication.

The People sought review of the Court of Appeals’ judgment reversing the district court’s order voiding the juvenile magistrate’s ruling.

The district court had found that the juvenile magistrate lacked jurisdiction to grant J.D.’s motion to withdraw his guilty plea and, further, that J.D.’s sole remedy for a failure of his counsel to render effective assistance in advising him concerning his deferred adjudication was to file a petition with the court for reinstatement of his review rights nunc pro tunc. By contrast,

the Court of Appeals found that the juvenile magistrate had jurisdiction to entertain J.D.’s Crim. P. 32(d) motion to withdraw his guilty plea because it was a motion in a delinquency case that the magistrate had been appointed to hear, and it was not a motion seeking review of any prior order of the magistrate.

The Supreme Court held that because a juvenile magistrate is not prohibited, either by statute or court rule, from revisiting his or her prior rulings, decrees, or other decisions in a case that the magistrate has been properly appointed to hear, unless and until the proceedings have culminated in a final order or judgment, and because a guilty plea, prior to sentencing and entry of a judgment of conviction, does not constitute a final judgment or order, the district court erred in ruling that the magistrate lacked jurisdiction over the juvenile’s Crim. P. 32(d) motion to withdraw his guilty plea.

Accordingly, the Court of Appeals’ judgment was affirmed, although on different grounds.

2020 CO 49. No. 18SC144. Campbell v. People.

Confrontation Clause—Constructive Amendment—Habitual Offender.

The Supreme Court reviewed whether the trial court plainly erred by permitting an expert to testify about a DNA profile developed by a non-testifying analyst. The Court held that any error in allowing the expert to testify about the DNA profile was not plain at the time of trial or the time of appellate review.

The Court also reviewed whether the prosecution constructively amended the habitual offender charge against defendant by mislabeling one of defendant’s prior felony convictions in the charging document. The Court concluded that the prosecution adequately alleged defendant was convicted of a specific felony and proved

that prior conviction as alleged. Accordingly, the Court concluded that the mislabeled prior felony resulted in a simple variance that does not require reversal.

The Court of Appeals’ judgment was affirmed and the case was remanded with directions.

2020 CO 50. No. 19SA106. Jacobs v. People.

Summary Judgment Certification—Summary Judgment Orders—Water Storage—Civil Penalties.

In this appeal from a number of water court orders, defendants contended that the water court erred in (1) granting summary judgment for plaintiffs and partial summary judgment for the third-party defendant; (2) imposing civil penalties for defendants’ violations of an administrative order requiring them to cease and desist unlawfully storing state waters in two ponds on their properties; and (3) certifying its

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summary judgment rulings as final pursuant to CRCP 54(b).

The Supreme Court concluded that the water court properly exercised its discretion in certifying its summary judgment orders pursuant to CRCP 54(b) and thus this appeal was properly before the Court. The Court next concluded that the water court properly granted both plaintiffs’ summary judgment motion and the third-party defendant’s motion for partial summary judgment because the summary judgment record established, as a matter of law, that (1) defendants did not comply with the administrative order requiring them to cease and desist the unlawful storage of water in the ponds on their properties, and (2) the third-party defendant did not breach an agreement between it and defendants that defendants claimed satisfied their obligations under the administrative order. Finally, the Court concluded that the water court properly imposed civil penalties under CRS § 37-92-503(6)(a)(II).

Accordingly, the Court affirmed the water court’s judgment, concluded that both plaintiffs and the third-party defendant are entitled to an award of the reasonable attorney fees that they incurred in this appeal, and remanded this case to the water court to allow that court to determine the amount of fees to be awarded.

2020 CO 51. No. 19SC251. Rocky Mountain Planned Parenthood, Inc. v. Wagner. Premises Liability Act—Predominant Cause—Duty.

In this case arising from the 2015 mass shooting at a Planned Parenthood facility in Colorado Springs, the Supreme Court considered two narrow questions: (1) whether plaintiffs introduced sufficient evidence to establish a genuine issue of material fact as to whether the shooter’s conduct was the “predominant cause” of plaintiffs’ injuries such that the facility’s conduct, even if it contributed to such injuries, could not be a substantial factor in causing them; and (2) whether plaintiffs established a genuine issue of material fact as to whether the facility’s parent organization owed them a duty of care.

