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The CBA has partnered with Affinity Consulting Group to bring you a year-round portal offering: Monthly webinars | Technology tutorials and resources Checklists, tech reviews and recommendations | Plus a whole lot more Ability to ask questions via cba community

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TABLE OF CONTENTS May | Vol. 49, No. 5 | 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

Jessica Espinoza advertising@cobar.org

Inverse Condemnation Claims after Knick

MEMBERSHIP SERVICES/ ADDRESS CHANGES

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

Kathryn Starnella, Chair Denver—(303) 813-6589 kstarnella@warllc.com Chris Levkulich, Vice Chair Denver—(303) 861-4154 clevkulich@lektax.com Joseph G. Michaels, Secretary Denver—(720) 508-6460 joseph.michaels@coag.gov

PAGE

36

James S. Witwer, Immediate Past Chair Denver—(303) 892-7478 james.witwer@dgslaw.com

FEATURES ENVIRONMENTAL LAW

A Guide to Colorado Sand and Gravel Permitting by Kent Holsinger and Todd Ohlheiser

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

REAL ESTATE LAW

Amy C. DeVan Denver—(720) 625-5697 devanamy@gmail.com

Inverse Condemnation Claims after Knick

Adam Espinosa Denver—(720) 337-0831 adam.espinosa@denvercountycourt.org

The Promise and Peril of Litigating in Federal Court by Jennifer Lake

David W. Kirch Aurora—(303) 671-7726 dkirch@dwkpc.net

PAGE 36 LABOR AND EMPLOYMENT LAW

Mind the Gap

Practical Solutions to Minimize Pay Equity Claims by Christine Lyman, Lonnie Giamela, and LaLonnie Gray

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

TRUST AND ESTATE LAW

Nonjudicial Settlement Agreements under the CUTC

Jennifer Seidman Denver—(303) 792-5595 jseidman@burgsimpson.com

What Are the Limits?

Patrick R. Thiessen Arvada—(303) 420-1234 prthiessen@friearndt.com

by Carol Warnick

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Jami Vigil Colorado Springs—(719) 452-5401 jami.vigil@judicial.state.co.us Amy Larson CBA Executive Director and CEO

ON THE COVER: Chris Carry took this long exposure photo along the Jim Creek Trail just outside of Winter

Park. Carry is a commercial litigator at Nelson Mullins Riley and Scarborough in Denver.

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PRICE 10 CENTS

BARRISTERS BENEFIT CANTEEN SATURDAY, AUG. 29, 2020

LOCATION: Wings Over the Rockies Air & Space Museum, 7711 E Academy Blvd., Denver

TICKET

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WELCOME 4

CBA President’s Message

FROM THE COURTS 58

Court Business

Greater Colorado Makes a Greater CBA

by Kathleen Hearn Croshal, with contributions from Ian D. McCargar

66 Office

6

A Letter from MVL

8

Just Joined

Welcome New Members

Colorado Supreme Court Rules Committees

of the Presiding Disciplinary Judge

Executive Council

Disciplinary Case Summaries 70

OFFICERS

US

Court of Appeals for the Tenth Circuit

Kathleen Hearn Croshal President Jessica Brown President-Elect

Summaries of Selected Opinions DEPARTMENTS 10

Legal Research Corner Fake News: How to Spot It and How to Avoid It

by Madeline Cohen

14

Judges’ Corner

The 8th Judicial District’s Wellness Court: Hope for Individuals with Mental Health Issues

by Julie Kunce Field

18

Mentoring Matters

Crowdsourcing Mentorship: Creating a New Culture of Mentoring in the Legal Profession

by J. Ryann Peyton

22

The SideBar

74 Colorado

Court of Appeals

87 Colorado

Supreme Court

John Vaught Immediate Past President

Summaries of Published Opinions

Ryann Peyton Vice President First Region

Summaries of Published Opinions

Alexis King Senior Vice President Second Region

ALSO IN THIS ISSUE 90 Attention

Photographers

92 Membership 94

Judson Hite Vice President Third Region

Perks

Writing for Colorado Lawyer

Cobea Becker Vice President Fourth Region

UNDER OATH 96

Keith Vance Vice President Fifth Region

Member Spotlight

Leslie German Vice President Sixth Region

Student Inventions

Leslee Balten Vice President Seventh Region

by Mark Levy

AROUND THE BAR 48 Bar

52

COUNCIL MEMBERS

Melanie Bartlett At Large Member

News

News From the CBA, Local Bars, and More

Amanda Hopkins At Large Member

by Jessica Espinoza

Ian McCargar At Large Member

Lawyers’ Announcements

Michelle McCarthy Section Representative

56 In Memoriam

Kevin McReynolds DBA President Kimberley Neilio At Large Member Yamini Piplani Grema Diversity Bar Representative Bonnie Schriner Section Representative Ted Tow Section Representative ©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.

Danaé Woody CBA YLD Chair

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

Greater Colorado Makes a Greater CBA BY K AT H L E E N H E A R N C RO SH A L , W I T H C ON T R I BU T IONS F ROM I A N D. MC CA RG A R

A

s a former judge and practitioner in Pueblo, I’m aware of a longheld perception that the CBA is “Denver-centric.” Some of this is attributable to simple demographics, and some of it is a function of the size and topographical complexity of Colorado. That said, the CBA is committed to reducing barriers to engagement, as envisioned in the “E” element of the CBA’s 20/20 strategic plan: Engage under-represented and statewide populations by improving and ensuring their inclusion at all levels of the CBA, by building symbiotic relations with specialty bars, by using technology to better reach members statewide, and by strengthening local bar associations.1 In this month’s message, I’ll discuss two measures the CBA has recently implemented to help us achieve this important goal.

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The Greater Colorado Task Force The Greater Colorado Task Force (GCTF) was officially launched at the CBA Board of Governors meeting in December 2019. The GCTF will explore the elimination of barriers to participation in program, leadership, and communication for CBA members who choose to practice outside the Denver metro area, thereby improving the CBA’s value and relevance to its membership. I’ve identified the GCTF’s mission as a top priority during my term as CBA president. The task force comprises the chair and eight additional members. I have appointed Ian McCargar of Windsor, Colorado, to serve as chair. The other GCTF members are: ■ Danita Alderton, Pueblo ■ Andrew Boyko, Montrose ■ Melissa Decker, Minturn ■ Courtney Holm, Edwards ■ Paul Hurcomb, Colorado Springs ■ Dan St. John, Fort Collins

■ Tamara Sullivan, Alamosa ■ Charles Willman, Glenwood Springs The GCTF is convening monthly at locations across Colorado in 2020. The inaugural meeting was held in late January in Denver, and subsequent meetings took place in Pueblo, Vail, and Fort Collins. The remaining meetings are scheduled for: ■ Friday, May 29—Alamosa ■ Friday, June 12—Colorado Springs ■ Friday, July 24—Denver (CBA offices) ■ Friday, August 14—Windsor ■ Friday, September 25—Montrose ■ Friday, October 9—Glenwood ■ Friday, November 13—CBA offices (remote) Each of these meetings includes room for conversations with local bar members and representatives of the judiciary in each locality. We hope these listening sessions contribute real first-hand support for the outcomes of GCTF. The task force chair will provide periodic updates to the CBA Executive Council (EC). The schedule for completion of GCTF’s mission targets late 2020 for a draft report and recommendations to the EC in January 2021, with a final report and recommendations presented to the EC sometime in the first quarter of 2021. The EC-approved report and recommendations will then be presented to the CBA Board of Governors at its June 2021 mid-year meeting. Because the task force’s work extends into the presidential term of President-Elect Jessica Brown, she has pledged to support the task force’s work through its conclusion. I welcome anyone interested in GCTF’s work to attend the scheduled outreach meetings and to contact the task force members listed above. I urge our members in Greater Colorado especially to speak and be heard in this effort so the task force may consider the needs and desires of all CBA members who practice outside the Denver metro area. Even if you are unable to attend the GCTF listening sessions, your thoughts are welcome. Please call or email GCTF Chair Ian McCargar at (970) 674-2492 or imccargar@windsorgov.com. I support the GCTF’s work and look forward to the results of this initiative.


Resources for Local Bar Leaders Another initiative focused on engaging and serving Greater Colorado is the launch of a CBA Community forum for local bar leaders. If you are currently in a leadership or leadership-elect position in your bar association, you have been added to the Local Bar Leaders community. As you hopefully know, CBA Community is a modernized forum for, among other things, posting bar information, local bar news, events, and job postings. It’s also a great place to ask questions of and communicate with other local bar leaders.2 The Local Bar Leaders forum will provide the opportunity to connect with bar leaders across the state and hopefully open the communication channels between bar leaders. The CBA also provides information for local bar leaders on its Local Bar Association web page.3 This page has information about each local bar, including links to the local bar’s web

page (where available), as well as an online form for joining the local bars of your choice. Additionally, this page has been updated to provide access to the Local Bar Handbook, a list of CBA regional vice presidents, a map of CBA regions, a best practices guide for CBA regional vice presidents, and a list of Court of Appeals judges and judicial district liaisons by judicial district. The CBA is also compiling a Local Bar Leaders Directory, which will be accessible from this page once it’s completed. You can contact Lindsey O’Brien, the CBA’s local bar relations program coordinator, with any other information that you think would be helpful to have on the Local Bar Association web page. Please also inform Lindsey of any changes within your local bar so we can keep the information on this page current and relevant. Lindsey can be reached at lobrien@cobar.org or (303) 824-5310.

Conclusion We hope these measures will help the CBA better unite and engage all of its members. The CBA is stronger and better positioned to serve its members when participation comes from all corners of our state!

NOTE S

1. CBA REFOCUS 20/20 Plan, www.cobar.org/ About-the-CBA/Governance. 2. CBA Community, https://community.cobar. org/home. 3. Visit www.cobar.org/Local-BarAssociations, or select the “Local Bar Associations” quick link in the left-hand menu at www.cobar.org.

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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WELCOME | CBA PRESIDENT’S MESSAGE

Dear Members, As we wake every morning to more breaking news and statistics, we’re reminded that this COVID-19 pandemic is changing the world forever. In light of this daunting news, we struggle to keep our families, friends, elderly, and especially our vulnerable loved ones safe. We need to remind ourselves that this is only temporary and that it too will pass. The real question is: How do we respond? How will our generation be remembered in the history books, and how will our community face a pandemic that it has never in its history needed to face? At times we all champion one cause or another, often leading to division and reduced resources. Today, we share a sense of commonality. We are all facing the same dangers, fears, frustrations, anxieties, and feelings of being overwhelmed and all-consumed; the difference is that some of us will be impacted in ways that the rest of us cannot truly comprehend. This is not about who needs what from whom; this is about each of us choosing to help rather than remain immobilized. Humanity shines brightest when its best steps forward. Last month, as Governor Polis announced the launch of the new Colorado website www. HelpColoradoNow.org, he stated, “A crisis can bring out the best in us.” The website is a central hub for the provision of volunteers and donations to respond to the coronavirus pandemic. There are, of course, other ways to help. You can give blood if you’re able,1 support local businesses by purchasing gift cards safely from your home computer, or donate food and other items to your local food bank,2 church, or temple.

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As lawyers and legal professionals, we should reflect on how fortunate we are. Many of us are finding tools to safely work remotely and modifying our business models to adjust as new challenges confront us. It’s natural for us to be compassionate and seek out ways to help our community; however, you may wonder what that help should look like. If we have the resources to help financially, we should. Consider donating to the Colorado Legal Foundation,3 Colorado Legal Services,4 Metro Volunteer Lawyers,5 or another local nonprofit. But we can do more! Even before the coronavirus crisis, it was reported that 140 million poor to low-wealth Americans could not afford a $400 economic emergency.6 And a 2018 US Census Bureau report found that 38.1 million Americans were living in poverty (about $16,900 in annual income or less for a two-person household).7 Metro Volunteer Lawyers has always had a mission to bridge the gap in access to justice. Sadly, all indicators suggest that the community we continue to serve will need our assistance now more than ever. The coronavirus and its attendant economic implications may disproportionately hurt the poor. Social distancing does not have to get in the way of volunteering or giving or lending a helping hand. MVL continues to work remotely to assist the indigent population, but we are only as resilient and impactful as our volunteers. We are grateful to so many of you who have given us your time and expertise, and we need you now more than ever. We have over 50 clients and families that need your direct representation

in various areas of the law. We ask that you take these cases pro bono during this time of particular need. We are now scheduling all of our mediations, family law post decree, and family law unbundled consultations by phone. We continue to provide full staff support and malpractice insurance for all of our volunteers. As legal professionals, we have a unique skill. Please sign up to help at www.denbar.org/ mvl. Many of the larger Denver law firms have been monitoring needs and opportunities with legal service providers and nonprofits across the country and are collaborating with colleagues at the Association of Pro Bono Counsel.8 A full list of volunteer opportunities can be found on the CBA website.9 If you are looking to help in the broader legal context, be sure to visit and sign up at the newly launched Succession to Service website.10 The goal of the Succession to Service program is to establish a structured, statewide program for Colorado’s experienced lawyers and judges to partner with nonprofit organizations, courts, and other public interest entities to influence the continuing need for equal access to justice. Colorado lawyers and judges are matched with nonprofit organizations, legal services programs, and the courts to provide essential legal assistance to underserved populations. Using their specialized skills and experience to do engaging pro bono work, participating lawyers become active members of the legal community and help Colorado’s courts and service providers expand and enhance the pro bono legal services they offer.


We would be remiss if we failed to discuss self-care. It’s crucial that we not only look after others in our direct and larger community, but that we also look after ourselves. Take the time to meditate and exercise and laugh. Be mindful in your daily lives. Use available tools and resources to help you through more difficult

days. Seek out support through the CBA, the Colorado Lawyers Assistance Program,11 or Colorado Lawyers Helping Lawyers.12 In these times it is easy to fall into feelings of being ineffective and powerless. Don’t allow others or yourself to sit by aimlessly. What kind of person do you want to be? Ultimately, we all

want to make an impact on the lives of others, to be somebody and to know that our lives mean something. Here is your chance. Seize it!

pandemic compounds dire situation for poor Americans,” ABC News (Mar. 27, 2020).

9. www.cobar.org/for-members/pro-bonoopportunities.

7. US Census Bureau, “Income and Poverty in the United States: 2018” (Sept. 2019), https:// www.census.gov/content/dam/Census/library/ publications/2019/demo/p60-266.pdf.

10. www.successiontoservice.org.

Sincerely, Toni-Anne Nuñez MVL Director

N OTE S

1. See, e.g., www.vitalant.org. 2. See, e.g., www.foodbankrockies.org. 3. www.legalaidfoundation.org. 4. www.coloradolegalservices.org. 5. www.denbar.org/mvl. 6. Hutchinson, “‘Lot of fear’: Coronavirus

11. www.coloradolap.org 12. www.clhl.org.

8. www.apbco.org.

METRO VOLUNTEER LAWYERS MAKE A DIFFERENCE Volunteer with MVL today.

denbar.org/mvl I 303-830-8210

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WELCOME | CBA MESSAGE JUSTPRESIDENT’S JOINED

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 connect with other members on CBA Community, check out the CBA’s new podcast series, and follow us on LinkedIn, Twitter, Facebook, and Instagram.

Stephanie Acquario Lou Aguiar Albana Alla Erika C. Anderson Ethan A. Anderson Ashlyn E. Angell David L. Antognoli Shawn A. Arnold Daniel R. Auerbach David Austin Omeed M. Azmoudeh Amy Baldwin Ellie Bane Daniella E. Barbero Marilyn Barrett David P. Beitchman Joshua A. Berman Fernando Berti de Azevedo Barros Kara Birney Nicoli Bowley Julia Bowman Jay W. Brown Nancy Bruggeman Ashley L. Brunswick Jordan R. Buck Robert Bucknam Alison F. Burke Jeanne R. Burton Graeme W. Bush Jonathan B. Bush Robert J. Bush John M. Butler Patricia Byrd

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Edward O. Byrne I Bryan Carlson Russell Carparelli Emma Carroll Ashley B. Carter Anna A. Chehtova Samuel W. Clopton Mackenzie Cohen Jennifer Collity Jonathan M. Craig April Y. Crain Mark D. Crapo Julia L. Cronin Bryna J. Dahlin Katie S. Dean David C. DeRosa Mairead K. Dolan Timothy R. Dore J. Andrew A. Douglas Bryce E. Downer Jessica L. Dowty Tuong Vi T. Duong Aaron T. Eisner Samantha Ellingson Amy M. Feinberg Lena Fields Roberto F. Fleitas III Hillary E. Frame Perry E. Friedlander Cristobal Galindo Otto Gallaher David C. Gartenberg Nicholas L. George Amy Gjesdahl

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Richard Gonzales Morton J. Grabel Lyle I. Greenberg Brian B. Gregg Nicole Griffard Logan Grizzell Jonathan Groves Regina Gutierrez Victoria Guzman Clarence O. Haeker Gerald I. Hannel Jacqueline T. Harlow Christopher D. Harrison Jennifer Hart Karen K. Hatfield (McCalla) Isabelle Hayes Russell B. Hedman Alex J. Higgins Huntington G. Himes Jeffrey W. Hodges Ashlee N. Hoffmann Scott A. Hooper Darrian M. Hornedo V Christopher J. Hunter Robert A. Huntsman Daniel A. Jacobs Makenna Johnson Jeremy D. Johnston Jennifer Jones Ashleigh M. Kaspari Gregory A. Kass Bennett S. Keller Courtney L. Kelley Courtney Keyes

Jennifer A. Kilpatrick Michael Y. Kim David C. Klosterboer Jared F. Knight Daniel J. Kramer Megan H. Kucera Nicholas J. Larson Brendan T. Leanos Nova R. Levante Evan Lonergan Rebecca Lyford Cailee Mangan Benjamin J. Mann Margaret K. Marron Isabella C. Martinez Colin J. Mayberry David C. McDonald Kimberly B. Medina Joeana Middleton Christopher Mignacca Steven H. Miller Amber M. Moore Benjamin M. Mueller Erin E. Mullen Ian C. Murray Christopher L. Nocholaides Natalie Norcutt Bridget K. O’Hickey Georgina Olazcon Mozo Brett M. Paben IJay Palansky Sam Parker Satesh S. Patel Deborah Pearson


Casady L. Pickar Mark C. Pirozzi Kathryn K. Polonsky Lindsey Powers Jonathan A. Pritchard David H. Rankin Jr. Eric M. Rauch Angel E. Rotger Sabat Jacob M. Rubinstein Anne Ruggles Linsey A. Ruhl Rachell M. Ruiz Daniel M. Runion Brian T. Ruocco Michael S. Sager Renga Samy Brian Sanger Erwin R. Schmidt IV John P. Schmitz

Collin Scott Thomas W. Severin Amanda Shear Barbara Sidelnik Alana D. Siegel Jennifer S. Sim Gowthamm Sivanessarajaah Stuart K. Skok Elizabeth C. Smith Erica E. Smith Marlin Smith Kevin M. Strait Timothy Sycks Lorenzo Thayn Corey Thompson Patrick E. Thompson Jessica E. Trillo David J. Turner Rich Turpen

Reinaldo B. Valenzuela Jr. Jasna Veledar Michael S. Vernon Anna Villarreal Stoney K. Vining Ryan W. Walno Violet M. Warner Breanne Wernars Tracy L. Williams Bryce Wilson Zachary L. Windham Susan M. Wissink Andrea Wolff Joshua R. Woolf Parul Yadlapati Erin Yagos Miranda D. Yancey Casie C. Youngberg Anne A. Zeckser

CLE ABROAD 2020 Open to Members and Friends of the Colorado Bar Association

PORTUGAL October 11–16, 2020

Experience Portugal’s Old World allure and New World splendor, exploring Lisbon’s and Porto’s rich history, diverse wines and culinary scenes. Our immersive program will engage with local scholars, attorneys and artists who will shed light on Portuguese and EU legal and political systems, international relations, art history and architecture.

MOROCCO

October 22–30, 2020 November 12–20, 2020

Morocco’s location at the crossroads of Europe and Africa has endowed the country with a rich culture and heritage. Be part of our journey through Casablanca, Fes, Rabat and Marrakesh to sample Morocco’s diverse food and music, learn about Morocco’s social fabric and political systems, and gain a better understanding of its culture.

Pre-Register for Fall 2020 to hold your spot. No deposit is required. • Portugal (October), mail chi.mp/cle-abroad/portugal • Morocco (October), mail chi.mp/cle-abroad/morocco-october • Morocco (November), mail chi.mp/cle-abroad/morocco-november

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DEPARTMENT | LEGAL SUB TITLE RESEARCH CORNER

Fake News How to Spot It and How to Avoid It BY M A DE L I N E C OH E N

“A

lie can travel half-way around the world before the truth gets its boots on.” This quote is said to be attributed to Mark Twain, although there’s no written or oral record of that fact. The quote and its potentially false attribution are a reminder that news travels fast (and can easily go viral) but is not always accurate. We are a society of information consumers, now more than ever. However, information overload can make it more difficult to make decisions and to differentiate the real from the fake. This is also true for the consumption of news. In the past, when most people relied on print newspapers for their news, the expectation was that a reader would get the news from the day before. Now, the expectation is instant delivery

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of the news through online newspapers, news outlets, and social media sites. This goes handin-hand with the reader’s desire to reinforce his or her existing beliefs and disregard those that are contradictory. Digital news consumption is high, especially among millennials, who rely heavily on social media sites like Facebook, YouTube, and Twitter for their news.1 According to a Pew Research survey, 68% of adults report getting at least some of their news from social media.2 However, 57% assume that the news they receive will be “largely inaccurate.”3 Inaccurate news is not just an inconvenience but can also damage organizations that rely on it. In a law firm environment, reliance on bad data or false facts can lead to the loss of a client, a case, or a good reputation.

What is Fake News? Fake news is essentially the dissemination of news stories that are not true, either because they are fabricated or because they are not verifiably accurate.4 Upon closer examination, fake news is not just false stories, but belongs to a larger universe of misinformation and disinformation. Misinformation is usually created by accident, with no intent to deceive. Conversely, disinformation is created to intentionally deceive, mislead, or force allegiance to a particular agenda or cause. Both misinformation and disinformation obscure the truth and can be easily shared and spread thanks to social media networks.5 According to Claire Wardle of FirstDraftNews. com, there are seven types of misinformation and disinformation: fabricated content, imposter content, misleading content, manipulated content, false context, false connection, and satire or parody.6 Fabricated content is totally false and intended to do harm through deception. Imposter content makes readers believe that it is from a verifiable or credible source, but it is not. Imposter content is often in video form because it’s easy to splice together snippets of truthful videos to create something false. Misleading and manipulated content take credible content and


change it to deliberately deceive and mislead. Once upon a time, it might have been known as false advertising. False context forces readers to take credible information out of context so that the details become unclear. False connection is what drives “clickbait” on websites because it plays on readers’ curiosity. Finally, content that is satirical or a parody is meant to be humorous but can easily be misinterpreted as serious. There is often no good way to verify the content of a satirical news site, making it difficult to tell if a story is real or fake.7 How Did We Get Here? The creation and existence of fake news is certainly a problem, but that problem grows exponentially when readers share news or information that is false or misleading. What motivates people to share news or information, both fake and real? According to Jeff Sonderman, digital media fellow at the Poynter Institute, there are five primary motivations for sharing content: ■ altruism—bringing valuable and entertaining content to others; ■ self-definition—sharing to define ourselves to others; ■ empathy—sharing to strengthen our relationships; ■ connectedness—sharing to get credit for being a good sharer; and ■ evangelism—sharing to spread information about something we believe in.8 In a society of sharers, how do we keep from being part of the proliferation of fake news? We need to slow down the intake of information and give concentrated thought to whether the information we are receiving is true, false, or somewhere in between. According to The Verge, a multimedia project started in 2011 that examines how technology will change life for the masses, there are four steps we can take to fight false online information.9 The first step is to figure out when to be worried, meaning it’s important to be able to spot red flags. If something seems too amazing or too horrifying to be true, it just might be false. Be on the lookout for news that overtly appeals to strong emotions, asks you to spend money, or plays on a sense of partisanship or bias.

The second step is to make sure the URL or link is legitimate. Part of looking more deeply into the source of a news story is to determine where it comes from. Details easily get lost in a repost or multiple reposts, so checking the origin of the information is paramount. Try to find the original date of the story before it was reposted (or a timestamp) and see whether the original story cites to reputable sources. If it’s unclear where the story originated, try using multiple search engines to find additional coverage of the news story or any sort of identifying source information. Sometimes it’s difficult to tell whether online information is fake or deceptive. Instead of being blatantly or

The creation and existence of fake news is certainly a problem, but that problem grows exponentially when readers share news or information that is false or misleading. ridiculously false, online information can leave out simple details or make small details overly important. Sometimes online news can feature a mix of fake and real information, leading to further confusion. Step three is to find the context of the information by determining who is providing the information, how the information is presented by different news outlets, and whether the story is actually satire. The last step is to determine what the news story or information really means. You certainly can’t or even shouldn’t believe everything you read, but assuming that everything online is fake

is also a mistake. Strive to determine whether important facts have been left out of a story or if the story is missing that larger picture. Slow down and think about the consequences of sharing a story that is false or misleading and why a particular story should or should not be shared. Anybody can be fooled by online content, even reputable news sources and highly skilled researchers. Online news and information disseminated through social media is not always black and white. The existence of false, misleading, or deceptive information does not mean that nothing is true or that everything online is fake. However, it does mean that researchers need to think critically about what they find online, what they share and repost, and what news sources they rely on. How Do You Spot Fake News? Lawyers are trained to view defendants as innocent until proven guilty; however, if fake news were a defendant, it would likely be the other way around. A healthy dose of skepticism can be an asset when researching news sites. Law librarians are trained to evaluate information for authenticity and accuracy and often teach courses to law students and others on information literacy.10 Spotting and identifying fake news can be time consuming and confusing, but there are some basic guidelines researchers should keep in mind: ■ Check the source of the information, either by clicking the “About Us” or “Contact” pages. If the site does not have these pages, that is a red flag. ■ Do a quick biography check on the author or organization writing and/or posting the story. ■ Do a quick Google search of the website and see what others have said about it. ■ Look at the URL to see if it looks unusual or unexpected. ■ Don’t be lured in by sensational headlines or outrageous claims, and make sure the author did not bury the lead just to get clicks. ■ Is the story reported by other reputable news sites? Make sure to read multiple stories to check sources. M AY 2 0 2 0

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DEPARTMENT | LEGAL SUB TITLE RESEARCH CORNER

■ Sloppy writing, poor grammar, and misspelled words are a red flag that a site or story is fake. There are many resources that can help researchers evaluate online information and news sites to determine whether they are real or fake. Several of these resources are discussed below. The CRAAP Test The CRAPP test was developed by Sarah Blakeslee at California State University–Chico in 2004.11 The test is divided into five parts: currency, relevance, authority, accuracy, and purpose. When evaluating currency, a researcher must consider the timeliness of the information, which can be determined by looking at the publication date, whether the information has been recently updated, whether the information is current for the topic, and—for online sources—whether the links are functional or broken. A resource’s relevance hinges on how important the information is to the research. Researchers should consider who the intended audience is and whether the education level is appropriate for the intended audience. Authority is the source of the information and whether the author is qualified to write about the topic. Researchers should make sure that the author’s credentials or the organizations affiliations are readily available. Researchers should evaluate the author’s credentials and investigate what the URL (for an online source) or the publishing house (for a print source) reveals about the source. Accuracy underlies the other components and is the most important because it involves analysis of the “reliability, truthfulness, and correctness of the content.”12 The language and tone should be free of bias and emotion and there should be no spelling, grammar, or other errors. Lastly, the purpose is why the information exists. Researchers should make sure that the purpose of the information is clear (i.e., it is meant to inform, teach, entertain, persuade, etc.). It is also necessary to determine whether the information is factual and objective or if it is opinion, propaganda, biased, or trying to further an agenda. The CRAAP test is meant to help researchers determine if sources are accurate and reliable.

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It is neither foolproof nor static, as different criteria may have more or less importance as the situation warrants. The IFLA Guide to Spotting Fake News The International Federation of Library Associations and Institutions (IFLA) is the leading international body representing the interests of library and information services and their users. It is the global voice of the library and information profession.13 In response to the

growing existence of “fake news” in everyday parlance, IFLA created the above infographic to serve as a guide and checklist for researchers in determining the accuracy and veracity of news and other information.14 The infographic has since been translated into 36 different languages. FactCheck.org FactCheck.org15 is a project of the University of Pennsylvania’s Annenberg Public Policy Center, a nonprofit organization that acts as a consumer


advocate for voters. Its stated mission is “reduc(ing) the level of deception and confusion in U.S. politics.”16 By monitoring the content of television advertisements, debates, speeches, interviews, and news releases, FactCheck.org helps to increase public awareness of what is fake information and what is truthful. The website allows researchers to ask questions and to search an archive of previously asked questions, on a variety of topics. FactCheck.org is one of several organizations that works with Facebook to debunk misleading information that has been posted to social media sites. There are also sections that focus on false or misleading scientific claims (SciCheck), viral claims, and on-air statements. Researchers can also perform Google-like natural language searches to find information about topics in the current news cycle, such as the coronavirus or the 2020 presidential race. Snopes.com Snopes.com bills itself as “the internet’s go-to source for discerning what is true and what is total nonsense.”17 The site’s team of researchers has been fact checking for over 20 years, and the site boasts an impressive archive based on topics, as well as ratings (e.g., true, mostly true, a mixture, mostly false, false, unproven, misattributed, outdated, or scam). Snopes tends to focus its fact checking and fake news debunking on hot topics, the top 50 rumors circulating on the internet, and current news stories. Snopes.com researchers list the materials they use to check facts so users can further verify information. It is also one of the only fact-checking sites that includes satire and humor, and has been since it launched in 1994. Urban legends are often humorous stories that are told as the truth and grow from there. The proliferation of online news and social media sites means that satirical information is presented in snippets or out of context and is difficult to identify; it’s the 21st century version of playing “telephone.” What Does the Future Hold? Enhanced video editing and AI technologies that swap people’s faces, synthesize and manipulate images, or recreate voices will further blur the

lines between what is real and what is fake (or constructed). Fake videos, or “deepfakes” as they are referred to by lawmakers and intelligence officials, are “fabricated media produced using artificial intelligence . . . in which individuals appear to speak words and perform actions, which are not based on reality.” 18 Spotting these deepfakes in the future will become as essential as spotting fake news is now. While the platform is different, researchers can still use the techniques outlined in this article to evaluate video for accuracy and veracity: consider the source, the creator, and the context. Conclusion Many factors influence how we process the material we are exposed to, and the modern digital information landscape has significantly impacted those factors. A critical eye will always be important in the fight against fake news and deceptive information.

Madeline Cohen is the assistant director for the Westminster Law Library and an associate professor in University Libraries. Her scholarly interests include mediation, library management, health law and policy, and governmental systems. Professor Cohen joined the Westminster Law Library after serving as the director and circuit librarian for the US Courts Library for the Tenth Circuit in Denver. Prior to her work as a law librarian, Professor Cohen worked as a policy analyst with the National Conference of State Legislatures. She holds a BA in French and an MA in library and information studies from the University of Wisconsin–Madison, and a JD from the University of Denver Sturm College of Law. Coordinating Editor: Robert Linz, robert.linz@ colorado.edu

NOTE S

1. Shearer and Matsa, “News Use Across Social Media Platforms 2018,” Pew Research Center (Sept. 10, 2018), https://www.journalism.org/2018/09/10/news-use-across-social-media-platforms. 2. Id. 3. Id. 4. University of Michigan Library, “Fake News,” Lies and Propaganda: How to Sort Fact from Fiction, https://guides.lib.umich.edu/fakenews. 5. Affelt, All That’s Not Fit to Print: Fake News and the Call to Action for Librarians and Information Professionals 13 (Emerald Pub. 2019). 6. Wardle, “Fake News, It’s Complicated,” First Draft (Feb. 16, 2017), https://firstdraftnews.org/latest/ fake-news-complicated. 7. Id. 8. Sonderman, “5 reasons people share news & how you can get them to share yours,” Poynter Institute (July 19, 2011), https://www.poynter.org/reporting-editing/2011/5-reasons-people-sharenews-how-you-can-get-them-to-share-yours. 9. Robertson, “How to fight lies, tricks, and chaos online,” The Verge (Dec. 3, 2019), https://www. theverge.com/2019/12/3/20980741/fake-news-facebook-twitter-misinformation-lies-fact-check-howto-internet-guide. 10. “As ALA defines it, information literacy is a set of abilities requiring individuals to ‘recognize when information is needed and have the ability to locate, evaluate, and use effectively the needed information.’ To be information literate, then, one needs skills not only in research but in critical thinking.” https://literacy.ala.org/information-literacy. 11. Meriam Library, California State Library–Chico, The CRAPP Test, https://libguides.csuchico.edu/c. php?g=414315&p=2822716. 12. Affelt, supra note 5 at 61. 13. https://www.ifla.org/about. 14. https://blogs.ifla.org/lpa/files/2017/01/How-to-Spot-Fake-News.pdf. 15. https://www.factcheck.org. 16. https://www.factcheck.org/about/our-mission. 17. https://www.snopes.com. 18. Affelt, supra note 5 at 107.

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DEPARTMENT | JUDGES' SUB TITLE CORNER

The 8th Judicial District’s Wellness Court Hope for Individuals with Mental Health Issues BY J U L I E K U NC E F I E L D

T

he felony menacing charge was not a surprise, under the circumstances. Carl was in the convenience store insisting that he was an FBI agent and that the clerk was under orders to cooperate with him by first giving him cigarettes and then hiding him from “them.” When the clerk tried to reason with him, Carl pulled a hammer out of his pants and threatened to bash the clerk’s head. Carl was arrested and facing felony charges for what was clearly a mental health crisis as much as it was a crime. Carl was facing up to three

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years in prison. But he had another option—one that would address his mental health issues and allow him to get treatment, find a job, reunite with his family, and make amends to the clerk whom he had terrified. Carl had the chance to be supervised by Wellness Court, the 8th Judicial District’s mental health problem solving court.1 Carl represents just one of the 34 graduates of Wellness Court, an innovative problem-solving court that provides healing and hope for those who participate. This article discusses the work of Wellness Court.

The Need In 2005, Alternatives to Incarceration for Individuals with Mental Illness (AIIM) started as a heightened probation program for individuals with mental health issues facing misdemeanor charges. The program was overwhelmed with participants, and though an option for low-level offenders, AIIM was asked to add and supervise more high-risk individuals. Because AIIM did not have the resources to handle more individuals, especially those with significant mental health issues and corresponding felony charges, it became clear that something more was needed for offenders with greater needs. Enter Wellness Court. Wellness Court started in 2014 as a partnership between Larimer County and the 8th Judicial District Court to address the challenges these high-needs individuals face when they enter the criminal justice system. Focused on those individuals charged with felonies or misdemeanors that arise because of mental health issues, Wellness Court applies a proven problem-solving court model to these most challenging cases. Often, an individual with mental illness who is facing criminal charges enters the “revolving door” of arrest, incarceration, release, probation, revocation of probation, arrest, and further incarceration.2 And because the defendant’s underlying mental health issues have not been addressed, that revolving door continues unabated. The Wellness Court’s services and resources are designed to interrupt this cycle and provide a higher level of probation supervision and oversight that includes medication, therapy, basic needs support (such as help finding housing, employment, and benefits), and a community of professionals and peers who create a supportive web of assistance and inspiration. In the five-plus years that the program has been operating, Wellness Court has reduced jail bed days for our clients by a staggering 20,690 days.3 All that said, demand is not being met. Working together and sharing staff, Wellness Court and AIIM are currently at capacity with a combined 70 clients. We have more people interested in joining the program than we can serve.