As to the first question, the Court concluded, without expressing any opinion on the merits of this case, that plaintiffs presented sufficient

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evidence to establish a genuine issue of material fact as to whether the shooter’s conduct was the predominant cause of their injuries. Thus, the division below correctly determined that summary judgment was inappropriate on this issue.

As to the second question, the Court concluded, as a matter of law, that plaintiffs did not establish that the facility’s parent organization owed them a legal duty. Accordingly, the division correctly affirmed the entry of summary judgment for the parent organization on this claim.

The Court therefore affirmed the judgment of the division below.

2020 CO 52. No. 18SC793. Forest View Co. v. Town of Monument. Eminent Domain— Property—Condemnation—Restrictive Covenants—Takings.

The Supreme Court reviewed whether the Court of Appeals erred in determining that a restrictive covenant was not a compensable property interest for neighboring landowners in an eminent domain proceeding. In so doing, the Court concluded that its decision in Smith v. Clifton Sanitation District, 300 P.2d 548 (Colo.

1956), was not limited to its particular facts, but instead established a broad rule under which neighboring property owners are not entitled to compensation under the Colorado Constitution when a government entity uses land it acquires in a manner that is violative of a restrictive covenant.

Accordingly, the Court of Appeals’ judgment was affirmed.

June 15, 2020

2020 CO 53. No. 18SC765. Manjarrez v. People.

Criminal Acts Against Children—Status as to Child—Position of Trust.

In this case, the Supreme Court considered whether there was sufficient evidence for the jury to convict defendant of sexual assault on a child by one in a position of trust, in violation of CRS § 18-3-405.3(1). CRS § 18-3-401(3.5) provides that one in a “position of trust” includes but is not limited to a person charged with any duty or responsibility for the welfare or supervision of a child. Colorado case law has

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made clear that this duty or responsibility need not be express but can be implied from the circumstances. In People v. Roggow, 2013 CO 70, ¶ 15, the Court held that “a defendant may occupy a position of trust with respect to the victim where an existing relationship or other conduct or circumstances establish that the defendant is entrusted with special access to the child victim.” The Court clarified that a defendant’s “special access” to the victim by virtue of “an existing relationship or other conduct or circumstances” is evidence of an implied duty or responsibility for the welfare or supervision of the victim during those periods of special access.

Because the evidence at trial, viewed in the light most favorable to the prosecution, established that defendant was entrusted with special access to the victim by virtue of his relationship with her family and that he was implicitly responsible for her welfare and supervision at the time of the assault, the Court affirmed defendant’s conviction for sexual assault on a child by one in a position of trust.

2020 CO 54. No. 17SC564. Hoggard v. People.

Constructive Amendments—Jury Instructions— Instructional Error.

In this case, the Supreme Court first considered whether a jury instruction on the charge of attempt to influence a public servant constitutes plain error when the instruction fails to apply an intent requirement to every element of that offense. The Court then considered whether a charge of second degree forgery is constructively amended when the trial court instructs the jury on the elements of felony forgery. The Court first held that even if the instruction in this case on the charge of attempt to influence a public servant was erroneous because it did not apply an intent requirement to every element of the crime, any error was not plain.

The Court also held that although the trial court erred in including language from the felony forgery statute when instructing the jury on the second-degree forgery charge, the instruction did not amount to a constructive amendment and the error was not plain. Accordingly, the Court of Appeals’ judgment was affirmed on different grounds.

2020 CO 55. No. 19SC116. Garcia v. Colorado Cab Co. Torts—Negligence—Rescue Doctrine.

In this case, the Supreme Court considered what is required for a person to qualify as a “rescuer” under the rescue doctrine. The Court held that to qualify as a rescuer, an individual must have intended to aid or rescue a person whom he or she reasonably believed was in imminent peril, and acted in such a way that could have reasonably succeeded or did succeed in preventing or alleviating such peril. Applying this test to the facts of this case, the Court concluded that plaintiff qualified as a rescuer under the rescue doctrine. Because the Court of Appeals concluded that plaintiff did not qualify as a rescuer because he did not physically intervene, the Supreme Court reversed and remanded the case to that Court to address the remaining issues raised on appeal.

2020 CO 56. No. 19SA170. People v. Meagher.

Water Law—Administrative Orders— Injunctions—Motions to Dismiss—Summary Judgment.