WELLNESS COURT: STATISTICS THROUGH 2019 Total number of clients served

155

Number of graduates

34

Men served

112

Women served

43

Number of referrals processed

581

Jail bed days used year before entry into Wellness Court

24,163

Jail bed days used after entry into Wellness Court

3,473

Jail bed days reduced by

20,690 days

Average incoming LSI-R score4

35

Average end LSI-R for graduates

24

The Team The Wellness Court team comprises a presiding judge (myself ), a problem-solving court coordinator, a dedicated division clerk, the district attorney, the public defender, representatives and therapists from the local community mental health program, case managers, a psychiatric nurse practitioner, probation officers, and law enforcement representatives from every agency in Larimer County. The team also has the support of a nonprofit program that provides clients essential items such as furniture or baby items, on an as-needed basis. Screening and Acceptance Before a client is accepted into the program, the Wellness Court team conducts a thorough criminal history and mental health review. The program is intensive, and clients must choose to participate. Potential clients can be referred by anyone (e.g., family members, defense attorneys, district attorneys, probation officers, or victims). Referred clients sign releases of information and are screened to determine if they meet admission criteria for the program (i.e., they have a severe and persistent mental illness such as bipolar disorder, schizophrenia, schizoaffective disorder, combat-induced post-traumatic stress disorder, or major depression) and that they live in Larimer County and are charged with a felony or misdemeanor there. Some charged offenses, such as crimes of violence or a sex

offense where sex offender treatment is required, disqualify the applicant from the program. Almost every applicant has a co-occurring drug or alcohol issue. The mental health professionals review mental health records and interview the Wellness Court applicant, and the team votes on whether to accept the applicant into the program, based on the admission criteria and the client’s desire to participate in the program. Once accepted, the defendant can be sentenced into Wellness Court probation or can enter a guilty plea or a deferred sentence agreement with the prosecution that requires successful completion of Wellness Court as a condition of probation. The Program Wellness Court has four phases and generally takes about two years to complete. Clients (not “defendants”) gain privileges and autonomy with each phase. It is an intensive program. Clients are expected to come to “café” twice daily, Monday through Friday, and once on Saturday. Unlike regular probation, where a probationer is expected to seek out different providers for mental health and drug treatment, drug testing, medication provision, court-ordered classes, and other probation requirements, café is a “one stop shop.” At café, clients meet with the nurse practitioner for prescribed medications, take medications that have been prescribed, take required drug tests, meet with therapists

and their probation officer, talk with their basic needs case manager to address housing or employment issues, and socialize with other clients and staff. Individuals with mental illness often isolate themselves; café provides a place to socialize and an opportunity for staff to observe clients and identify any potential medication interactions or mental health deterioration, or just to check in. Every week, clients come to court and have an opportunity to discuss with me how their week has gone, what challenges they have faced, what successes and celebrations should be noted, and whether an intervention or a sanction is appropriate. As you can see, Wellness Court demands a lot of the participants. But each client has an individualized plan. We grade on a curve and expect clients to perform according to their unique abilities at a particular point based on their mental health condition and symptoms, their stage of sobriety, and their developmental capacity. We try hard not to give individual clients more than they can handle, while still demanding accountability and expecting compliance with Wellness Court requirements. As part of the final phase, each client prepares and presents a final project. Those projects are as powerful as they are personal. Clients have shared stories about their decade of homelessness and drug use before Wellness Court. They share the number of days, months, or years they have been sober, and how their lives have changed because of it. They share their booking photos and compare them with current pictures of their new, healthy selves. They have told us of reunions with family members who had previously disowned them. They have presented original music and artwork that depicts the harm they’ve caused with their crimes and how much they’ve grown since being part of Wellness Court. Many participants share that they would have been dead on the street if not for Wellness Court. When all four phases have been successfully completed, the client graduates from Wellness Court in a community celebration that includes cake, peer comments, and family members. For many Wellness Court graduates, this marks the first time in their lives that anyone has told them they’ve done something well. M AY 2 0 2 0

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DEPARTMENT | JUDGES' SUB TITLE CORNER

The Experience Wellness Court sessions are unlike other criminal court sessions and are meant to be encouraging, embracing, and supportive, while still providing consistency and accountability. For instance, when a client enters the program, I greet them with the following message: “Welcome to Wellness Court! We’re glad that you’re here. Please remember that you’ve been hand-picked to be part of this program, and we can’t wait to see you use this opportunity to succeed!” The courtroom itself is set up to minimize trauma. The public defender and the district attorney sit together, and I step down from the bench to talk with clients and give them rewards (and high-fives, and sometimes pinky-swears). There’s a therapist on hand in court to meet individually with clients if something is triggering. Court opens with soothing classical music and closes with a song selected by a client who has done well the prior week. Clients are called by their first names, and they each spend a few minutes talking with me oneon-one. If things have gone well, the client can “fish”—and draw a reward. Rewards can include snacks, personal hygiene items, a day off of programing, an inspirational quote, or gift cards to restaurants or stores. A powerful reward to a client can be something as simple (but as moving) as a standing ovation, in which every person in the courtroom rises to their feet and applauds the client. There is frequently laughter, sometimes tears, and occasionally dancing. The key component of any problem-solving court generally, and of Wellness Court in particular, is the clients’ interactions with the judge.5 I spend hours meeting with the team members before our court sessions to get updates about each client’s current challenges and successes. The three to five minutes that I spend talking with each of the Wellness Court clients in court is the best and most inspiring part of my week. Conclusion While Wellness Court is obviously not a complete solution to the challenge of individuals with mental health issues who are facing criminal liability, it is a beacon of hope for those in the program and to those in the community who

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are increasingly aware of the need to address mental health issues. Wellness Court can serve as a model for communities that are struggling with individuals with mental health issues who are caught up in that revolving door of incarceration. I invite you to contact us to learn more about Wellness Court and to come and see Wellness Court in action. I can promise that there will be music, and maybe even dancing.

Julie Kunce Field is the presiding domestic relations court judge for the 8th Judicial District Court (Fort Collins), where she oversees a variety of cases, including felonies, significant civil disputes, family law, and dependency and neglect cases. Judge Field helped to found and now oversees the Wellness Court. Coordinating Editor: Judge Stephanie Dunn, stephanie.dunn@judicial.state.co.us

NOTES

1. Carl’s name and the facts of his case have been changed to protect his privacy. 2. 17% percent of adults booked into jails (31% of women and 15% of men) have a serious mental illness; 65% of adults in US corrections systems have a substance use disorder; and 72% of adults with serious mental illnesses in jail also had co-occurring substance use disorders. CSG Justice Center et al., “Judges’ Guide to Mental Illnesses in the Courtroom,” https://csgjusticecenter.org/ wp-content/uploads/2020/02/judges-guide-to-mental-illnesses-in-the-courtroom.pdf. The incidence of serious mental illness in jail is high when compared to the incidence of mental health and serious mental health challenges in the general population: 19.1% of US adults experienced mental illness in 2018 (47.6 million people); 4.6% of US adults experienced serious mental illness in 2018 (11.4 million people); and 3.7% of US adults experienced a co-occurring substance use disorder and mental illness in 2018 (9.2 million people). National Alliance on Mental Illness, Mental Health by the Numbers, https://www.nami.org/Learn-More/Mental-Health-By-the-Numbers. See also CSG Justice Center and American Psychiatric Association Foundation, “On the Over-Valuation of Risk for People with Mental Illnesses” (Fall 2015), https://csgjusticecenter.org/mental-health/ publications/on-the-over-valuation-of-risk-for-people-with-mental-illnesses (noting that an “estimated two million people with serious mental illnesses are booked into jail each year, making prevalence rates for people with serious mental illnesses in jails three to six times higher than for the general population. Almost three-quarters of these adults have co-occurring substance use disorders. Once incarcerated, they tend to stay longer in jail and are at a higher risk of recidivism upon release than individuals without these disorders.”). 3. As of 2018, Colorado had 76 problem-solving courts. But because helping individuals who need to address mental health issues can require more oversight over clients than what is required of a typical drug- or DUI-court participant, there are only seven mental health problem-solving courts in Colorado. See Colorado Judicial Branch, Problem Solving Courts, https://www.courts.state.co.us/ Administration/Unit.cfm?Unit=prbsolcrt. 4. The “LSI-R” (Level of Supervision Inventory-Revised) is an actuarial assessment tool designed to identify the offenders’ risks and needs with regard to recidivism. The LSI-R is a scale of 0 to 54 that seeks to classify an offender’s risk of re-offending and identify their individual criminogenic needs. 5. Problem-solving courts work because they incorporate key components that have proven to be effective, including: ■ integration of drug and alcohol treatment, mental health treatment, case management, intensive supervision, and judicial oversight; ■ early identification of eligible participants and prompt placement in the court program/ intervention; ■ judicial interaction with each participant on a frequent and regular basis; ■ a nonadversarial, coordinated team approach to communication, case planning, and responses to participant compliance; ■ use of sanctions and incentives as a coordinated strategy of contingency management; ■ access to the appropriate level of evidence-based treatment and case management services; ■ monitored abstinence measured by frequent and random drug and alcohol screens; ■ development of partnerships with all participating service organizations and written agreements where appropriate; ■ process and outcomes evaluations used to measure the achievement of program goals and gauge effectiveness; and ■ continuing interdisciplinary education to promote effective court planning, implementation, and operations. Colorado Judicial Branch, Colorado Problem Solving Courts Best Practice Manual (Feb. 2014), https://www.courts.state.co.us/Administration/Custom.cfm?Unit=prbsolcrt&Page_ID=804.


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DEPARTMENT | MENTORING SUB TITLE MATTERS

Crowdsourcing Mentorship Creating a New Culture of Mentoring in the Legal Profession BY J. RYA N N PE Y T ON

T

here’s no such thing as a self-made lawyer. All of us are where we are today because other people helped us along the way. But while mentorship is essential to every lawyer’s success, lawyers don’t form long-term professional relationships the way we used to. Such relationships are still immensely valuable, but they’re not always realistic in the modern law practice. As a result, lawyers must look beyond traditional mentorships and take a more individualized approach to mentoring that harnesses the power of the community. What’s Hindering Mentorship? New lawyers starting their own practices and those looking for work have a huge need for

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mentorship. But traditional legal mentorships aren’t as prevalent as they used to be. One reason is that today’s lawyers often don’t stay at the same place for very long. Another is that the emphasis on billable hours makes it hard for lawyers to dedicate non-billable time to mentoring. Lawyers need a convenient way to learn from and connect with veteran lawyers that doesn’t demand a substantial investment of time from the mentor. Recognizing this need, almost every major law firm, corporate legal department, and government law office (including most smaller and midsize legal employers) has created some type of formal mentoring initiative. But many of these initiatives lack the resources necessary to match hundreds or thousands of lawyers

with mentoring partners and help these new relationships thrive. Thus, many of these formal mentoring programs provide only a limited benefit to the mentee. To help fill the gap, many bar associations and nonprofit legal assistance organizations have developed formal mentorship programs to supplement legal employer mentoring programs. Most of these programs have focused the mentorship in the area of professional responsibility and ethics. But most new lawyers (especially those starting their own practices) rank their needs for mentorship as follows (from most to least important): 1. general business development 2. law practice development 3. substantive legal issues 4. local procedural processes 5. civil procedure 6. professional responsibility.1 Overall, formal mentorship programs have not been very successful because they lack the nimbleness to respond to new lawyer mentoring needs. All of this points to the need for a fresh approach to legal mentorship. Developing a New Culture of Mentoring It’s easy enough to set up lunches or “coffee chats” with colleagues and simply hope that a mentoring relationship will flourish from there. However, lawyers who take this kind of approach to mentoring miss the mark when it comes to sustainability. For lawyers to reap ongoing benefits from mentorship, they must weave mentorship more broadly into the way they work and interact on a daily basis. Every lawyer is embarking on a career where the pathway is not always obvious and success is not guaranteed. It’s important for lawyers to follow the lead of scrappy, young entrepreneurs and create a personal culture of mentoring that connects them to peers in different environments and provides exposure to fresh ideas and new ways of thinking. So, do as the startups do and crowdsource your mentorship. Crowdsourcing, in short, is maximizing the power of many. The idea behind crowdsourcing


is that instead of having one resource, you have many resources at your disposal. It may be time to let go of the idea (fantasy) that a single great mentor will materialize and put you on the path to success. It’s more likely that by leveraging the broader community, you will gain more insight, advice, and counsel than a single mentor could ever provide. The key? A willingness to put your authentic self out to your crowd. Harnessing Your Crowd If you’ve ever solicited advice, counsel, and constructive criticism from peers, colleagues, managers, and others, you’ve practiced elements of crowdsourcing. You can use this same technique to cultivate a new crowd (network) that can provide you with the ideas, knowledge, and information you need to make decisions in your law career. Follow these steps to harness the power of your crowd.

sharing skills and insight with you, provide them with your expertise and participate in mentoring opportunities when they arise naturally within your community. The more you encourage this behavior in your crowd, the better. And remember, the benefit of crowdsourced mentoring is that there is no prescribed role of mentor or mentee. Every member of the crowd, veteran or novice, has experience to share and insight to impart. Don’t allow your age, practice experience, or professional stature to limit your perception of what you can model and contribute to your crowd. Empower Others to Act One way to embrace mentorship in your daily interactions is to seek opportunities to connect and encourage people to share their knowledge. For instance, if you have a colleague interested in learning to effectively self-promote and you have

another colleague who is great at it, connect the two and ask your “subject matter expert” to coach the other. Emphasize within your community the benefit of asking for and receiving help from others. In a culture of mentorship, everyone should be giving and receiving help regularly. While this informal day-to-day empowerment can be extremely effective, it is sometimes not enough to build the crowd you need. So parallel to these efforts, it is critical to engage in activities that will support multiple mentoring opportunities. This includes participating in formal mentoring and networking groups, and creating a meaningful space in your life to support these efforts. Listen and Learn As with data, the advice that your crowd gives you every day is useless to you unless you capture (listen and absorb) it by using good

Find Your Crowd Your crowd will shift over time. It must be continuously refreshed, and sometimes a light spring-cleaning will also be in order. Not everyone in your vast network is a suitable member of your crowd. Don’t fall into the trap of believing that the most insightful members of your crowd will have achieved a certain measure of success in your professional area of focus. Instead, ask yourself: “Is this person someone I want to emulate?” “Do I trust their judgment?” “Do they bring a new perspective to my inquiry?” If the answer to any of these questions is yes, that person is likely a suitable candidate for your crowd. Think outside of the box and don’t be afraid to think outside of the profession. Look to peers, colleagues, bosses, clients, family, friends, professors, and acquaintances. Model the Behavior You Want to See Putting out what you want to get back is indispensable to the success of any relationship. The way you speak, engage with others, and generally behave can and will inform responsive actions. So to successfully kick off your crowdsourced mentoring movement, it is critical for you to serve in a mentoring role for others. For example, if you want people in your crowd to invest time in M AY 2 0 2 0

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DEPARTMENT | MENTORING SUB TITLE MATTERS

judgment to make the best use of the consolidated data. Sometimes the best advice must be plucked from unsolicited advice you have no interest in hearing. Remember, feedback is the answer to a problem you may not have known you have. If you’re curious, you can become engaged in a conversation about unexpected or hard feedback. You don’t have to agree with the insight or act on it. But if you aren’t curious, you won’t hear it, you won’t be able to process it, and the gift will be lost to you. Also, beware of the natural tendency to focus on ideas and advice that are already familiar to you. Many crowdsourced ideas fall flat because people are unwilling to address old habits or try new things. If you focus only on the advice that feels safe and easy, it defeats the entire purpose of crowdsourcing, which is to uncover new ways of thinking.

Expect and Embrace Failure One of the keys to successful crowdsourced mentorship is conveying a sense of belief in your crowd by successfully navigating your professional setbacks. In crowdsourced mentoring scenarios, failure is bound to happen from time to time. But it’s important to remember that failure can be an incredible teacher. Encourage yourself to accept failure. This can be a scary leap, but the best crowdsourced mentorship pushes you outside your comfort zone and provides invaluable perspective and experience so you become wiser, more agile, and better able to face challenges as they arise in the future.

If you focus only on the advice that feels safe and easy, it defeats the entire purpose of crowdsourcing, which is to uncover new ways of thinking.

Conclusion We need different mentors at every stage of our careers, and some of us need multiple mentors at the same time. The norms of having

one mentor, or a single-professional focus, are changing. Meanwhile, lawyers should continue leveraging the greatest tool in their arsenal: one another. We are all responsible for changing the culture of legal mentoring by investing in the power of our community. We can work together to build effective crowds and meaningfully leverage the feedback and insight they source. We can build a culture of legal mentoring in Colorado that spreads openness and passion while challenging each other and reducing fear of failure. When one of us does better, we all do better. We can create a profession where everyone is seen as a business partner. Disrupt your career by crowdsourcing your mentorship and take your professional goals to the next level.

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.

NOTE

1. Meltzer, “A New Approach to Mentorship in Today’s Legal Profession: 4 Reasons Why it Can Be Successful,” Lawyer Exchange (Feb. 6, 2017), https://www.lawyerexchange.com/blog/ new-approach-to-mentorship.

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DEPARTMENT | THE SUB TITLE SIDEBAR

Student Inventions BY M A R K L E V Y

F

or the last quarter century, I’ve been involved with the Invention Convention program for students between kindergarten and eighth grade. We ask them to solve a problem in a new way. Some 20,000 youngsters have participated in the student invention program, creating invention models from mousetraps to ozone layer repair kits. Life is Messy One kindergarten student lamented the lack of mud during hot summer days, mud being the main ingredient in mud pies, as it happens. So the 5-year-old inventor mounted an inverted

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bottle of water and one filled with dirt onto the bathroom wall. Now he can concoct a batch of mud in the comfort of his parents’ bathtub. Another student was faced with the problem of walking his dog every afternoon. He invented a virtual reality helmet for his pet that can now walk around the living room imagining it is encountering fields, flowers, and, of course, fire hydrants. Perhaps the inventor, like Alfred Nobel, can be excused for not anticipating unintended consequences of the invention. The Devil is in the Details The youngest children, having less science and engineering education and being less worldly,

tend to ignore the details that would make their inventions enabling, as patent examiners are fond of saying. The youngest kids often invent machines consisting of push buttons: “a button to make me pretty,” “a button to mow my lawn,” or “a button to groom my horse.” One second-grader invented a “Wishing Pill” to be ingested before making a wish. Once the pill is swallowed, she said, “then it will come true.” Another second-grader invented a “Dream Maker” hat with a dial to select the type of dream he desired. He suggested four categories: good dream, bad dream, no dream, or random dream. One student decided to “fix the hole in the ozone layer” by creating a patch that astronauts could sew onto the remaining ozone. A seventh-grader created the single invention that appealed to most adults over the years. His grandfather was stopped for speeding by a police officer. The observant grandson noticed the officer requested Grandpa’s license and registration. But suddenly an urgent radio call directed the officer to the scene of a hold up. The officer told Grandpa he had no time to write the speeding ticket. As the frustrated officer


prepared to leave, he warned Grandpa to slow down. It seemed a logical step for this student inventor to devise a radar detector-shaped electronic box for the dashboard. When stopped for speeding, Grandpa can now push a button that generates a radio signal to call the cop somewhere else. Plaque-be-Gone The bathroom represents a hotbed of opportunities. Toothbrushes are particular targets. A second-grader decided to use “little pieces of soap in the bristles” for a better cleaning job than she could obtain from mere toothpaste. For the eventuality that “you get an important phone call,” a fifth-grader added a cell phone to a toothbrush and hairbrush combination. One fifth-grader suggested a “Drive-Thru Dentist.” After the dentist finishes working on a patient in the car at a first window, “he pulls in toward the second window to pay.” Wake-Up Calls One of the problems that seems universal among children and regular people is waking up in the morning. The Invention Convention receives a significant number of alarm clocks and wake up machines each year. One invention featured a progressively louder audio recording repeating, “get up, Get Up, GET UP!” Another alarm clock featured selectable, customized messages at 15-second intervals. Another included a nagging voice. The gentlest alarm clock, however, included a mother’s loving audio message to get the heck out of the bed. Some alarm clock inventions reflected a violent tendency among the inventors. A gloved hand was described to emerge at a high rate of speed from an alarm clock to “punch you in the eye” or “smack you in the face,” apparently striking the sleeper into consciousness. A variation directed a mechanical hand to tickle the sleeper awake. If a punching, smacking, or tickling hand failed to work, a sixth-grader thought he had just the solution: a machine that “splashes cold water . . . onto my face.” In fact, a number of disclosures squirted or threw water—always cold—to accomplish the wake up task. A sixth-grader invented a “Runaway Alarm” that

squirted water and, with the help of a motion sensor, quickly moved away from the waking person who attempted to shut it off. A second-grader created a very scary robot to forcibly “pull you out of bed.” With invention titles like, “Shaker-Waker,” “The Lift, Turn, and Tip,” “The Tumble Alarm,” and “Rock-Awake,” you can easily imagine the inventive processes to “shake and wake you up.” But an eighth-grader compassionately stated one side of the bed was to be tipped “gently . . . at 3 miles per hour so there are no broken bones.” A thoughtful second-grader devised a machine that would pinch and punch, but also “show a ‘hallogram’ of mice” to rouse his father in time to take the student to school. A fourth-grader focused sunlight into a sleeper’s shut eyes, while a less subtle second-grader used a trumpet to do the job. A fifth-grader invented a robot that first “brushes

your teeth, combs your hair, gets you dressed” before actually wakening the sleeper. An eighth-grader combined electrical paddles and a timer to create “the ultimate alarm clock.” The disclosure is titled, “Defibrillator Alarm Clock,” and the inventor promised “nothing worse will happen to you all day.” Scents and Sensibility A number of our young participants understandably are involved with food and other substances that have or should have flavors and scents. For example, a third-grader believed that bug sprays used at picnics should be tasty and edible, while still being effective bug repellants. She suggested flavors like “cherry squirt, chocolate mist, and salsa spray.” A sixth-grader also objected to an odor. He thought gasoline could be improved by adding