Plaintiff brought claims against defendant for injunctive relief, civil penalties, and costs arising from defendant’s failure to submit a form required by Rule 6.1 of Water Division No. 3’s Measurement Rules. The water court denied defendant’s motion to dismiss plaintiff’s claims and subsequently granted plaintiff summary judgment on those claims, and defendant appealed.

The Supreme Court concluded that (1) the water court properly denied defendant’s motion to dismiss because plaintiff’s claims were not mooted by defendant’s belated compliance with Rule 6.1; (2) the water court correctly determined that neither Rule 6.1 nor the pertinent provisions of CRS § 37-92-503 required plaintiff to prove that defendant had a culpable mental state, and therefore defendant’s allegation that he was not at fault for violating Rule 6.1 did not establish a genuine issue of material fact so as to preclude the entry of summary judgment for plaintiff; (3) the injunction entered by the water court was statutorily authorized and conformed to Colorado standards for enjoining further violations of the Measurement Rules; and (4) the water court properly awarded plaintiff costs and fees under CRS § 37-92-503(6)(e).

Accordingly, the Court affirmed the water court’s judgment and remanded the case for determination of the amount of appellate fees to be awarded.

2020 CO 57. No. 19SC448. People v. Harrison.

CRS § 18-1-711(1)(a)—Good-Faith Reporting Requirement—Requirement to Report Acute Condition Caused by Consumption or Use of Drugs or Alcohol—Objective and Subjective Standards—Sufficiency of the Evidence to Disprove Affirmative Defense.

CRS § 18-1-711(1)(a) provides that, if a person suffers an emergency drug or alcohol overdose event, he or she may not be prosecuted, or even arrested, for possession of a controlled substance or possession of drug paraphernalia if someone “report[ed] in good faith [the] emergency drug or alcohol overdose event to a law enforcement officer, to the 911 system, or to a medical provider.” Here, defendant was charged with possession of two controlled substances and drug paraphernalia. Before trial, she filed a motion to dismiss, arguing that she was entitled to immunity because she had suffered an emergency drug overdose event that was reported by another person to the 911 system. Though the district court denied her motion, it allowed her to rely on that statute to raise an affirmative defense at trial. The jury found defendant guilty as charged, but a division of the Court of Appeals vacated her judgment of conviction.

The Supreme Court considered two questions: (1) whether the division correctly construed the requirement in CRS § 18-1711(1)(a) that a person must “report[] in good faith an emergency drug or alcohol overdose event”; and (2) whether the division correctly concluded that the prosecution failed to present sufficient evidence to disprove defendant’s affirmative defense and, consequently, to support her convictions. The Court answered both questions in the negative, holding that the plain language of CRS § 18-1-711(1)(a) requires both that a person report in good faith what he or she subjectively perceives is an acute condition caused by the consumption or use of drugs or alcohol, and that a layperson would reasonably believe that the reported condition AUG US T/S E P T E M BE R 2 0 2 0

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is a drug or alcohol overdose needing medical assistance. Further, assuming without deciding that defendant was entitled to invoke CRS § 18-1-711 as an affirmative defense at trial, the Court concluded that the evidence introduced, when viewed as a whole and in the light most favorable to the prosecution, was sufficient to disprove her affirmative defense and support her convictions. Because the Court of Appeals reached different conclusions on both fronts, its judgment was reversed.

2020 CO 58. No. 18SC789. Sullivan v. People. CRS § 18-1-409(1)—Incorrect Sentencing Range—Direct Appeal—Plea Proviso—“Propriety of the Sentence”—“Propriety of the Sentencing Proceeding.”

The Supreme Court held that “the propriety of the sentence,” as that phrase is used in CRS § 18-1-409(1), does not encompass the manner in which the sentence was imposed (i.e., the propriety of the sentencing proceeding). Because defendant’s appeal concerns the manner in which his sentence was imposed, the Court concluded that it is not barred by CRS § 18-1409(1), even though his sentence fell within the range agreed upon by the parties pursuant to their plea agreement. In so doing, the Court reaffirmed its interpretation of the statutory phrase “the propriety of the sentence” in People v.

Malacara, 606 P.2d 1300 (Colo. 1980). The Court of Appeals’ judgment dismissing defendant’s appeal was reversed.

June 22, 2020

2020 CO 59. No. 18S C572. Pe ople v.

Figueroa-Lemus. Matters Subject to Appeal— Immigration Advisements.

Both the People and defendant petitioned for review of the Court of Appeals’ judgment affirming the denial of defendant’s Crim. P. 32(d) motion to withdraw his guilty plea. The People challenged the appellate court’s jurisdiction on the grounds that until defendant is actually sentenced and judgment of conviction enters, there can be no final judgment from which an appeal would lie. Defendant challenged the appellate court’s ultimate conclusion on the merits that he was not entitled to an advisement

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by his counsel to the effect that he would be detained without bond during the pendency of any deportation proceedings initiated against him by the federal government.

The Supreme Court vacated the Court of Appeals’ judgment. A guilty plea taken pursuant to a statutorily sanctioned stipulation to defer judgment and sentence does not become a final, appealable judgment unless and until the deferral is revoked, sentence is actually imposed, and judgment of conviction enters. Accordingly, defendant was without any immediate right to appeal the denial of his Crim. P. 32(d) motion, and the Court of Appeals was not authorized to entertain defendant’s claim. The Court chose, nevertheless, to exercise its original jurisdiction in this case and found that defendant was adequately advised concerning the deportation consequences of his plea. Therefore, the district court did not abuse its discretion in denying his motion to withdraw.

2020 CO 60. Nos. 20SA126 & 20SA127. People v. Gutierrez; People v. Carrillo-Toledo.

Suppression of Evidence—Statutory Interpretation—Traffic Violation—Fourth Amendment.

The Supreme Court held that CRS § 42-4903(4) requires a driver to activate his or her vehicle’s turn signal before moving left or right to change lanes. Accordingly, when an officer observes a driver activate the turn signal once his or her vehicle’s tires are already partially over the dashed line between lanes, that officer may reasonably conclude that he or she has witnessed a traffic violation and may lawfully stop the vehicle.

Here, the trial court erred when it concluded that the initial traffic stop was unlawful and suppressed evidence of criminality found during the vehicle search as stemming from that unlawful stop. The Court therefore reversed the trial court’s order and remanded the case for further proceedings.

2020 CO 61. No. 20SA154. In re Title, Ballot Title & Submission Clause for 2019–2020 #315. Clear Title Requirement—Single Subject Requirement—Ballot Titles.

In this case, the Supreme Court reviewed the Title Board’s actions in setting the title and the

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ballot title and submission clause for Initiative 2019–2020 #315 (Initiative #315). Initiative #315 proposes to add Colo. Const. art. X, § 22 and to amend certain statutory provisions in Colorado Revised Statutes Titles 24 and 39 to create a new preschool program by reallocating revenue generated by existing state taxes on tobacco products and tobacco litigation settlements and by levying a new sales tax on tobacco-derived nicotine vapor products.

The Court concluded that the title that the Title Board set for Initiative #315 presents a single subject—namely, the creation and administration of a Colorado preschool program funded by state taxes on nicotine and tobacco products. It further concluded that the title satisfies the clear title requirement because it describes Initiative #315’s central features succinctly, accurately, and fairly and in a manner that will not mislead voters. Accordingly, the Court affirmed the Title Board’s actions in setting the title for Initiative #315.

2020 CO 62. No. 20SA136. In re Title, Ballot Title & Submission Clause for 2019–2020 #293. Clear Title Requirement—Single Subject Requirement—Ballot Titles.

In this case, the Supreme Court reviewed the Title Board’s actions in setting the title and the ballot title and submission clause for Initiative 2019–2020 #293 (Initiative #293).

Initiative #293 proposes to add Colo. Const. art. X, § 22 and to amend certain statutory provisions in Colorado Revised Statutes Titles 24 and 39 to create a new preschool program.

The measure implements the new preschool program, in part, by (1) redirecting certain state cigarette and tobacco tax revenue away from local governments that ban selling tobacco or nicotine products and to the new preschool program, and (2) reallocating a portion of the cigarette and tobacco taxes collected under Colo.

Const. art. X, § 22 that are currently allocated to several health-related programs.

The Court concluded that the title that the Title Board set for Initiative #293 presents a single subject—namely, the creation and administration of a Colorado preschool program funded by reallocating existing taxes on, and other revenues derived from, tobacco and

nicotine products. The Court further concluded that the title satisfies the clear title requirement because it describes Initiative #293’s central features succinctly, accurately, and fairly and in a manner that will not mislead voters. Accordingly, the Court affirmed the Title Board’s actions in setting the title for Initiative #293.