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DEPARTMENT | THE SUB TITLE SIDEBAR

“roses, cinnamon, raspberry, and fresh air” scents to the gas. A fourth-grader thought combining ketchup and mustard would be simpler than having to apply them separately to a hamburger. He called the mix, “Ketchard.” And speaking of condiments, a fifth-grader inserted ketchup into French fried potatoes to eliminate a separate step and help prevent a sticky mess. Alternatively, maybe the mess could be prevented with a sixth-grader’s ketchup placed in a toothpaste tube. Another fourth-grader occasionally visits restaurants at which “the food is too expensive to eat.” She invented “Edible Sunglasses” as a back-up plan. A sixth-grader, who identified a similar problem, invented “Hamburger Earmuffs” for “people who want to eat something when they are going through the snow.” A fourth-grade television watcher decided to attach a pizza machine to her TV. That is sure to save time and effort for the hungry viewer. One seventh-grader ran out of milk for his cereal, so he invented evaporated milk-coated cereal and he called it “Calcio.” Just add water and you’ve solved a common breakfast problem. A fifth-grader invented a jar that has a screw top and a screw bottom, allowing the young user to reach peanut butter from either end, rather than coat a knife handle when he attempts to remove it from a standard jar. A third-grader invented a modular freezer, placed in a shopping cart to transport ice cream and other frozen goods while shopping at a supermarket. A young inventor was never sure how hot his soup was before burning his tongue, so he combined a thermometer, a digital display, and a soup spoon. On a similar note, a first-grader conceived of a bowl that turns colors from red to orange to blue depending on the heat of its contents. A second-grader with a baby sister permanently attached a thermometer to a baby bottle so the baby’s parents could see how hot the milk gets in the microwave oven. One second-grader invented a see-through toaster, “so you can see how toast is doing and know when it’s the perfect time for it to come out.” Because cubicle-shaped milk cartons do not fit in round cup holders in a car, a third-grader

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created a beverage container with a cubicle top portion and a cylindrical bottom portion. Sibling Rivalry Another popular category that seems to get the creative juices flowing in a student inventor is his or her younger siblings. Many student inventors are frustrated by younger siblings messing up their stuff, talking incessantly, or merely being underfoot. These situations resulted in solutions that range from elaborate contraptions culminating in an overturned bucket of water, to a “Sister Alarm Trap,” complete with surveillance camera. “Toothpaste Glue” should be effective in shutting up the little kid. And a magical “Sister Begone” spray is self-explanatory, if not entirely based on the laws of physics. For a precise, effective, and downright lowtech solution, what could be simpler than a second-grader’s mouth tape fashioned to “stay on my sister’s mouth every weekend and all summer?” Medicinal Fixes A second-grader observed that “babies are getting into medicine.” Her solution was a fingerprint sensor in the cap of the prescription vial to “make sure it is a grownup thumb” that accesses the pills. A young inventor, whose basement flooded occasionally, invented an alarm comprising a battery, a buzzer, and two spring-loaded electrical contacts separated by an aspirin tablet. When water in the basement reaches the aspirin,

it dissolves, the electrical circuit is completed, and the buzzer alerts the family that water has entered the basement. #Kid Problems Another audible alarm was incorporated in a timer that was packaged in a bookmark to allow a sixth-grader, engrossed in a book, to know when to stop reading. One fourth-grader introduced screens instead of glass for side windows of cars. That would not only prevent sheets of paper from blowing out of the car, but the screen would also “prevent things from flying into the window.” A first-grader, having difficulty locating the ends of his seatbelt in the dark, invented “The Light Up Seatbelt.” All of these ideas resulted from problems the kids identified. Some of us never knew we had them. But isn’t it a comfort to know the next generation is working on their solutions? Conclusion It’s only a matter of time before some of these ideas find their way into a retailer near you. Just remember, kids thought of each of them before a multinational company claimed credit. Mark Levy is a registered patent attorney and intellectual property counsel for Block45Legal, LLC in Denver. He has contributed humorous essays to the public radio show “Weekend Radio” for a number of years, and his essays are now available in two paperback books available on Amazon: Trophy Envy and They’re Only Words—creativelevy@gmail.com.


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FEATURE | TITLE ENVIRONMENTAL LAW

A Guide to Colorado Sand and Gravel Permitting BY K E N T HOL SI NGE R A N D T ODD OH L H E I SE R

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This article provides an overview of the permitting process for limited impact sand and gravel operations.

S

o you want to open a gravel pit . . . now what? As with many enterprises, prospective quarry operators may find that navigating the permit application process can be a dauntingly rocky road. Mining operations at the state level are regulated generally under CRS Title 34. Local government approvals must also be obtained and can be quite challenging, mostly due to opposition from neighboring landowners. This article examines the permitting process for limited impact sand and gravel operations pursuant to state law and offers some important considerations relative to local government permitting. Filling the Need for Gravel and Sand Gravel, sand, and related extracted construction materials are continually in demand. According to the US Geological Survey’s (USGS) 2018 report, the US produced approximately 970 million tons of construction sand and gravel in 2018.1 Colorado is among the leading states in gravel production. The uses for such materials include concrete aggregates and products; road construction and stabilization; asphalt and similar uses; construction fill; and such varied uses as snow and ice control, railroad ballast, and roofing granules.2 At the state level, gravel pits are regulated by the Colorado Mined Land Reclamation Board (Board) within the Division of Reclamation, Mining and Safety (DRMS).3 The Board regulates the industry pursuant to the Colorado Land Reclamation Act for the Extraction of Construction Materials4 and the DRMS “Construction Material” Rules codified at 2 CCR 407-4 (the Rules).5 Competent legal and engineering advice is critical during the early stages of planning

to ensure regulatory compliance. Industry organizations are also excellent resources and sources of information.6 Limited Impact Operations Construction material (e.g., gravel) extraction operations of less than 10 acres are considered “Limited Impact Operations” and are governed by CRS § 34-32.5-110. Rule 1.4 governs the application review process generally, and Rule 1.4.2 pertains specifically to limited permit applications. The Reclamation Permit Application Package for a Designated Mining Limited Impact (110d) Operation (permit application package) is available on the DRMS website.7 The permit application package must be submitted with the various exhibits listed in Rule 6.3 and the application form. Pursuant to Rule 1.4.6, the Board is required to process and take final action on the application within 30 days of submittal. However, Rule 1.4.6(2) allows the time period to be extended if complications arise, such as when a member of the public objects to the gravel pit. To allow for the potentially lengthy objection process (including potentially a hearing under Rule 1.4.11), any revisions required by DRMS, or other unforeseen complications, operators should begin the application process well before any proposed operation. The statutory fee for the application is currently $1,258, pursuant to CRS §§ 34-32.5-110(2) and -125(1)(a)(I). Applicants must also submit performance and financial warranties to the Board before its issuance of a permit, as required by CRS § 34-32.5-117 and Rule 4. These warranties are written promises that the applicant will both comply with all permit requirements and be responsible for all reclamation costs. The Board determines the amount of the financial

warranty, which must include proof of financial responsibility. Pre-Application Requirements Prospective applicants should complete the following diligence requirements before starting the permitting process: ■ Determine the legal description of the proposed site down to at least the quarter-quarter section.8 ■ Determine the “Primary Mine Entrance Location” for the site. This point must be reported in latitude/longitude or Universal Transverse Mercator (UTM).9 ■ Obtain a gravel pit location map prepared by a registered land surveyor created in accordance with Rules 6.2.1(2) and 6.3.1. ■ Determine if there are any bodies of water (e.g., streams, rivers, lakes, ponds reservoirs, ditches, or wetlands) near the site that the gravel pit could affect.10 ▷ The existence of such water bodies could trigger additional requirements and possible regulation under the Colorado Division of Water Resources; the Colorado Department of Public Health and Environment (CDPHE), Water Quality Control Division; or the US Army Corps of Engineers. ■ Determine if the site is in an area of historical significance according to the Colorado State Historic Preservation Office.11 ■ Determine whether a fugitive dust permit from the CDPHE Air Pollution Control Division is needed.12 ■ Confirm if the surface owner owns the mineral rights as well as the rights to mine sand and gravel.13 ■ Determine if there are any access issues that could pose a problem, including M AY 2 0 2 0

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a possible need to traverse the land of others to access the site. ■ Determine if there are any physical qualities to the site that could pose a problem, such as a sloped grade. ■ Provide a description of the vegetation and soil characteristics in the area of the proposed gravel pit. This may be obtained from the local office of the US Department of Agriculture Natural Resources Conservation Service.14 ■ Identify any permanent manmade structures within 200 feet of the affected area and the owner of each structure.15 If such structures exist, additional action will be required pursuant to Rule 6.3.12. Develop Mining and Reclamation Plans Once the pre-application steps are completed, applicants should: ■ Prepare a Mining Plan pursuant to Rule 6.3.3. A Mining Plan describes how the gravel pit will affect the area and must include the detailed information listed in Rule 6.3.3. ■ Prepare a Reclamation Plan to describe the timing, procedure, and criteria and materials that will be used to reclaim the affected land to the proposed future land use in accordance with Rules 6.3.4(1) and 3.1. The Reclamation Plan must also provide an estimate of the actual costs to reclaim the site based on what it would cost the State of Colorado to complete the reclamation by using an independent contractor.16 ■ Prepare a Mining Plan Map and Reclamation Plan Map in accordance with Rule 6.3.5. ■ Prepare a list of other permits and licenses required (e.g., county land use, water quality permits, and air quality permits) in accordance with Rule 6.3.6. ■ Provide a description of the basis for the legal right of entry to the site in accordance with Rule 6.3.7. In addition to a lease, deed, title abstract, or current tax receipt, this documentation can include a notarized, signed statement by the landowner stating that the applicant (and/or the operator)

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has the legal right to enter and conduct mining and reclamation operations at the site. DRMS must be notified of any changes affecting entry to the site, such as sale of the property or changes to a lease, as required by Rule 1.16(2).

The Reclamation Plan must also provide an estimate of the actual costs to reclaim the site based on what it would cost the State of Colorado to complete the reclamation by using an independent contractor.

” Public Notice Procedures Rule 1.6 requires specific notice requirements, both before and after the submission of a permit application. Before submitting the application the applicant must: 1. Provide a copy of the application to the Board of County Commissioners.17

2. Provide a copy of the application to the Board of Supervisors of the Conservation District (if applicable).18 3. Post notice at the site.19 4. Provide a copy of the application to the local county clerk or recorder for public review, but do not record it.20 After submitting the application, the applicant must: ■ Within 10 days of the Board notifying the applicant that the application has been filed, publish public notice in the local newspaper of general circulation in accordance with Rule 1.6.2(1)(d). ■ Serve notice immediately after the newspaper publication to all owners of record of the surface and mineral owners of affected land, and all owners of record of all surface land within 200 feet of the boundary of the affected lands, by certified mail, return receipt requested, or personal service.21 ■ When directed by the Board, mail a copy of the notice to any other owners of record who might be affected by the proposed mining operation. The Board designates such owners during its adequacy review process.22 In addition to all general application requirements described in Rules 1.4.1 and 1.4.2, all proofs of publication and notice, accompanied by a signed affidavit, must be submitted to DRMS before the Board will review the application.23 Post-Permit Requirements Once a permit is issued, each year on the anniversary date of the permit’s issuance the permittee must pay an annual fee determined by statute.24 In addition, the permittee must submit an annual report along with an updated map showing the locations of any disturbance and reclamation activities that occurred during the preceding year and any monitoring information required pursuant to the Reclamation Plan.25 Permittees may submit the annual report, map, and fee online via the DRMS ePermitting website,26 and may keep track of all submitted documents relating to a permit on the DRMS Imaged Documents database.27


Where groundwater is exposed, operators are required to obtain a well permit from the Colorado Division of Water Resources along with authorized supplies of replacement water to ensure there is no injury to vested water right holders.

The Water Relationship There is a complex relationship between sand and gravel mining and Colorado water laws. Where groundwater is exposed, operators are required to obtain a well permit from the Colorado Division of Water Resources along with authorized supplies of replacement water to ensure there is no injury to vested water right holders. In 2018, SB 18-041 was enacted to give operators of sand and gravel mines more flexibility to use water exposed during mining. It amended CRS §§ 37-90-107(6)(a) (I) and 39-90-137(11)(a)(I) to allow water used incidental to sand and gravel mining to be used (among other things) to mitigate the impacts of mining or dewatering.28 Operators should

seek competent legal advice concerning water rights and water quality issues. While local permitting is often the most difficult hurdle, sand and gravel operations have been stymied at the state level as well. For example, one Southern Colorado quarry was defeated on grounds that included concerns about impacts to domestic water wells.29 Conclusion Operators face myriad state and local permitting hurdles in developing sand and gravel pits in Colorado. While much of the information and legwork required for state permitting carries over to the requirements of local governments, site-specific concerns such as truck traffic, noise, dust, and visual impacts are likely to attract significant and vocal neighborhood opposition. While this article provides an overview of the basic permitting process, prospective applicants should seek competent legal and engineering advice on their specific plans before embarking on the permitting process.

Kent Holsinger is the founder and manager of Holsinger Law, LLC in Denver, a boutique natural resources firm with an emphasis on lands, wildlife, and water law, including permitting matters. Holsinger is frequently cited as an expert in the media and in trade publications and has authored publications on the use of water for oil and gas operations, hydropower, wildlife law, and water quality—kholsinger@holsingerlaw.com. Todd Ohlheiser is the executive director for both the Colorado Stone, Sand & Gravel Association and the Colorado Ready Mixed Concrete Association. Both associations aim to positively impact legislative, regulatory, and safety-related issues within the aggregate mining and concrete sectors through educational outreach, lobbying efforts, and quality improvement programs. Ohlheiser has managed businesses and operations in the construction, aggregate mining, and concrete industries in both the US and Canada. He has an MA in organizational leadership, a BS in business administration, and an AA in mechanical engineering—todd@coloradocaa.org. Coordinating Editor: Melanie Granberg, mgranberg@gcgllc.com

NOTES

1. USGS, Mineral Commodity Summaries 2020 at 141 (Jan. 31, 2020), https://pubs.usgs.gov/ periodicals/mcs2020/mcs2020.pdf. 2. See, e.g., USGS National Minerals Information Center, https://minerals.usgs.gov/minerals/ pubs/commodity/sand_&_gravel_construction. 3. DRMS is a division of the Colorado Department of Natural Resources, https://www. colorado.gov/drms. 4. The Act is available on the DRMS website at http://mining.state.co.us/ SiteCollectionDocuments/Title%2034%20 Article%2032.5%20Certified%202015.pdf. 5. The Rules are available on the Colorado Secretary of State’s website at https://bit. ly/39MRYSY. 6. This article does not constitute legal advice and creates no attorney-client relationship. Operators are encouraged to seek competent legal advice before starting the permitting process. 7. The form is available on the DRMS website at http://mining.state.co.us/ SiteCollectionDocuments/Construction110App. pdf. 8. Rule 6.3.1(1). 9. Rule 6.3.1(2). 10. Rule 6.3.2(c). 11. Permit application package at iii. 12. Id.

13. Sand and gravel rights are legally distinct from mineral rights with regard to conveyances of minerals. See Kinney v. Keith, 128 P.3d 297, 304 (Colo.App. 2005). 14. Rule 6.3.2(a). 15. Rule 6.3.2(b). 16. Rule 6.3.4(2). 17. Rule 1.6.2(1)(a). 18. Id. 19. Rules 1.6.2(1)(b) and 3.1.12. 20. Rule 1.6.2(1)(c). 21. Rule 1.6.2(1)(e). 22. Rule 1.6.2(1)(f). 23. Rule 1.6.2(1)(g). 24. Rule 1.5. 25. Rules 1.15 and 5.8. 26. https://www.colorado.gov/pacific/drms/ epermitting. 27. https://dnrweblink.state.co.us/drms/ SearchPermit.aspx. 28. SB 18-041, https://leg.colorado.gov/bills/ sb18-041. 29. Finley, “State mining regulators reject controversial proposal for 239-acre gravel mine near Colorado Springs wildlife habitat,” Denver Post (Apr. 26, 2018), https://www.denverpost. com/2018/04/26/hitch-rack-ranch-coloradosprings-gravel-mine-wildlife-habitat-rejected.

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FEATURE | TITLE LABOR AND EMPLOYMENT LAW

Mind the Gap Practical Solutions to Minimize Pay Equity Claims BY C H R I ST I N E LY M A N, L ON N I E GI A M E L A , A N D L A L ON N I E GR AY

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As the pay equity legal landscape evolves, Colorado employers should brace themselves for claims of gender-based discrimination, plummeting morale, and negative publicity. Employers can minimize the risk of claims by implementing the solutions discussed here.