2020 CO 63. No. 19SC453. Archuleta v. People.

Criminal Law—Juror Unanimity— Modified Unanimity Instruction—Election—Child Abuse.

In this case involving a charge of child abuse resulting in death, the Supreme Court considered whether defendant was entitled to a modified unanimity instruction requiring that the jurors either unanimously agree that she committed the same act or acts underlying the child abuse charge or that she committed all of those acts.

Because the prosecution charged and tried this case on the theory that defendant had committed the offense at issue by engaging in a single criminal transaction resulting in the child’s death, and because (in light of the prosecution’s theory) the Court saw no reasonable likelihood that the jurors disagreed on which specific act caused the child’s death, the Court concluded that defendant was not entitled to a modified unanimity instruction.

The Court therefore reversed the judgment of the division below and remanded the case with instructions to reinstate defendant’s conviction on one count of child abuse resulting in death.

2020 CO 64. No. 18SC624. People v. Wester-Gravelle. Plain Error—Juror Unanimity— Modified Unanimity Instructions—Election— Forgery.

In this case involving one count of forgery against defendant, the Supreme Court considered whether a Court of Appeals’ division erred in concluding that the prosecution had an obligation to elect the specific document or documents on which it would rely for conviction or, alternatively, that defendant was entitled to a modified unanimity instruction requiring the jurors to agree unanimously that she had committed the same underlying act of forgery or that she had committed all of the underlying acts.

In addressing this question, the Court first concluded, contrary to the People’s assertion,

that defendant did not waive her assertion that either an election or a modified unanimity instruction was required. Turning to the merits, the Court further concluded that the trial court did not plainly err when it did not, sua sponte, require an election or give a modified unanimity instruction here because any error was neither obvious nor substantial.

Accordingly, the Court reversed the judgment of the division below and remanded this case to the Court of Appeals for consideration of defendant’s remaining contentions on appeal.

suppress after finding that deputies conducted an unlawful investigatory stop of the Subaru in which he was a passenger. The Court held that the specific facts, considered together with the rational inferences that could have been drawn from those facts, provided the deputies reasonable and articulable suspicion to believe that the Subaru’s occupants were committing, had committed, or were about to commit a crime. Accordingly, the suppression order was reversed.

June 29, 2020

2020 CO 65. No. 20SA115. People v. Wheeler.

Investigatory Stop—Reasonable and Articulable Suspicion—Seizure—Extrinsic Corroborating Evidence not Required.

In this interlocutory appeal, the Supreme Court considered whether the district court correctly granted defendant’s pretrial motion to

2020 CO 66. No. 18SC817. Rocky Mountain Gun Owners v. Polis. Right to Keep and Bear Arms—Colo. Const. art. II, § 13—Large-Capacity Magazines.

The Supreme Court reviewed whether legislation prohibiting the sale, transfer, or possession

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of a “large-capacity magazine” violates the right to keep and bear arms protected under Colo.

Const. art. II, § 13. Relying on its longstanding test under Robertson v. City & County of Denver, 874 P.2d 325 (Colo. 1994), for examining challenges brought under § 13, the Court concluded that the legislation is a reasonable exercise of the police power that has neither the purpose nor effect of nullifying the right to bear arms in self-defense. Accordingly, the Court affirmed the Court of Appeals’ judgment.

permits non-aggressors to stand their ground when acting in self-defense. Here, the prosecution argued that defendant’s failure to retreat undermined the reasonableness of her belief that she needed to act in self-defense. Because such argument is improper, and because the trial court’s error in permitting that argument wasn’t harmless, the Court affirmed the Court of Appeals’ judgment on different grounds, reversed defendant’s judgment of conviction, and remanded the case for a new trial.

2020 CO 67. No. 18SC708. People v. Monroe.

Prosecutorial Misconduct—Self-Defense—Doctrine of No Retreat.

The Supreme Court held that it’s improper to argue that a defendant acted unreasonably in self-defense in failing to retreat from an encounter before using defensive force. Colorado’s longstanding no-duty-to-retreat rule

2020 CO 68. No. 20SA120. In re People v. Lucy and People v. Meresa. CRS § 18-1-405(6)(g)(I)— Speedy Trial—Tolling—Contested Continuance Due to “Unavailability of Evidence Material to the State’s Case”—Public Health Crisis.