W

hen the US women’s soccer team won the World Cup last summer, crowds chanted “Equal pay!” in reference to pay disparities between the US women’s and the US men’s teams. Issues surrounding equal pay are becoming an increasing part of our cultural, social, and legal landscape as evidenced by the #MeToo movement, the gender pay gap discussions in the 2020 presidential campaign, and the increasing number of laws and lawsuits involving equal pay. In response to these developing trends, Colorado employers continue to examine how to properly identify, audit, and address equal pay issues within their organizations. While understanding that federal law prohibits gender-based pay discrimination, Colorado employers frequently struggle with two basic questions: 1. How do I know if my organization has an equal pay issue? 2. If an issue exists, what do I do to fix it? Indeed, to increase pay transparency and expand the limited “equal work” standard under federal law, Colorado has enacted a pay equity law that, among other things, will prohibit salary history inquiries and require equal pay for “substantially similar” work. Colorado employers must navigate the evolving arena of pay equity laws to avoid gender-based discrimination claims based on pay, manage overall employee morale, and handle the heightened publicity surrounding pay equity issues. This article aims to ease the burden of Colorado employers confronted with pay equity issues in the workplace by providing an overview of the pay equity legal landscape and offering practical solutions. Because one strategy will not work for all employers, this article also discusses the advantages and challenges associated with

Colorado employers must navigate the evolving arena of pay equity laws to avoid gender-based discrimination claims based on pay, manage overall employee morale, and handle the heightened publicity surrounding pay equity issues.

three possible solutions: conducting proactive pay audits, revising compensation plans, and coordinating implicit-bias training. The Equal Pay Act On June 10, 1963, President John F. Kennedy signed the Equal Pay Act (EPA) into law.1 As an amendment to the Fair Labor Standards Act (FLSA), the EPA requires that men and women receive equal pay for equal work.2 Work is “equal” if it requires “equal skill, effort, and responsibility.”3 Skill includes considerations such as experience, training, education, and ability.4 Effort refers to the physical or mental exertion necessary to perform the job.5 And responsibility concerns the degree of accountability required to perform the job.6 Courts generally construe the “equal work” requirement narrowly.7 Therefore, jobs that are merely alike or comparable are not considered “equal” under the EPA.8 Even if a plaintiff is able to establish a prima facie case under the EPA, a defendant can still defeat the EPA claim by establishing that the wage differential is justified under one of the EPA’s four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; or (4) any factor other than sex.9 The most commonly invoked affirmative defense is “any factor other than sex.”10 To establish this defense, an employer may use “any job-related or business reason other than sex to justify the difference in pay.” 11 For example, “any factor other than sex” may include educational qualifications, work experience, training, or ability.12 To meet this burden, an employer must “submit evidence from which a reasonable factfinder could conclude not merely that the employer’s proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity.”13 M AY 2 0 2 0

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Colorado’s Equal Pay for Equal Work Act With the purpose of expanding the limited equal work standard under the federal EPA, Colorado enacted its own pay equity law. Colorado’s Equal Pay for Equal Work Act (Colorado’s EPA), effective January 1, 2021, prohibits an employer from: ■ paying one employee a wage rate less than the rate paid to an employee of a different sex for substantially similar work, ■ asking about or relying on an applicant’s salary history, ■ restricting employees from discussing their compensation with other employees, and ■ retaliating against an applicant who fails to disclose his or her wage history.14 “Substantially similar work” is to be determined without regard to job title and is based on a composite of skill, effort (which may include

consideration of shift work), and responsibility.15 Colorado’s EPA will require employers to apprise all employees of employment advancement opportunities, job openings, and the pay range for the job openings.16 Similarly, Colorado’s EPA will require employers to maintain records of job descriptions and wage-rate history for current employees and—for two years after the employment ends—former employees.17 An employer that violates Colorado’s EPA may be liable for economic damages, equitable relief, and the employee’s reasonable attorney fees.18 Similar to the federal EPA, a defendant can defeat a claim under Colorado’s EPA by establishing that a wage differential is justified by one or more of the following factors: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production; (4) the geographic location where the work is performed; (5) education, training,

or experience to the extent they are reasonably related to the work in question; or (6) travel, if the travel is a regular and necessary condition of the work performed.19 Collective Actions An employee’s federal EPA claim and any pendent state law claims may result in a collective action, which will increase an employer’s litigation costs and a company’s exposure to the media. A collective action under the federal EPA is governed by the FLSA opt-in procedure, under which an aggrieved employee can bring a claim against an employer on behalf of herself and other similarly situated employees. Courts generally consider whether to certify FLSA collective actions under a two-step approach. First, the court conditionally certifies the class, based on a modest factual showing that the putative class members are similarly situated. For

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example, in Smith v. Merck & Co., plaintiffs, who were female sales representatives, moved for the conditional certification of their EPA collective action.20 Plaintiffs alleged that defendant—“a global pharmaceutical powerhouse”—systemically paid female sales employees less than similarly situated male sales employees who performed the same job duties and worked under the same conditions.21 Plaintiffs argued that the female sales representatives were similarly situated because they all performed the same essential work and were subject to the same compensation policies and practices.22 At the conditional certification stage, the court found that plaintiffs demonstrated that the sales representatives had similar responsibilities; the named plaintiffs were paid less than some allegedly similarly situated males; and compensation decisions, although based in part on input from some direct managers, were finalized by a central, common office.23 Thus, the court granted plaintiffs’ motion for conditional certification.24 Second, after conducting additional discovery, the court decides whether to decertify the provisional class. At this second stage, the court considers (1) disparate factual and employment settings of the individual plaintiffs, (2) the various defenses available to the defendant that appear to be individual to each plaintiff, (3) fairness and procedural considerations, and (4) whether plaintiffs made the proper filings.25 For example, in Ahad v. Board of Trustees of Southern Illinois University, plaintiffs—female physicians—alleged that defendant paid them and other female physicians substantially lower compensation than male physicians for the same or similar work.26 The court had conditionally certified their EPA collective action, and defendants subsequently moved for decertification.27 The court acknowledged that its inquiry at the second stage was “more stringent” compared to the conditional certification stage.28 The court found that while plaintiffs shared some factual and employment settings, individual issues predominated;29 for instance, plaintiffs had disparate job duties and work settings, the factors affecting each opt-in plaintiff’s compensation were highly individualized, and plaintiffs had not identified a common policy or practice

As demonstrated by these cases, most district courts grant conditional certification given the low threshold at the first stage, and the real battle for collective action status takes place when the defendant files a motion for decertification during the second stage.

responsible for the alleged discrimination.30 The court held that the affirmative defenses available to defendants were highly individualized as to each plaintiff, and because plaintiffs had not shown that they were similarly situated, allowing them to proceed collectively on their claims did not promote judicial economy.31 Thus, the court granted defendants’ motion to decertify the collective action.32

As demonstrated by these cases, most district courts grant conditional certification given the low threshold at the first stage, and the real battle for collective action status takes place when the defendant files a motion for decertification during the second stage. Employers confronted with an EPA claim face potential liability and significant monetary exposure. For example, under the EPA, prevailing plaintiffs are entitled to lost wages, plus an equal amount in liquidated damages.33 Plaintiffs also may be awarded back pay, but back pay awards “are typically limited to damages sustained” within the limitations period.34 Finally, plaintiffs also may be entitled to their reasonable attorney fees and costs.35 Thus, in collective actions, the potential damages may be significant. Minimizing Risk In addition to significant monetary exposure, an employer that fails to comply with pay equity laws may be exposed to reputational damage that affects its employees, customers, and shareholders. For example, employees demoralized over inequitable pay may choose to leave, and the employer may also fail to attract top talent. Customers may switch brands, resulting in lost revenue, and stock prices may plummet due to bad press. Colorado employers should take proactive steps to minimize such risks and comply with Colorado’s EPA by ■ eliminating questions about an applicant’s salary history from application forms, ■ training human resources professionals to stop requesting applicants to provide salary history information during interviews, and ■ revising job descriptions and job advertisements to include the salary associated with each position. In addition, employers should implement other strategies according to their particular budgetary and personnel structures. The options below—conducting proactive pay equity audits, revising compensation plans, and coordinating implicit-bias training for decision-makers—can reduce risk exposure while maximizing employee participation in creating pay equity. Each option has its own challenges and advantages. M AY 2 0 2 0

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Conduct Proactive Pay Audits A pay audit involves comparing the compensation of employees doing equal (federal standard) or similar (Colorado standard) work at a company. The audit’s scope may be as limited (sex only) or as broad (age, race, sex, etc.) as an employer wants it to be. However, a broader audit will likely be more costly and take more time to complete. To conduct an audit, an employer will need to collect information about each relevant employee and his or her comparators. For example, if the pay audit is based on sex among management-level employees, the employer must, at a minimum, collect information for each management-level employee on sex, pay, job title, worksite location, schedule, full-time/ part-time status, length of service, education, and performance evaluations. The employer also must evaluate all documents related to the company’s performance evaluation system to confirm that its job evaluation system for each employee is consistent. Finally, an employer may need to interview employees to discuss their actual duties and responsibilities. Employers should organize all relevant information in a spreadsheet and review the data. This review frequently involves a cohort analysis, which is an analysis of smaller groups of individuals, or a statistical regression analysis that looks for trends in larger groups of employees and smaller ones contained therein. As an employer analyzes the data, it should document the reasons for any differences in pay. The employer should determine whether any differences in pay are based on sex and, if so, adjust the wages accordingly. Advantages: Many employers already compile gender and pay data, making the pay equity analysis more manageable. For example, employers with 100 or more employees, and federal contractors with 50 or more employees, must submit employee gender data in their EEO1 reports to the EEOC, and pay was included as a reporting factor for 2017 and 2018.36 Moreover, public companies already analyze compensation to comply with the CEO pay ratio rule under the Dodd-Frank Act and can expand their analysis to include gender.37 For employers that are comparing only a few employees, a pay audit likely will be beneficial. Such an

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Conducting implicitbias training demonstrates an employer’s commitment to inclusivity and helps decision makers achieve pay equity decisions that are fair and objective.

” audit can be conducted by a human resources professional and thus be cost effective. Keep in mind, however, that internal pay audits are not protected by the attorney-client privilege and thus are subject to disclosure during discovery in a lawsuit. An employer may wish to work with outside counsel to be protected by the attorney-client privilege. Challenges: For employers that are comparing hundreds or thousands of employees, a pay audit likely will need to be conducted by an economist to provide an expert opinion regarding whether there is any statistically significant disparity in compensation between male and female employees, controlling for any appropriate variables. This could be costly depending on the employer’s size and the scope of the audit. In this scenario, working with outside counsel is recommended, especially because failure to keep the pay audit privileged

could create a treasure trove of discoverable information for class action plaintiffs. Revise Compensation Plans Compensation plans identify the criteria and process that employees must satisfy to receive bonuses, commissions, or salary increases. The criteria and process should be based on clear, objective factors. To comply with Colorado’s EPA, the criteria should focus on the position and duties rather than on a particular employee or applicant or his or her salary history. The employer should provide the compensation plans to all relevant employees, discuss the plans with them, and allow them to ask questions. Companies should also consider having the compensation plans reviewed by several diverse key stakeholders who can assess the effectiveness of the criteria and process on employees belonging to a diverse group. When revising its compensation plans, an employer also should consider the competitiveness of its wages by analyzing pay ranges for comparable positions with similar employers. Advantages: Revising compensation plans allows an employer to confirm that its criteria and processes are based on clear, objective factors. Additionally, including employees in discussions helps demystify the pay process and build trust in the employer’s decision-making process. Further, increasing transparency of the pay process likely will enhance employee contributions to the company’s success. Challenges: Depending on the employer’s size and the number of compensation plans applicable to its workforce, revising an employer’s compensation plans may be a lengthy process that requires prioritization and commitment. And if outside counsel assists with this project, the cost likely will increase. Further, changes to certain equity compensation plans may require shareholder approval. Coordinate Implicit Bias Training Implicit bias “refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”38 Implicit biases can impair a person’s decision making,39 but information and self-examination can help combat the negative effects. Requiring all


decision makers to attend implicit-bias training can help employers combat unintentional discrimination. Advantages: A successful training challenges assumptions and helps people understand how others perceive their actions.40 Conducting implicit-bias training demonstrates an employer’s commitment to inclusivity and helps decision makers achieve pay equity decisions that are fair and objective. Challenges: Discussions about sensitive learning topics must be designed properly.41 “A poorly designed diversity education program can make some feel attacked, despite aiming to raise awareness and sensitivity around an issue.”42 Conclusion Colorado employers must comply with both the federal EPA and Colorado’s EPA. To reduce

exposure to pay equity claims and avoid litigation, particularly collective actions, Colorado employers should be proactive and implement strategies to address pay equity issues before they become a problem. An employer’s size and employee morale are guides to determining the best strategies to implement.

A different version of this article was previously published at “Mind the Gap: Practical Solutions to Minimize Pay Equity Claims,” ACC Docket vol. 37, no. 10, at 25–31 (Dec. 2019). © 2019, the Association of Corporate Counsel. All rights reserved. Reprinted with permission. If you are interested in learning more about ACC, please visit www.acc.com; call (202) 293-4103, ext. 360; or email membership@acc.com.

Christine Lyman is an assistant US attorney in the District of New Mexico and was recently the director of legal affairs at Arrow Electronics in Centennial—chk9r@virginia.edu. Lonnie Giamela is a partner with Fisher Phillips who splits his time between Los Angeles and Irvine, California. He is a national litigator with significant experience in class action wage-and-hour lawsuits and pay equity claims—lgiamela@fisherphillips.com. LaLonnie Gray is an attorney with Fisher Phillips in Denver. She devotes her practice to representing employers in a wide range of labor and employment disputes, including equal pay act claims and wage-and-hour cases—lgray@fisherphillips.com. Coordinating Editor: John Husband, jhusband@hollandhart.com

NOTES

1. 29 USC § 206(d). See also Goldstein, “SexBased Wage Discrimination: Recovery Under the Equal Pay Act, Title VII, or Both,” 56 Ala. Law. 294 (1995). Relatedly, the Lilly Ledbetter Fair Pay Act of 2009, passed to protect individuals against discrimination in compensation, amended Title VII and provides that the statute of limitations for filing a charge of discrimination with the EEOC runs from each paycheck that contains discriminatory pay, rather than from the date of the discriminatory act that led to the lower pay as previously held by the Supreme Court. An employee also may seek to recover against an employer for alleged disparities in pay under Title VII of the Civil Rights Act of 1964. There are differences between the EPA and Title VII, such as administrative prerequisites and available damages. In addition, while employees can file a traditional “opt out” class action alleging Title VII violations, EPA plaintiffs must use the “opt in” class action or “collective action,” as explained in this article. 2. Schneider and Stine, 2 Wage and Hour Law: Compliance and Practice § 16:1 Introduction (Thomson Reuters Mar. 2018 update). 3. 29 USC § 206(d)(1). 4. EEOC v. Cent. Kan. Med. Ctr., 705 F.2d 1270, 1272 (10th Cir. 1983). 5. Id. 6. Id. 7. Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1364 (10th Cir. 1997). 8. Id. 9. See 29 USC § 206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188, 196–97 (1974). 10. Yoshino, “Reevaluating the Equal Pay Act for the Modern Professional Woman,” 47 Val.

U. L. Rev. 585, 595 (2013) (citing collection of sources). 11. Id. 12. See, e.g., Equal Emp’t Opportunity Comm’n v. Aetna Ins. Co., 616 F.2d 719, 725 (4th Cir. 1980) (listing “shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability” as examples of “anything other than sex” exception) (internal citation omitted). 13. Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1312 (10th Cir. 2006) (citation omitted) (emphasis in original). 14. HB 19-085 § 4, amending CRS § 8-5-102. 15. Id. 16. HB 19-085 § 8, creating CRS § 8-5-201. 17. HB 19-085 § 8, creating CRS § 8-5-202. 18. HB 19-085 § 8, creating CRS § 8-5-203. 19. HB 19-085 § 4, amending CRS § 8-5-102. 20. Smith v. Merck & Co., No. 13-cv-2970, 2016 WL 1690087 at *1 (D.N.J. Apr. 27, 2016). 21. Id. at *2. 22. Id. at *4. 23. Id. at *5. 24. Id. 25. See, e.g., Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001). 26. Ahad v. Bd. of Trustees of S. Ill. Univ., No. 15-cv-3308, 2019 WL 1433753 at *1 (C.D.Ill. Mar. 29, 2019). 27. Id. at *3. 28. Id. at *4. 29. Id. 30. Id. at *4–8.

31. Id. at 8–9. 32. Id. at 9. 33. 29 USC § 216(b). 34. Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997) (citing collection of cases). 35. 29 USC § 216(b). 36. Pursuant to the February 10, 2020 court order in Nat’l Women’s Law Ctr. v. Office of Mgmt. & Budget, Civ. Act. No. 17-cv-2458 (D.D.C.), the EEOC’s EEO-1 Component 2 “pay data” collection for 2017 and 2018 is now complete. See UPDATE: 2019 Component 1 EEO-1 Survey, www.eeoc.gov/employers/ eeo1survey. On September 12, 2019, the EEOC announced that it has opted to not renew its request to collect employer pay data (EEO-1 Component 2) for 2019, 2020, and 2021. Notice of Information Collection, www.federalregister. gov/documents/2019/09/12/2019-19767/agencyinformation-collection-activities-existingcollection. 37. Dodd-Frank Act, Pub. L. 111-203 § 953(b), 15 USC § 78n(i). 38. Understanding Implicit Bias, Kirwan Institute for the Study of Race and Ethnicity at The Ohio State (2015), http://kirwaninstitute.osu.edu/ research/understanding-implicit-bias. 39. O’Donnell, “Unconscious bias training can only take you so far,” HRDive (May 8, 2018), https://www.hrdive.com/news/unconsciousbias-training-can-only-take-you-so-far/522903. 40. Id. 41. Taylor, “Does the infamous Google memo reveal problems in the company’s training?” HRDive (Aug. 15, 2017), https://www.hrdive.com/ news/does-the-infamous-google-memo-revealproblems-in-the-companys-training/449373. 42. Id.

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Inverse Condemnation Claims after Knick The Promise and Peril of Litigating in Federal Court BY J E N N I F E R L A K E

This article explores inverse condemnation claims after Knick v. Township of Scott, Pennsylvania. It highlights considerations for determining the appropriate forum in which to bring an inverse condemnation claim.