In this original proceeding, the Supreme Court considered whether a trial court may grant the prosecution’s contested request for

a continuance with a tolling of the statutory speedy trial period based on a public health crisis like the COVID-19 pandemic. The Court held that, absent a defendant’s consent, CRS § 18-1-405(6)(g)(I) authorizes a trial court to grant the prosecution a continuance with a tolling of the speedy trial period for up to six months if the prosecution establishes that (1) as a result of a public health crisis, evidence material to its case is unavailable; (2) it has exercised due diligence to obtain that evidence; and (3) there are reasonable grounds to believe that the unavailable evidence will be available on the new trial date. Because the county court erred, the Court made the rule to show cause absolute and remanded the case for further proceedings consistent with this opinion.

These summaries of Colorado Supreme Court published opinions are provided by the Court; the CBA cannot guarantee their accuracy or completeness. Both the summaries and full opinions are available on the CBA website and on the Colorado Judicial Branch website.

Our Courts is a joint activity of the Colorado Judicial Institute and the Colorado Bar Association that provides nonpartisan information programs to adult audiences around the state to further public knowledge and understanding of the state and federal courts in Colorado.

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Orlando Employee Discounts offers exclusive pricing on hotels and vacation homes in or near Disney World and Universal Studios Orlando, along with

discount tickets for Disney World, Universal Studios Orlando, Sea World, and all Orlando-area theme parks and attractions.

Visit www.orlandoemployeediscounts.com/ index-new.

Yoga Pod ■ Multiple studios. Membership for $89, normally $108. Ten-class packs for $140, normally $160. Contact joy.shanley@ yogapod.com.

US Fleet Associates ■ “Simply the best way to buy a new car.”

Typical savings $1,000–$7,100. Call (303) 753-0440 or visit www.usfacorp.com.

INSURANCE ACSIA Partners ■ Premium discount on long-term care insurance to members, their families, and their staff. Email Nathan Blakely at nblakley@acsiapartners.com or call (888) 305-4582.

Geico Insurance ■ Geico Insurance offers high-quality and trusted auto insurance. Visit www.geico. com or call (800) 368-2734.

Guardian Life Insurance Co. ■ Disability, long-term care, life, and health insurance. The Guardian Life Insurance Company of America offers CBA members the highest quality disability income coverage and a 10% discount. Call David M. Richards at (303) 770-9020, ext. 3211, or (877) 402-0485; or visit www.cbadi.com.

Lockton Affinity/ CNA Malpractice Insurance ■ Contact Casey MacDonald at (913) 6525713 to discuss your malpractice insurance needs.

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WRITING FOR

ENVIRONMENTAL LAW

Melanie J. Granberg (303) 572-0050, mgranberg@gcgllc.com EVIDENCE

Lawrence Zavadil (303) 244-1980, larry@lzavadillaw.com FAMILY LAW

Articles submitted for publication in Colorado Lawyer are reviewed and approved by coordinating editors before being scheduled for publication. Coordinating editors are attorneys and legal professionals who volunteer their time and expertise to solicit, review, and schedule articles for publication.

If you are interested in writing an article for Colorado Lawyer or would like to submit a manuscript, please contact the appropriate coordinating editor to discuss your topic. Writing guidelines are available at cobar.org/tcl.

COORDINATING EDITORS FOR SUBSTANTIVE LAW ARTICLES

Curt Todd (Bankruptcy Law) (303) 955-1184, ctodd@templelaw.comcastbiz.net

ALTERNATIVE DISPUTE RESOLUTION

Marshall A. Snider msniderarb@comcast.net

CANNABIS LAW

ANIMAL LAW

Kate A. Burke (303) 441-3190, kaburke@bouldercounty.org

Graham Gerritsen (303) 993-5271, graham.gerritsen@gmail.com Hugh Ilenda (303) 324-8597, hilenda@hotmail.com THE CIVIL LITIGATOR

ANTITRUST AND CONSUMER PROTECTION LAW

Todd Seelman (720) 292-2002, todd.seelman@lewisbrisbois.com

Timothy Reynolds (303) 417-8510, timothy.reynolds@bryancave.com CONSTRUCTION LAW

Leslie A. Tuft ltuft@burgsimpson.com

APPELLATE LAW

Marcy G. Glenn (303) 295-8320, mglenn@hollandhart.com Christina F. Gomez (303) 295-8366, cgomez@hollandhart.com Stephen G. Masciocchi (303) 295-8000, smasciocchi@hollandhart.com