I

nverse condemnation claims provide a means of obtaining just compensation for those whose property has been taken by a governmental entity without a proper exercise of the power of eminent domain. Takings claims are unique in that they potentially arise under both the US and Colorado Constitutions.1 Yet until 2019, a property owner whose property

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was taken without just compensation faced a procedural conundrum created by a pair of US Supreme Court decisions. Previously, a private property owner was first required to pursue an inverse condemnation claim in state court before seeking relief in federal court. However, a state court’s ruling on the claim had preclusive effect in any subsequent federal suit. Thus, as

a practical matter, property owners could not vindicate their claims in federal court. The issue was resolved in mid-2019 when the Supreme Court held in Knick v. Township of Scott, Pennsylvania that a property owner may pursue an inverse condemnation claim in federal court regardless of whether the claim has first been litigated in state court.2 The newfound


possibility of litigating these claims in federal court raises a host of questions for practitioners concerning how federal judges will handle these cases and the extent to which state or federal law will govern the proceedings. This article explores the practical ramifications of Knick and highlights considerations for practitioners in determining the appropriate forum in which to bring an inverse condemnation claim. Claims Pre-Knick The requirement that a landowner first pursue an inverse condemnation claim in state court originated in Williamson County Planning v. Hamilton Bank, a 1985 regulatory takings case in which the US Supreme Court held that the landowner’s claim was not ripe in part because the landowner had not first availed itself of the procedures for obtaining compensation provided by the state.3 The Court found that the Fifth Amendment only requires that “‘a reasonable, certain and adequate provision for obtaining compensation’ exist at the time of the taking.”4 Accordingly, the Court held that if a state provides a procedure for seeking just compensation, such as an inverse condemnation claim, there is no violation of the federal constitution’s Takings Clause until the landowner has used the procedure and been denied just compensation.5 Following Williamson County, property owners dutifully began to first pursue their inverse condemnation claims in state court. But if they were dissatisfied with the outcome in state court and attempted to later pursue their claim in federal court, the result was dismissal of their cases due to issue and claim preclusion.6 This occurred where litigants attempted to reserve their federal takings claims during the state court proceedings,7 and even where state courts denied compensation based on erroneous applications of the law.8 Despite holding that the claims were precluded, some federal courts expressed doubts that the Court intended Williamson County to foreclose the right to relief in federal court, calling it a “draconian result.”9 Nevertheless, 20 years later the Court held in San Remo Hotel, L.P. v. City and County of San Francisco that 28 USC § 1738, which provides that judicial proceedings shall have the same

The issue was resolved in mid2019 when the Supreme Court held in Knick v. Township of Scott, Pennsylvania that a property owner may pursue an inverse condemnation claim in federal court regardless of whether the claim has first been litigated in state court.

” full faith and credit in every US court, did indeed preclude a property owner from re-litigating a regulatory takings claim in federal court after a state court had resolved the claim.10 The Court noted that there was no right to a federal forum.11 Thus, the combined result of Williamson County and San Remo was that property owners could only pursue inverse condemnation claims, including claims brought

under the Fifth Amendment, in state court. The Court would later describe this in Knick as “[t]he San Remo preclusion trap.”12 Knick Alters the Landscape In Knick, the US Supreme Court reconsidered the practical result of Williamson County and San Remo. After a state court dismissed her claims for declaratory and injunctive relief, Knick sued the Township of Scott in federal district court, alleging that a local ordinance effected a taking of her property in violation of the Fifth Amendment.13 The district court dismissed her suit because she had not first pursued an inverse condemnation claim in state court.14 In considering Knick’s case, the Court explicitly overruled Williamson County, concluding that “the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs,” and holding that a property owner has an actionable claim under the Fifth Amendment at the very moment that a government takes property without compensation.15 The Court held that a property owner may bring an inverse condemnation claim under 42 USC § 1983 in federal court without necessarily pursuing the claim first in state court.16 The dissent cautioned against two potentially harmful consequences of the majority’s ruling. First, it noted that well-meaning government officials will inevitably be deemed lawbreakers because there typically is no way to determine in advance the full extent of a regulatory program’s effects on landowners. Because the majority held that a constitutional violation occurs at the very moment of a taking, there will often be no way to avoid a violation, particularly in the context of regulatory takings.17 Second, the dissent cautioned that the decision will funnel a large amount of “quintessentially local cases involving complex state-law issues” into federal court.18 It noted that takings claims often require complicated inquiries into state law property rights and land use issues with which federal judges are unfamiliar. The dissent further argued that it is not proper for federal courts to become the arbiters of local and state land use issues.19 Nevertheless, the groundbreaking result of Knick is that property owners are now able to M AY 2 0 2 0

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bring inverse condemnation claims against local governments in both state and federal court. Post-Knick Constructions In the wake of Knick, federal courts have opened the doors to takings claims that would have previously been barred under Williamson County,20 with two important caveats. First, at least one federal district court has held that Knick applies only to inverse condemnation claims; the decision does not permit landowners to remove direct condemnation actions to federal court.21 Second, the Fifth and Tenth Circuits have held that Knick did not have any effect on the immunity of states and state officials to suit in federal court under the Eleventh Amendment, and thus takings claims may not be brought against state governments, including state agencies, in federal court.22 However, inverse condemnation claims against counties and other municipal corporations may proceed in federal court.23 Deciding Whether to Litigate in State or Federal Court Historically, some practitioners have preferred to litigate land use issues in federal court for several reasons. First, federal judges are theoretically more immune to local politics, and therefore potential local bias, than state judges, who typically are either elected officials or, as in Colorado, subject to retention by popular vote. 24 Second, some practitioners believe they will be in a better negotiating position if local officials are confronted with the reality of litigating a Fifth Amendment claim before a federal judge.25 Finally, there are the more generalized and well-known advantages of litigating in federal court: less-crowded dockets and speedier resolution of cases. However, there are several important differences between state and federal takings law. Litigating these claims in federal court will raise complex choice-of-law issues that many federal district court judges have not had much occasion to address, because property owners were not previously permitted to litigate these claims in federal court absent the existence of diversity jurisdiction.

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Litigating these claims in federal court will raise complex choice-of-law issues that many federal district court judges have not had much occasion to address, because property owners were not previously permitted to litigate these claims in federal court absent the existence of diversity jurisdiction.

� Procedural Considerations Pursuant to the principles set forth in Erie Railroad Co. v. Tompkins, all procedural issues in an inverse condemnation suit brought in

federal district court are governed by the Federal Rules of Civil Procedure, while substantive legal issues concerning claims brought under the Colorado Constitution are governed by state law. 26 Although traditional condemnation cases brought in federal court are governed by the special procedures set forth in Fed. R. Civ. P. 71.1, the Ninth Circuit, for example, has opined that Rule 71.1 does not apply to inverse condemnation claims. 27 Thus, the general Federal Rules of Civil Procedure apply. Because the Colorado Rules of Civil Procedure are largely modeled after their federal rule analogues,28 there should not be any significant procedural differences to consider when deciding whether to litigate inverse condemnation claims in federal or state court. However, it is worth noting that pursuant to Colorado law, collateral issues that change the nature of the case, such as quiet title claims, cannot be considered in an eminent domain proceeding.29 Conversely, objections to the taking itself must be raised in that proceeding and may not be raised in a collateral proceeding.30 The US District Court for the District of Colorado has previously taken note of these limitations in considering eminent domain suits arising under Colorado law.31 Evidentiary Matters Although the Colorado Rules of Evidence are patterned after the Federal Rules of Evidence,32 federal judges in Colorado have exhibited a willingness to more closely scrutinize appraiser methodology under the Daubert33 standard than is typical of state judges under the Shreck34 standard. Colorado state courts have routinely held that the evidentiary rules in eminent domain proceedings are expansive.35 For example, with respect to an appraiser’s comparable sales, Colorado district courts have admitted comparable sales that were similar to the property at issue in at least one aspect.36 Comparable sales ranging in size from 7.84 acres to 135 acres have been held admissible in valuing a 129-acre property,37 and comparable sales with significant variations in development status have also been held admissible.38 Colorado district courts frequently hold that disputes over


the relevance of comparable sales and other aspects of an appraiser’s testimony go to the weight of the testimony, not its admissibility.39 By contrast, federal courts in Colorado have more readily excluded comparable sales based on differences in size, development status, and highest and best use in federal takings cases. For example, a federal judge in Colorado recently excluded three of an appraiser’s six sales based on differences in size, development status, and highest and best use.40 Each of the three comparable sales was a 34-acre home site that was subdivided and ready for construction.41 The subject property was a 154-acre lot that was unimproved, with a highest and best use of interim hold with future large lot development, including a residential subdivision of 35-acre lots.42 The condemnation action was initiated by the federal government, and therefore no Colorado law was discussed in the opinion. The Tenth Circuit has not specifically considered whether the expansive evidentiary rules developed by Colorado state courts apply in inverse condemnation suits brought in federal court that arise at least partially under Colorado law. However, the Tenth Circuit has somewhat enigmatically held in another context that although the Federal Rules of Evidence are not subject to Erie, where a conflict exists between the Federal Rules of Evidence and state law, the federal rules apply unless the state law at issue reflects substantive concerns or policies.43 Pure rules of evidence are concerned with accuracy, efficiency, and fair play in litigation, while substantive rules are concerned with behavior outside of the courtroom.44 It therefore seems likely that Colorado law concerning the admissibility of appraiser testimony will be deemed purely procedural and therefore inapplicable in an inverse condemnation suit brought in federal district court. Substantive Issues The takings clauses of the Colorado and US Constitutions are not co-extensive. The Colorado Constitution affords greater protection than the US Constitution by allowing compensation for damage caused to property abutting public improvements, in addition to actual physical takings.45 Thus, to the extent an

inverse condemnation suit is based solely on such damage, it cannot be brought in federal district court because no violation of the US Constitution will have occurred.46 A federal constitutional claim arises only where there has been an actual physical invasion of property, or where the effects of governmental action are “so complete as to deprive the owner of all or most of his interest in the subject matter.”47 In cases that truly arise under both the Colorado and US Constitutions, federal courts must apply state law on substantive questions concerning the right to compensation.48 This is likely to increase the number of questions the Tenth Circuit certifies to the Colorado Supreme Court49 because the US Supreme Court has held that federal judges should certify questions to state courts in situations where the state law issue is of vital concern and the question is truly novel.50 The US Supreme Court has specifically noted that eminent domain “is intimately involved with sovereign prerogative,” and has opined that issues as to the nature and extent of the delegation of the power of eminent domain between a state and a municipality are appropriate for certification.51 Candidates for certification therefore include questions about ■ the nature and extent of a specific entity’s power of eminent domain, particularly if that entity is a nontraditional governmental entity such as a quasi-governmental entity or a private party; ■ the types of property interests protected by the Colorado Constitution’s Takings Clause, particularly where such interests do not consist of full fee ownership of the property at issue;52 and ■ the right to recover attorney fees and costs, as discussed below. Certification of unsettled questions of state law is a possibility that attorneys and their clients should consider carefully when determining whether to bring suit in federal court, given the significant delay in compensation that will result from certification. Quasi-Substantive Issues Several potential conflicts exist between state and federal law on issues that are not clearly substantive or procedural.

Landowner testimony. The first potential conflict concerns testimony by property owners concerning the value of their property. Colorado courts have unequivocally held that a property owner may testify to the market value of one’s property without qualifying as an expert witness.53 The law is not as clear in the Tenth Circuit, which has not considered the question of property owner valuation in the context of eminent domain cases arising under Colorado law. Fed. R. Evid. 601 provides that the competency of a witness to testify as to a state law claim or defense is an issue of state law. Nevertheless, the Tenth Circuit has made conflicting statements on the standards applicable to landowner testimony in diversity jurisdiction cases involving other types of state law claims. For example, in James River Insurance Co. v. Rapid Funding LLC, the court noted that “the Federal Rules of Evidence generally consider landowner testimony concerning the value of the land to be expert opinion,” but also noted that such testimony may, with proper foundation, constitute lay testimony.54 However, in Hornick v. Boyce, the court held that landowner testimony concerning the value of property was expert testimony even where the landowner did not possess any relevant expertise.55 Although the court noted that whether a sufficient factual foundation for the testimony had been established was a substantive issue governed by Colorado law, it also noted that there were “threshold evidentiary issues concerning the admissibility” of the opinion.56 Considering this murky case law, it is unclear how a federal district court would resolve the interplay of Rules 601 and 702, and Colorado law concerning property owner testimony in an inverse condemnation suit. There are certainly colorable arguments to be made on either side. The trier of fact. The second potential conflict between state and federal law concerns the appropriate trier of fact for the valuation portion of the trial. There is no federal right to a jury trial in inverse condemnation cases, while in Colorado a landowner is entitled to either a trial by a jury of freeholders or a panel of three commissioners who are also freeholders.57 The Tenth Circuit has not categorically ruled M AY 2 0 2 0

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whether the right to a jury trial is substantive or procedural, but has noted that a state-provided right to a jury trial can plausibly advance substantive rights.58 There are persuasive arguments to be made that the right that Colorado has afforded property owners to a trial by either a jury or commissioner panel of freeholders is substantive in light of the special nature of eminent domain proceedings, the fact that the Colorado Supreme Court has upheld the right to demand a jury specifically of freeholders,59 and the fact that the federal rules applicable to traditional condemnation cases defer to state law regarding whether a claim may be tried by jury or commission or both.60 Attorney fees and costs. Finally, there is a potential discrepancy between state and federal law concerning the entitlement to attorney fees and costs. With respect to a Fifth Amendment takings claim, a federal court may, in its discretion, award attorney fees and costs to the prevailing party.61 For an inverse condemnation claim brought under the Colorado Constitution, a property owner is entitled to attorney fees and costs if the court enters judgment in favor of the plaintiff and federal financial assistance is available for the project or program for which the property was taken.62 For takings that do not involve federal financial assistance, there is no clear Colorado law concerning the entitlement to attorney fees and costs. In a traditional condemnation case, CRS § 38-1-122(1.5) mandates an attorney fees and costs award to property owners who obtain an award that equals or exceeds 130% of the last written offer made before the filing of the condemnation suit. Yet there is no authority regarding whether a property owner in an inverse condemnation case is similarly entitled to attorney fees and costs. Whether a prevailing property owner in an inverse condemnation suit is entitled to attorney fees and costs could be subject to certification if it becomes relevant in a suit brought in federal court. To the extent that a federal court exercises its discretion to award attorney fees and costs pursuant to 42 USC § 1988, the question would obviously be irrelevant. However, the question will become extremely important if a federal court declines to award attorney fees and costs,

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because CRS § 38-1-122(1.5) is mandatory if it applies. If a state court were to clarify that CRS § 38-1-122(1.5) applies in inverse condemnation suits, a federal court would likely apply it, because the Tenth Circuit has previously held that attorney fees and costs are a substantive matter that is controlled by state law.63 Conclusion Litigating inverse condemnation suits in federal court is an intriguing option for plaintiffs who were previously forced to litigate their claims in state court. Nevertheless, practitioners should carefully consider the potential advantages and disadvantages of litigating these suits in federal district court, particularly in light of the number of complex and unsettled choice-of-law issues that are likely to arise. This area of the law

should rapidly develop in the coming years as federal district courts are faced with what is likely to be an increasing number of inverse condemnation claims.

Jennifer Lake is a civil litigator focusing on complex commercial litigation, eminent domain, and real estate related litigation. Most recently, she practiced with Waas Campbell Rivera Johnson & Velasquez LLP in Denver. Before that, Lake clerked for the Hon. Robert N. Scola Jr. of the US District Court for the Southern District of Florida. She also spent four years as a trial attorney at the US Department of Housing and Urban Development—jennifer.r.lake@gmail.com. Coordinating Editor: Christopher D. Bryan, cbryan@garfieldhecht.com

NOTES

1. The US Constitution provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. The Colorado Constitution provides that “private property shall not be taken or damaged, for public or private use, without just compensation.” Colo. Const. art. II, § 15. 2. Knick v. Twp. of Scott, Penn., 139 S.Ct. 2162 (2019). 3. Williamson Cty. Reg’l Planning Comm’n, 473 U.S. 172 (1985). 4. Id. at 194 (internal quotations and citations omitted). 5. Id. at 194–97. 6. See, e.g., Wilkinson v. Pitkin Cty. Bd. of Cty. Comm’rs, 142 F.3d 1319, 1322–25 (10th Cir. 1998) (holding that “the Williamson ripeness requirement is insufficient to preclude application of res judicata and collateral estoppel principles,” id. at 1324, and concluding that the district court correctly dismissed the inverse condemnation claim that had already been litigated in state court). 7. See, e.g., Dodd v. Hood River Cty., 136 F.3d 1219, 1227–28 (9th Cir. 1998) (holding that plaintiffs were precluded from bringing an inverse condemnation claim in federal court after litigating the claim in state court, despite the fact that plaintiffs explicitly asked the state court to refrain from addressing the federal takings claim to preserve their right to a federal forum). 8. See, e.g., Rainey Bros. Constr. Co. v. Memphis and Shelby Cty. Bd. of Adjustment, 178 F.3d 1295 (6th Cir. 1999) (unpublished opinion) (holding that plaintiff was precluded from bringing an inverse condemnation claim in federal court due to previous state court litigation, even though the state court erroneously held that plaintiff’s inverse condemnation claim was barred by the state governmental immunity statute). 9. See, e.g., Dodd v. Hood River Cty., 59 F.3d 852, 860–61 (9th Cir. 1995) (“We disagree, however, with the suggestion that Williamson County is a thinly-veiled attempt by the Court to eliminate the federal forum for Fifth Amendment taking plaintiffs . . . .”). Id. at 861. 10. San Remo Hotel, L.P. v. City and Cty. of San Francisco, 545 U.S. 323 (2005). 11. Id. at 343–44 (“Unfortunately for petitioners, it is entirely unclear why their preference for a federal forum should matter for constitutional or statutory purposes.”) (emphasis in original). 12. Knick, 139 S.Ct. at 2167. 13. Id. at 2168–69. 14. Id. at 2169. 15. Id. at 2170. 16. Id. at 2179. 17. Id. at 2187. 18. Id. at 2181. 19. Id. at 2187–88. 20. See, e.g., Bear Crest Ltd. v. Idaho, 4:18-cv-00469-CWD, 2019 WL 3220575 at *4–5 (D. Idaho