Mark Cohen (303) 638-3410, mark@cohenslaw.com CRIMINAL LAW

Judge Adam Espinosa adam.espinosa@denvercountycourt.org ELDER LAW

David P. Steigerwald (719) 634-5700, dps@sparkswillson.com

Rosemary Zapor (303) 866-0990, rose@zaporelderlaw.com

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GOVERNMENT COUNSEL

Mary Elizabeth Geiger (970) 947-1936, megeiger@garfieldhecht.com HEALTH LAW

Casey Frank (303) 202-1001, letters@caseyfrank.com Gregory James Smith (303) 443-8010, gjsmith@celaw.com IMMIGRATION LAW

David Harston (303) 736-6650, david.harston@EAHimmigration.com David Kolko (303) 371-1822, dk@kolkoassociates.com INTELLECTUAL PROPERTY LAW

K Kalan (720) 480-1500 or (571) 272-8516, kmkalan@yahoo.com William F. Vobach (303) 656-1766, bill@vobachiplaw.com

CONTRACT LAW

BUSINESS LAW

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Halleh T. Omidi (303) 691-9600, hto@mcguanehogan.com Courtney J. Leathers Allen (303) 893-3111, allen@epfamilylawattorneys.com

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JUVENILE LAW

Jennifer A. Collins (720) 944-6456, jennifer.collins@denvergov.org Sheri Danz (303) 860-1517, ext. 102, sheridanz@coloradochildrep.org LABOR AND EMPLOYMENT LAW

John M. Husband (303) 295-8228, jhusband@hollandhart.com

NATURAL RESOURCES AND ENERGY LAW

Jack Luellen (720) 866-7520, jluellen@dmclaw.com Charlotte Powers charlotte.powers@coag.gov

COORDINATING EDITORS FOR DEPARTMENT ARTICLES ACCESS TO JUSTICE

Kathleen M. Schoen (303) 824-5305, kschoen@cobar.org

“As I See It” Opinion Articles

PROFESSIONAL CONDUCT AND LEGAL ETHICS

Stephen G. Masciocchi (303) 295-8000, smasciocchi@hollandhart.com Joseph G. Michaels (720) 508-6460, joseph.michaels@coag.gov

AS I SEE IT

CL Opinion Articles Committee c/o sklein@cobar.org JUDGES’ CORNER

Christopher D. Bryan (970) 925-1936, cbryan@garfieldhecht.com

Hon. Stephanie Dunn (720) 655-5235, stephanie.dunn@judicial.state.co.us

TAX LAW

LAW PRACTICE MANAGEMENT

Adam Cohen (303) 295-8000, acohen@hollandhart.com Steven Weiser (303) 333-9810, sweiser@fostergraham.com

Jeff Weeden (970) 819-1763, jlweeden@weedenlaw.com

REAL ESTATE LAW

LEGAL RESEARCH CORNER TORT AND INSURANCE LAW

Jennifer Seidman (303) 779-0077, jseidman@burgsimpson.com

Robert Linz (303) 492-2504, robert.linz@colorado.edu

David W. Kirch (303) 671-7726, dkirch@dwkpc.net Emily Bowman (303) 671-7726, ebowman@dwkpc.net

J. Ryann Peyton (303) 928-7750, r.peyton@csc.state.co.us MODERN LEGAL WRITING

John Campbell (303) 871-6461, jcampbell@law.du.edu

WATER LAW

Kevin Kinnear (303) 443-6800, kkinnear@pbblaw.com

TECHNOLOGY IN THE LAW PRACTICE

Joel M. Jacobson (303) 800-9120, joel@rubiconlaw.com

WORKERS’ COMPENSATION LAW

Kristin A. Caruso (303) 297-7290, kristin.caruso@ritsema-lyon.com Thomas L. Kanan (303) 759-5066, ext. 226, tkanan@wgfs.org YOUNG LAWYERS DIVISION

Amanda T. Huston (970) 225-6700, ahuston@cp2law.com

Colorado Lawyer is now accepting opinion articles whereby members can express their ideas on the law, the legal profession, and the administration of justice. Please note that the publication is mindful of its role in promoting civility and professionalism and reserves the right to reject any article; submissions that include personal attacks, contain language that may be deemed defamatory, or are inconsistent with the objectives of the CBA will not be considered. Full guidelines are available at www.cobar.org/tcl.