July 17, 2019) (denying motion to dismiss inverse condemnation claim against county); Mohit v. City of Haines City, 8:18-cv-1775-T17JSS, 2019 WL 3465251 at *6–7 (M.D.Fla. July 9, 2019) (denying motion to dismiss inverse condemnation claim against city). 21. Providence City v. Thompson, 1:19-cv-88, 2019 WL 4932759 at *4 (D. Utah Oct. 7, 2019). 22. Williams v. Utah Dep’t of Corrs., 923 F.3d 1209, 1212–14 (10th Cir. 2019); Bay Point Props., Inc. v. Miss. Transp. Comm’n, 937 F.3d 454, 456–57 (5th Cir. 2019). 23. See, e.g., Williams, 923 F.3d at 1213 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). 24. Ryckman Jr., “Land Use Litigation, Federal Jurisdiction, and the Abstention Doctrines,” 69 Cal. L. Rev. 377, 378–79 (1981) (citing United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 150 (1965)). 25. See id. at 379. 26. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). See also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (noting that federal courts must apply state law to state claims properly before the court through supplemental jurisdiction); 12 Wright et al., Federal Practice and Procedure § 3055 (Westlaw Aug. 2019 update). 27. KLK, Inc. v. U.S. Dep’t of Interior, 35 F.3d 454, 457 (9th Cir. 1994) (citations omitted). 28. Warne v. Hall, 373 P.3d 588, 593 (Colo. 2016) (noting that “the Colorado Rules of Civil Procedure were modeled almost entirely after the corresponding federal rules, with the principal goal of establishing uniformity between state and federal judicial proceedings in this jurisdiction.”) (citations omitted). 29. Tegeler v. Schneider, 114 P. 288, 289 (Colo. 1911). See also Schneider v. Schneider, 86 P. 347, 348–49 (Colo. 1906). 30. See, e.g., Auraria Businessmen Against Confiscation, Inc. v. Denver Urban Renewal Auth., 517 P.2d 845, 847 (Colo. 1974) (“Constitutional objections to the eminent domain proceedings should be raised in those proceedings and be determined by the court in limine and not by way of a collateral injunction proceeding.”); Ambrosio v. Baker Metro. Water and Sanitation Dist., 340 P.2d 872, 873 (Colo. 1959). 31. See, e.g., Thornton Dev. Auth. v. Upah, 640 F.Supp. 1071, 1080 (D.Colo. 1986). 32. See Colo. R. Evid. Preamble (“The [Colorado] Rules parallel the Federal Rules of Evidence . . . .”). 33. Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579 (1993). 34. People v. Shreck, 22 P.3d 68 (Colo. 2001). 35. See, e.g., Palizzi v. City of Brighton, 228 P.3d 957, 959 (Colo. 2010) (noting expansive evidentiary rules for property valuation in condemnation cases and holding that “all evidence relevant to the determination of the present market value of condemned property is admissible”); City of Englewood v. Denver Waste Transfer, L.L.C., 55 P.3d 191, 195 (Colo. App. 2002) (admissibility of evidence regarding

property value is governed by an expansive, rather than restrictive, rule). 36. Sch. Dist. No. 12 v. Sec. Life of Denver Ins. Co., 179 P.3d 1, 5 (Colo.App. 2007), rev’d on other grounds, 185 P.3d 781 (Colo. 2008). See also 5 Nichols on Eminent Domain § 21.02[1][a] (Matthew Bender 3d ed. 2009) (“[I]f the properties are reasonably similar, and a qualified expert is of the opinion that the price brought by one affects or tends to show the value of the other, it is better to leave the dissimilarities to examination and crossexamination than to exclude the testimony.”). 37. See, e.g., Bd. of Cty. Comm’rs v. Vail Assocs., 468 P.2d 842, 846–47 (Colo. 1970). 38. City of Westminster v. Jefferson Ctr. Assocs., 958 P.2d 495, 497–98 (Colo.App. 1997) (holding that sale of platted, partially finished parcel was admissible as comparable sale for unplatted, vacant land) (internal citations omitted). 39. Sch. Dist. No. 12, 179 P.3d 1, 5. See also 5 Nichols on Eminent Domain § 21.02[1][a] (“[I]f the properties are reasonably similar, and a qualified expert is of the opinion that the price brought by one affects or tends to show the value of the other, it is better to leave the dissimilarities to examination and crossexamination than to exclude the testimony.”). 40. United States v. 8.11 Acres of Land More or Less in Cty. of Grand, Colo., No. 17-cv-01553RM-SKC, 2019 WL 3425229 at *4 (D.Colo. July 30, 2019). 41. Id. 42. Id. at *1, *4. 43. Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 880–82 (10th Cir. 2006) (concluding that Oklahoma law generally barring admission of two types of expert reports was a procedural rule). However, this rule applies only to the original Federal Rules of Evidence. Amendments to the Federal Rules of Evidence have been adopted under the Rules Enabling Act, and the Tenth Circuit has held that amendments are governed by Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). James River Ins. Co. v. Rapid Funding LLC, 658 F.3d 1207, 1218 (10th Cir. 2011) (citations omitted). Pursuant to Shady Grove, a diversity court must first determine whether the federal rule and state law conflict. Id. If there is a conflict, then the court must decide whether application of the federal rule represents a valid exercise of authority under the Rules Enabling Act. Id. 44. Sims at 882–83 (citations omitted). 45. See supra note 1. See also City of Northglenn v. Grynberg, 846 P.2d 175, 179 (Colo. 1993); Mosher v. City of Boulder, 225 F.Supp. 32, 35 (D.Colo. 1964) (noting that “the Colorado Constitution affords an aggrieved property owner a greater measure of protection than does the Constitution of the United States. The United States Constitution requires compensation only where there has been an actual taking.”). 46. See Mosher, 225 F.Supp. at 35–36 (holding that the court did not have subject matter jurisdiction over plaintiff’s claim because the US Constitution does not afford protection for

takings that do not involve a physical invasion of property). 47. Batten v. United States, 306 F.2d 580, 585 (10th Cir. 1962) (internal quotations and citations omitted). 48. See 12 Wright et al., supra note 26 at § 3055. 49. See, e.g., “Fifth Amendment—Takings Clause—State Litigation Requirement—Knick v. Township of Scott,” 133 Harv. L. Rev. 322, 330–31 (Nov. 8, 2019) (noting that given state courts’ recognized primacy in takings claims, “it is likely that federal courts will continue to depend on certification procedures . . . .”). 50. See Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 593–94 (1968). 51. La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28–29 (1959). 52. For example, currently pending before the Colorado Supreme Court is the question whether a restrictive covenant is a compensable property interest under the Colorado Constitution’s Takings Clause. Raymond Decker and Forest View Co. v. Town of Monument, Case No. 18SC793. 53. See, e.g., Bd. of Cty. Comm’rs of Weld Cty. v. Loyd Hodge & Sons, Inc., 534 P.2d 638, 639 (Colo.App. 1975). 54. James River Ins. Co., 658 F.3d at 1215, n.1. 55. Hornick v. Boyce, 280 Fed. Appx. 770, 774 (10th Cir. 2008) (citations omitted). 56. Id. at 774–75. 57. KLK, Inc., 35 F.3d at 458 (holding that a plaintiff is not entitled to a jury determination of just compensation in an inverse condemnation suit); 38 CRS § 38-1-105(1) (providing property owner the right to a trial by a jury of freeholders or a panel of three commissioners); Ossman v. Mountain States Tel. & Tel. Co., 520 P.2d 738, 742 (Colo. 1974) (holding that the right to demand a jury of freeholders should be afforded to landowners in inverse condemnation proceedings). 58. City of Aurora ex rel. Colo. v. Erwin, 706 F.2d 295, 299 (10th Cir. 1983). 59. See, e.g., East Denver Mun. Irrigation Dist. v. Altura Farms Co., 60 Colo. 452, 454 (1916); State Dep’t of Highways v. Ogden, 638 P.2d 832, 833 (Colo.App. 1981) (remanding for new trial where parties discovered after original trial that a juror was not a freeholder). 60. Fed. R. Civ. P. 71.1(k). 61. 42 USC § 1988(b). 62. CRS § 24-56-116. 63. See, e.g., Mooring Capital Fund, LLC v. Knight, 388 Fed. Appx. 814, 825 (10th Cir. 2010) (citing Combs v. Shelter Mut. Ins. Co., 551 F.3d 991, 1001 (10th Cir. 2008)).

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Nonjudicial Settlement Agreements under the CUTC What Are the Limits? BY CA ROL WA R N IC K

This article considers how to use nonjudicial settlement agreements in connection with trust administration, estate planning, and related disputes.

I

n 2018, the Colorado Legislature passed Colorado’s version of the Uniform Trust Code (UTC), the Colorado Uniform Trust Code (CUTC), with an effective date of January 2, 2019. A previous Colorado Lawyer article covered a range of ways to modify irrevocable trusts, including the use of methods set forth in the CUTC.1 This article digs deeper into one of the more exciting areas of the CUTC, the CRS §

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15-5-111 provision for a nonjudicial settlement agreement (NJSA), which states that “any person may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust, regardless of whether the settlement agreement is supported by consideration”2 unless an NJSA violates a material purpose of the trust or includes terms that could not be properly approved by a court.3

The CUTC’s NJSA provision opens up a world of new opportunities for trustees and beneficiaries who discover during a trust administration that the trust isn’t working as intended and needs to be modified. This may be due to factors such as changed circumstances, changes to state or federal law, or just plain bad drafting. Moreover, the CUTC encourages using NJSAs to resolve trustee and beneficiary disputes by


giving NJSAs the same credence as if they were approved by a court. This article provides an overview of NJSAs and their uses. The Parameters CRS § 15-5-111 defines the required parties to an NJSA and describes the terms and conditions required for a valid NJSA.

Required Parties CRS § 15-5-111 specifies the parties who are required to sign an NJSA as “those persons whose interests in the trust would be materially affected by its provisions”4 if the agreement had instead been approved by the court. The comments to corresponding UTC § 111 state that the definition of “interested persons” is intentionally vague because of the wide variety of matters that might be handled by an NJSA. As a practical matter, because non-signatories to an NJSA are not bound by it, anyone against whom enforcement of the agreement might be sought should be included as a signatory. Typically, the parties to the NJSA are the trustee, the beneficiaries (both current and remainder), and anyone else interested in the issues covered by the agreement. Material Purpose As stated above, an NJSA is valid in Colorado only if it does not violate a material purpose of the trust.5 The CUTC does not define a trust’s material purpose, but this is generally the settlor’s intent in creating the trust. Unless the settlor is alive, the terms of the trust must be examined to determine the material purpose. The drafting attorney may also be able to help by expounding on the material purpose through the attorney’s notes, recollections, extrinsic evidence, and comments from family members. Under the CUTC, a spendthrift clause is not presumed to be a material purpose of a trust.6 When crafting an NJSA, drafters should consider the pros and cons of stating the trust’s material purpose in the trust document itself. While stating the trust’s material purpose in the document might make it easier to argue that a proposed modification does not violate such material purpose, it may also limit the use of an NJSA if the stated material purpose is too narrow.

While stating the trust’s material purpose in the document might make it easier to argue that a proposed modification does not violate such material purpose, it may also limit the use of an NJSA if the stated material purpose is too narrow.

Terms and Conditions An NJSA cannot contain terms and conditions that a court could not properly approve, such as provisions that would terminate a trust prematurely (e.g., if the termination violated a material purpose of the trust) or that might be against public policy. The specific matters that are resolvable under the statute include, but are not limited to: ■ the interpretation or construction of the trust terms; ■ the approval of a trustee’s report or accounting; ■ the direction to a trustee to refrain from performing a particular act, or the grant to a trustee of any necessary or desirable power; ■ a trustee’s resignation or appointment, and the determination of a trustee’s compensation; ■ the transfer of a trust’s principal place of administration; and ■ a trustee’s liability for an action relating to the trust.7 By explicitly stating that these factors are non-exhaustive, the CUTC is arguably more expansive than the UTC, which does not contain the “but are not limited to” language in its list of factors. In addition, because NJSAs are applicable to “any matter involving a trust,”8 Colorado practitioners have an open door to be creative when determining when to use an NJSA. The CUTC’s NJSA provision was clearly enacted to save interested parties the time and expense of going to court for matters that they can easily decide themselves. The CUTC NJSA statute also allows any person whose interest in the trust is affected by the NJSA to request court approval or disapproval of the NJSA. However, the court’s scrutiny is limited to determining “whether the representation as provided in Part 3 of this code was adequate,” and “whether the agreement contains terms and conditions the court could have properly approved.”9 Part 3 deals with representation of a person by another, and among other things, specifically approves virtual representation. Therefore, a court is not permitted to examine the NJSA to approve or disapprove the result; it may only determine whether the M AY 2 0 2 0

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representation of the parties is adequate and the NJSA’s terms and conditions could have been properly approved by the court. Relevant Probate Code Provisions The NJSA remedy in the trust context is similar to existing Colorado Probate Code remedies. CRS § 15-12-912 provides that private agreements may be made among the decedent’s successors to alter the interests, shares, or amounts to which they are entitled under the decedent’s will or the intestacy statutes, as set forth in a written agreement. Such an agreement could also include the termination of a testamentary trust. These agreements bind the personal representative subject only to “his or her obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his or her office for the benefit of any successors of the decedent who are not parties.”10 A decedent’s successors are generally the heirs and devisees but also include, for purposes of CRS § 15-12-912, trustees of a testamentary trust. However, this statute does not relieve trustees of any duties owed to trust beneficiaries in the context of implementing the agreement. Similar to the CUTC, the statute also states that the agreement does not have to be supported by consideration. Colorado case law also supports the idea that the personal representative is bound by an agreement among the parties that is approved by the court.11 Another Colorado Probate Code provision allows courts to approve a compromise of a controversy related to admission to probate of a document offered for formal probate as the will of a decedent.12 It also covers controversies over the construction, validity, or effect of any probated will; the rights of any successor in the decedent’s estate; or the estate’s administration. The statute states that such compromise is binding on all parties (including those who are unborn, unascertained, or who could not be located) if approved in a formal court proceeding for that purpose. The compromise is also binding even if it affects a trust or an inalienable interest; however, it will “not impair the rights of creditors or taxing authorities who are not parties to it.”13

These statutes offer useful remedies where a trust is involved with a will that is being probated. But what if all the estate assets are included in a revocable trust when the decedent dies and no probate is required or desired? An NJSA can provide the remedy. Using NJSAs for Trust Modifications NJSAs also offer another means to handle trust modifications. They have an advantage over trust modifications under CRS § 15-5-411 in that court approval is not required. And in some instances, using an NJSA might be preferable to decanting a trust because an NJSA could be simpler to accomplish, and it applies in a broader range of circumstances.14 NJSA statutes in other states vary concerning the use of NJSAs for trust modifications. Some states have an exclusive and limited list of matters that are permitted to be handled under an NJSA,15 while others specifically authorize NJSAs for trust modifications.16 A few states prohibit the use of NJSAs for a trust modification.17 It appears that the Colorado statute’s expansive language allows Colorado practitioners to use NJSAs for trust modifications, including ■ removing and replacing trustees; ■ changing trustee provisions, including appointing a distribution trustee, an investment trustee, or a special purpose trustee; ■ changing dispositive provisions to set up a beneficiary’s share as a third-party special needs or self-settled trust, to enable a beneficiary who recently became disabled to receive assistance yet not lose governmental benefits; ■ terminating a trust that is no longer necessary; ■ giving a beneficiary a general power of appointment, or distributing certain trust assets outright to obtain a step-up in basis under IRC § 1014(a); ■ dividing a single trust with multiple beneficiaries into separate trusts, or vice versa; ■ providing for trustee succession; ■ revising administrative provisions to conform to rules imposed by corporate fiduciaries;


■ providing for unanticipated circumstances in a beneficiary’s life, such as divorce, drug abuse, medical illness, or mental illness; ■ allowing the trustee to hold a concentrated stock position; ■ modifying a trust to avoid the creation of a credit shelter trust when it is no longer needed for estate tax purposes; ■ fixing a scrivener’s error; ■ modifying a trust so uneconomical or unneeded sub-trusts may be distributed to the beneficiaries outright; ■ allowing the trustee to hold a portion of a family business and provide guidelines therefor; ■ overcoming traditional common law self-dealing rules if the trust is silent on the issue; ■ allowing a change of situs if the trust is either silent on the issue or has untenable situs provisions, or for tax advantages; and ■ granting a limited power of appointment to an independent trustee or trust protector to modify the dispositive terms or interests of the trust, which could be an alternative to decanting. This list is illustrative of some possible uses for NJSAs. The drafter could also state the settlor’s preference that disputes be resolved or changes be allowed using an NJSA, or on the other hand, forbid their use with regard to that particular trust. Undoubtedly, more uses for NJSAs will emerge over time. Example of an NJSA in Action The following example illustrates the benefits of using an NJSA for trust modification purposes by featuring some well-known characters. Imagine a trust created by the Wicked Witch of the West, who gave her trustee, Glinda the Good Witch, the trust power to name her successor trustee. As we all know, the Wicked Witch of the West was melted when Dorothy threw a bucket of water on her. Unfortunately, Glinda the Good Witch was condemned unjustly at the Salem witch trials before she had a chance to name a successor trustee, and the trust was silent on appointing a trustee when no successor was named.

The pre-mortem NJSA could be particularly useful in foreclosing postdeath arguments about the settlor’s capacity where the signatories agree that (1) the settlor has the capacity the sign the trust documents, and (2) there was no undue influence surrounding the execution of the documents.