General Interest Articles MENTORING MATTERS

TRUST AND ESTATE LAW

MORE WAYS TO CONTRIBUTE

WELLNESS

Sarah Myers (303) 986-3345, smyers@coloradolap.org WHOOPS—LEGAL MALPRACTICE PREVENTION

Christopher B. Little (303) 773-8100, clittle@montgomerylittle.com

If you would like to write an article in an area not listed on these pages, please contact Jodi Jennings at jjennings@cobar.org (substantive law articles) or Susie Klein at sklein@ cobar.org (department articles, columns, and special series).

Colorado Lawyer is interested in publishing general interest articles from our members. “The SideBar” is a place to: ■ share your unique experiences as a lawyer ■ discuss a helpful skill ■ talk about a law-related topic that is important to you ■ offer practical advice to fellow attorneys ■ share your law-related “war stories.”

SideBar articles should take a lighter look at the law or talk about your perspective; articles on particularly divisive topics will not be considered.

Please send articles or article ideas to Susie Klein at sklein@ cobar.org for consideration.

Desired article length for these columns is between 1,000 and 3,000 words. Publication is at the discretion of the editorial staff.

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UNDER OATH | MEMBER SPOTLIGHT

Nicki Cerasoli Nicki Cerasoli is on the Board of Directors for the Asian Pacific American Bar Association of Colorado and is a past member of the CBA Board of Governors.

PROFILE Hometown: Avery, Missouri Law School: University of Colorado Lives in: Englewood, Colorado Works at: Linden Law Partners, LLC Practice Areas: Mergers and Acquisitions, Emerging Companies, Venture Capital and Private Equity, Corporate Law CBA Member Since: 2006–11, 2015 to present

What do you like the most about your practice area?

I enjoy the variety. I work with business owners and other stakeholders on a mix of mergers and acquisitions, financings, and commercial transactions, some straightforward and some very complex.

We counsel founders and closely held businesses to large companies, executives, and more, across a variety of industries. It’s satisfying to help such a diverse range of clients identify and carry out strategic solutions to their legal issues, and I get to learn something new about each business and its industry with each deal.

What is your favorite place to escape to in Colorado?

The mountains, of course! We enjoy exploring new places together as a family. In the city, my favorite places to escape to are the Denver Botanic Gardens and Sweet Cow Ice Cream.

What’s the most random job you have ever had?

I have held many jobs (including hotel call center reservationist, Starbucks barista, and elementary school teacher), but the most random job was probably working as the coat check at a small theater in Philadelphia.

How do you find work/life balance?

I set boundaries, prioritize what’s most important to me, and “don’t sweat the small stuff,” as they say. I’ve found that using time chunking has been effective, especially while working from home during the COVID-19 pandemic. Open and consistent communication both at home and at work is also crucial.

Would you like to be featured in Under Oath?

Email Jessica Espinoza-Murillo at jespinoza@cobar.org for a questionnaire.

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What do you consider your greatest achievement?

Raising my two children. I love my family and being a mom most of all.

What is your favorite thing to cook?

I traveled to my birthplace and met my sisters in Korea for the first time last fall, and am enjoying learning how to cook some Korean food. Although I am a beginner, it is easing my cravings for the delicious flavors of Korea.

When you aren’t working, how do you like to spend your time?

I like to explore mountain trails, play cards and board games with my kids, garden, and try to read a book. As a working parent with young kids, I find it a challenge to finish an entire book.

What is an unconventional lesson you’ve learned about the practice of law?

I’ve learned that it’s okay to take a nontraditional path in your legal career. I’ve also learned that we need to define for ourselves the meaning of “success” as a lawyer, which I believe makes fulfillment in the practice of law more attainable. It’s a personal journey and I’ve been fortunate to have the support of like-minded people along the way.

Why are you a dues-paying member of the CBA? I believe that we can accomplish so much more together. I value the programming, resources, and benefits the CBA offers to its members as well as the opportunities it provides for lawyers from across the state to be heard, engaged, and represented in matters of importance to the legal profession and our broader community.

Continue Exploring Community CBA!

Collaborate Strike up conversations with members, share best practices, and upload documents and links.

Learn Find out about upcoming CBA and CLE events.

Network Request and make referrals, get insight from colleagues about legal issues, and expand your professional network.

Log on and explore community.cobar.org.

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