” In flew the Winged Monkeys, the trust beneficiaries. The trust clearly stated that its material purpose was to take care of the Winged Monkeys, but what could they do to manage the trust administration? The Winged Monkeys could simply agree on the appointment of a new trustee and a trustee compensation arrangement.18 Or they could go

further and use an NJSA to comprehensively modify the trust to provide them more flexibility without having to go to court. In addition to naming a successor trustee and working out a compensation agreement, they could, for example, ■ add a provision to provide for the appointment of a successor trustee to fill future vacancies; ■ modify the trust to clarify any ambiguous language to avoid issues in the future; or ■ provide that the trustee could continue to hold a concentrated stock position in the Wizard of Oz’s company, OZ, Inc., which the Wicked Witch of the West held in her trust before her death and that was paying a substantial dividend. Pre-Mortem Proceedings A settlor might also use an NJSA to preclude disputes similar to the way a declaratory judgment confirms the validity of a testator’s estate plan while the testator is still alive. The settlor could request that everyone who could potentially contest the estate plan sign an NJSA. Because a court may determine the validity of a trust document, using an NJSA to make that same determination meets the requirement that an NJSA include terms and conditions that a court could properly approve. In addition, having the living settlor sign the NJSA attesting to the trust’s material purpose militates against the filing of a future contest on this issue. And a potentially disgruntled beneficiary may be less likely to refuse to sign the NJSA or bring an action contesting the trust while the settlor is still alive and competent. The Wyoming trust code provides for pre-mortem proceedings to ascertain the validity of a revocable trust and to prevent future contests.19 Because the CUTC provides that an NJSA has the same effect as an agreement approved by a court, an NJSA could similarly be used in Colorado before the settlor’s death to achieve the same result in validating the settlor’s estate plan. Assuming that all interested parties were signatories to it, the NJSA should preclude a later challenge by a signatory, or at a minimum, provide the basis for a post-death motion to dismiss. M AY 2 0 2 0

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FEATURE | TITLE TRUST AND ESTATE LAW

The pre-mortem NJSA could be particularly useful in foreclosing post-death arguments about the settlor’s capacity where the signatories agree that (1) the settlor has the capacity the sign the trust documents, and (2) there was no undue influence surrounding the execution of the documents. It would be hard later to dispute the evidence of the best witness—the settlor—that there was no undue influence, that the settlor signed the document, that it reflects his or her desires, and that he or she signed it according to applicable law.20 Moreover, a beneficiary’s refusal to sign the NJSA would signal to the settlor a likely future challenge. The settlor could then respond accordingly by, for example, adding a no contest provision that forfeits a devise to the contesting party. Thus, using an NJSA for a pre-mortem court determination can help settlors reduce the risk of a trust contest after their death and secure their estate plans. Tax Issues Drafters must consider possible transfer taxes and/or income taxes when creating an NJSA. While the NJSA is considered as binding as a court decision on the signatories, it is not a decision by the highest court in the state. Therefore, the IRS may not be similarly bound by its terms.21 Gift tax may result when an NJSA is used to resolve a dispute. Generation-skipping transfer (GST) tax can also result from modifications to trust terms, as can income tax if there is a gain recognition event. Treas. Reg. § 25.25111(c) states that a gift tax may result from a transaction “in which an interest in property is gratuitously passed or conferred upon another, regardless of the means or device employed.” The key is whether the conferral of the asset was gratuitous. In a private letter ruling (PLR) concerning the income, gift, estate, and GST tax consequences of a settlement agreement,22 the IRS focused on (1) whether a viable dispute existed under state law; (2) whether the transfer of the asset from one beneficiary to another was part of a settlement based on a valid and enforceable claim asserted by the parties; and (3) whether, to the extent feasible, the settlement produced an economically fair

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result reflective of applicable state law that would be applied by the highest court in the state.23 The matter came before the IRS after an adversarial process before the court and extensive settlement negotiations in which the trustees and beneficiaries of a trust agreed to a settlement under which the trust would terminate and its assets be divided into two trusts. The IRS determined that the issues were bona fide and resulted from enforceable claims by both parties; therefore, there was no application of income, GST, or gift tax.24 Conclusion NJSAs are a versatile new tool for handling trust administration and related disputes and helping secure estate plans. They enable settlors to fend off potential trust contests and allow

beneficiaries and administrators to resolve disputes in a cost-efficient manner. Attorneys assisting clients with a trust should include NJSAs as an option when considering all possible ways to facilitate the administration and modification of trusts and related disputes.

Carol Warnick is a partner with Holland & Hart in Denver. She focuses her practice on estate and wealth transfer planning and administration, and probate and trust litigation. Warnick also mediates trust and estate related disputes. She practices in Colorado, Utah, and Wyoming—cwarnick@hollandhart.com. Coordinating Editors: David W. Kirch, dkirch@dwkpc.net; Emily Bowman, ebowman@dwkpc.net

NOTES

1. Gardner and Wiener, “Is the Irrevocable Trust Really Irrevocable?” 47 Colo. Law. 56 (Oct. 2018). 2. CRS § 15-5-111(1). 3. CRS § 15-5-111(3). 4. CRS § 15-5-111(2). 5. CRS § 15-5-111(3). 6. CRS § 15-5-411(3). 7. CRS § 15-5-111(4). 8. CRS § 15-1-111(1). 9. CRS § 15-5-111(5). 10. CRS § 15-12-912. 11. Estate of Masden, 24 P.3d 634 (Colo.App. 2001). 12. CRS § 15-12-1101. 13. Id. 14. However, decanting is sometimes preferable. As discussed in Gardner and Wiener, supra note 1 at 58, one such example is where a beneficiary receives a reduced interest pursuant to an NJSA to which he or she has consented and may be deemed to be making a taxable gift to the other beneficiaries. The advantage to decanting in this circumstance is that the beneficiary would not be required to give consent and thus could avoid a taxable transaction. 15. E.g., North Carolina, N.C. Gen. Stat. § 36C-1-111(b); and South Carolina, S.C. Code Ann. § 62-7111(b). 16. E.g., New Hampshire, N.H. Rev. Stat. § 565-B:1-111(d)(7); and Oregon, Or. Rev. Stat. Ann. § 130045(5)(i). 17. E.g., Iowa, Iowa Code § 663A.6308.2; and Michigan, Mich. Comp. Laws § 700.7111(2). 18. CRS § 15-5-111(4)(d). 19. W.S. § 4-10-604. Six other states have similar pre-mortem statutes: Alaska, Arkansas, New Hampshire, North Carolina, North Dakota, and Ohio. However, these statutes deal with wills, not trusts. See Preteroti and D’Andrea, “Where There is a Will, Is There a Way? Getting the Last Word on Your Estate Plan,” Tax Mgmt. Estates, Gifts and Trusts J., vol. 46, 11, 314 (Nov. 9, 2017), https:// www.bakerlaw.com/webfiles/Tax/2019/Articles/D’Andrea-Bloomberg-Article.pdf. 20. Of course, the NJSA could be subject to challenge based on allegations of the settlor’s lack of capacity or subjection to undue influence related to the signing of the NJSA. 21. Comm’r v. Estate of Bosch, 387 U.S. 456 (1967). 22. A PLR only binds the parties to the ruling, but PLRs are often indicative of how the IRS might react to a similar situation. 23. PLR 201530008, https://www.irs.gov/pub/irs-wd/201530008.pdf. 24. Id. at 8.


Continue Exploring Community CBA!

Collaborate Strike up conversations with members, share best practices, and upload documents and links.

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Network Request and make referrals, get insight from colleagues about legal issues, and expand your professional network.

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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 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.

Larimer County Bar Presidential Visit CBA President Kathleen Hearn Croshal visited the Larimer County Bar Association on March 6 to provide updates about the CBA and gather input from LCBA members.

Metro Volunteer Lawyers Walk-in Clinic On March 4 the MVL team and volunteers took over the walk-in clinic at the Denver Indian Center.

The MVL team.

1 1 Iain MacArthur, Lara Moore, and Dan St. John. 2 Kathleen and CBA Past President Dick Gast share a laugh.

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 at jespinoza@ cobar.org, and be sure to select the largest file size when prompted. 2

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YLD Movie Screening of Just Mercy On March 2, the DBA Young Lawyers paired up with the Colorado Criminal Defense Bar, Coloradans for Alternatives to the Death Penalty, and ACLU of Colorado to host a screening of the film Just Mercy at the Alamo Theater. The film was followed by a panel discussion featuring Herman Lindsay, a death row exoneree, and Senator Julie Gonzales, one of two Senate sponsors of a bill to repeal the death penalty in Colorado.

Meet CBA YLD Council Member Philip Nickerson Philip Nickerson is the newest member of the CBA YLD council. Philip is a law clerk for the Honorable S. Kato Crews at the US District Court for the District of Colorado. In August, he will be joining Davis Graham & Stubbs LLP as an associate in their trial group. Before moving back to Colorado, Philip was an associate at a boutique commercial litigation and real estate firm in San Antonio, Texas. In addition to serving on the CBA YLD Executive Council, Philip is the co-chair of the Judicial Endorsement Committee for the Sam Cary Bar Association and a Mentor in the “Law School…Yes We Can” legal pipeline program. Philip received his JD/MBA from the University of Denver Sturm College of Law in 2017. During his free time, Philip enjoys spending time with his wife Laura, playing and watching sports, reading, and traveling.

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“Pandangit—What Do I Do Now?” In March, CBA partner Affinity Consulting Group hosted a webinar on how to quickly set up a remote or mobile office to adapt to the growing pandemic. Presenter Jeffrey Schoenberger offered practical tips on how to maintain client relationships while also being a good citizen and practicing social distancing. Over 170 attendees joined the webinar.

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Program attendees await the screening. DBA YLD board members Matthew Broderick (chair) and Kelly Page.

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AROUND BAR | BAR NEWS TITLE | THE SUB TITLE

CLI Ball For All—A Night in New Orleans The Center for Legal Inclusiveness hosted its annual Ball for All Gala on February 29 to celebrate the community’s efforts to create more diverse and inclusive workplaces in Colorado. This year’s Mardi Gras-themed event featured live music, New Orleans-inspired food, and Bourbon St. cocktails.

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Judge Gary Jackson and his wife Regina. Inclusiveness@Work Award recipients Patricia Jarzobski and Hetal Doshi. Patricia Jarzobski, Phyllis Wan, and Ryann Peyton.

ABOTA Recognizes Colorado Chapter The Colorado Chapter of the American Board of Trial Advocates was named the 2019 Chapter of the Year. ABOTA is a national organization with chapters in all 50 states whose mission is to preserve jury trials in civil cases and to promote professionalism. ABOTA comprises both plaintiff and defense lawyers who have tried at least 10 cases and have been nominated and elected to membership. In 2019, the Colorado Chapter was honored to have one of its members, John Rodman, serve as the national president of the ABOTA Foundation, which is the educational arm of ABOTA. Additionally, 2019 Colorado Chapter President Pete Ramirez received the ABOTA Foundation Founders Award for his innovative use of a telethon to increase Foundation membership. 1 Colorado Chapter Past President Pete Ramirez and current President Jan Spies accept ABOTA's Chapter of the Year Award. 2 2019 National ABOTA President John Rodman with Founders Award recipient Pete Ramirez.

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Home Work Last month, as the CBA temporarily transitioned to a full-time remote organization, some staffers had to get creative with their new workspaces—while others contended with furry coworkers with questionable social distancing habits. To share your work-athome photos, email jespinoza@cobar.org (use the subject line “Home Work”).

Young Lawyers in Action Last fall, Katie Ahles filed an expedited enforcement action on behalf of a client whose ex-spouse abducted their two children in violation of an international custody determination. Pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act, a hearing must be held on the next judicial day after the respondent is served. At the emergency hearAhles. ing, Katie was able to obtain orders for the safe return of the children to their habitual country of residence. The court also approved Katie’s request for the children to meet with a mental health professional before leaving Colorado to reduce their emotional stress. Katie graduated from the University of Colorado Law School in 2015 and practices family law at Hogan Omidi Family Law. With the help of her mentors, two of whom are also young lawyers, Katie tried her first case the week after she was licensed to practice and appears in court regularly. Nick Lutz of Rathod Mohamedbhai LLC recently argued on behalf of plaintiffs against a motion to dismiss in the US District Court for the District of Utah. Following a fatal police shooting, plaintiffs brought claims based on excessive force; violations of the Equal Protection Clause; and a custom, pattern, and practice of racially biased policing. Defendants Lutz. moved to dismiss. Lutz argued numerous issues, including whether and how the court should view video evidence at the motion to dismiss stage, the pleading standards under the Equal Protection Clause, and use of deadly force and municipal liability standards generally.

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Contribute Send your stories of young lawyers taking meaningful action in court to Jessica Espinoza at jespinoza@cobar.org. Provide the name of the young attorney; a high-resolution photo of the young attorney; the name of the supervising attorney and/or law firm supporting the young attorney; and a 50- to 100- word summary of the action taken in court. Please keep the descriptions general and do not identify the client.

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Mindful Meditation Webinar Over 500 people signed up for the CBA’s recent webinar on mindfulness to learn some meditation techniques for coping with uncertainty. The webinar was led by Jeema Cho and cohosted by the Colorado Women’s Bar Association

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"I believe you have my stapler." Lap of luxury. IT support. Ironing out the kinks.

Jeema Cho leads a virtual meditation practice.

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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 Sizes and Cost Quarter page vertical ■ 3.75" wide x 4.25" tall ■ $250 CBA members; $350 nonmembers

Half page horizontal ■ 7.75" wide x 4.25" tall ■ $400 CBA members; $525 nonmembers Full page ■ 7.75" wide x 8.875" tall ■ $750 CBA members; $900 nonmembers

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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.

LAWYERS’ ANNOUNCEMENTS DEADLINES ISSUE

DEADLINE

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February

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March

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April

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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 at advertising@cobar.org.

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Questions? Contact Jessica Espinoza at advertising@ cobar.org.

December

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Announcements received past deadline will be accommodated as space permits. Payment must be received by deadline to secure placement.


Brian McConaty is pleased to announce that he will be joining John Astuno of counsel in the practice of civil plantiff law effective May 1, 2020. With this transition, Brian will also be retiring from defense practices.

Brian McConaty

John Astuno

Brian's New Location Information: John Astuno Law 1290 Broadway Suite 600 Denver, CO . 80203

p: 303.861.7636 e: Brian.McConaty@outlook.com

John Astuno Jr. Attorney at Law

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TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

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PLEASE JOIN US IN WELCOMING

STEVE SUNESON AS A SHAREHOLDER OF THE FIRM

Mr. Suneson focuses on crossborder and international commercial transactions and business law. Steve Suneson ssuneson@joneskeller.com 303-573-1600 Denver, Colorado JonesKeller.com

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TITLE AROUND | THE SUB TITLE BAR | IN MEMORIAM

In Memoriam Steven W. Farber September 21, 1943–March 4, 2020 Longtime Denver attorney Steve Farber passed away peacefully at his home on March 4, 2020, surrounded by his family. Steve grew up in Denver, attending Colfax Elementary, Lake Junior High, and North High School. He earned his undergraduate degree from the University of Colorado–Boulder in 1965. Upon graduating from CU Law in 1968, Steve teamed up with classmates Norm Brownstein and Jack Hyatt to found what is now Brownstein Hyatt Farber Schreck, LLP, a firm encompassing 13 offices and more than 500 attorneys and policy professionals across the country. The firm’s ability to thrive for more than 50 years is a testament to Steve’s leadership, work ethic, and entrepreneurial spirit. Throughout his career, Steve was one of the most respected and accomplished leaders in the country. He inspired change not only at the firm, but throughout Colorado and across the nation. At the center of many of the Front Range’s landmark projects, Steve put together funding for Denver International Airport, the E-470 highway, and the T-REX project. He represented ASCENT Corporation, the former owner of the Denver Nuggets and the Avalanche. He negotiated deals for the Denver Broncos and helmed the site committee that brought the Democratic National Convention to Denver in 2008. A lifelong Democrat, Steve honed his political chops early in his career helping college classmate and fraternity brother Hank Brown, a Republican who later joined the firm as a partner, win election to Congress. While he remained comfortable working across the aisle, Steve became known as a powerhouse Democratic fundraiser and strategist starting

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in the mid-1980s when he ran the first of Roy Romer’s three successful campaigns for governor. Friends for decades with Bill and Hillary Clinton, Steve co-chaired the Clinton Global Initiative in Denver for two years and was a top fundraiser for Hillary Clinton’s presidential campaigns, belonging to the group of bundlers known as “Hillblazers,” who raised more than $100,000. Steve was actively involved in many charitable and community causes. A year after receiving a transplanted kidney from his son Gregg in 2004, he founded and chaired the American Transplant Foundation, which works to eliminate the shortage of transplant organs. He was on the board of trustees of the Anti-Defamation League, Children’s Diabetes Foundation, Race to Erase MS Foundation, and Children’s Hospital Foundation. He was also a member of the boards of Citywide Banks, Denver Health Foundation, Aurora EDC and Alliance for Choice in Education, and he chaired Denver Hospice’s capitol campaign. Steve is survived by his wife of 48 years, Cindy; sons Gregg, Brent, and Brad; and grandchildren Andie, Riley, Blake, Ruby, Jake, and James. Donations in his memory may be made to the American Transplant Foundation, www. classy.org/give/271987/#!/donation/checkout. Loyal E. Leavenworth September 6, 1949–February 14, 2020 Loyal (“Lee”) Leavenworth passed away in his own bed at his longtime home in Missouri Heights after fighting a long disease. He was preceded in death by his beloved golden retrievers Jessup, Jake (“Fluffy”), and Jo-Jo. He is survived by his loving wife Joanie, sons Thatcher and Luke, sister Lin, brothers Dave and Tom, and grandson Miles.

Lee was described by a friend and former partner as a legendary lawyer on Colorado’s Western Slope and beyond. Driving from Rifle to Aspen, you will pass by multiple projects that he helped bring to fruition, from the Rifle Business Park to multiple properties in Glenwood Springs to much of Basalt, including all of Willits. His genius helped shape municipal policy and water law throughout Colorado. He was truly a man of a bygone era. Lee grew up in Canton, Ohio, and moved to Colorado after high school. He graduated cum laude from the University of Colorado in 1971, obtained his law degree from the University of Wisconsin in 1976, and clerked for the Colorado Court of Appeals. He moved to the Roaring Fork Valley and practiced law in Glenwood Springs from the late 1970s through 2010. Lee had a brilliant mind and a photographic memory and could quote the law by paragraph and page number without opening a book. He was a patient and generous mentor for scores of attorneys who passed through his office, including many of today’s most prominent lawyers in the Roaring Fork Valley. He represented countless developers, special districts, and municipalities over the years, including Basalt, Rifle, New Castle, Blue River, Silt, Buena Vista, Salida, Meeker, Rangely, Parachute, and the Colorado River Water Conservation District. He served as the president of the Colorado Municipal League. Lee was exceptionally funny and loved to share laughs with his family, friends, and colleagues. He was equally comfortable at formal events in Aspen, goofing around on Lake Powell, sharing a meal at the old Sopris Restaurant, or riding a gondola in the canals of Venice. He was relentless in the pursuit of his clients’ interests. He would often come up with ingenious and novel solutions to issues, and to close the deal he could dictate a 40-page agreement off the top of his head.


Although he suffered from disease, he continued to work until his death. His humor and always sound advice will be missed by family, friends, and colleagues alike. Marvin Wolf March 3, 1931–March 15, 2020 Marvin Eli Wolf, oil and gas pioneer, attorney, arts patron, and philanthropist, died peacefully on March 15 in Denver. Marvin was born in Kimball, Nebraska in 1931 to Leon and Dora Wolf, and raised in Cheyenne, Wyoming, where his father was the tailor on the Francis E. Warren Air Force Base. Marvin’s first jobs were on base delivering laundry and hauling ice blocks. He earned his undergraduate degree from Northwestern University in 1952 and his law degree from the University of Colorado Law School in 1954. He was admitted to the Colorado bar and briefly practiced law, but was intrigued by the oil and gas industry. He and his brother Erving soon founded the Wolf Land Co., which later became the Inexco Oil Co. Under their leadership, Inexco discovered Wyoming’s 4 trillion-cubic-foot Madden Gas Field, one of the largest natural gas reserves in the United States, and the Key Lake Uranium Mine in Saskatchewan, Canada, which once produced 15% of the world’s uranium. Inexco was acquired by Louisiana Gas, and while his brother Erving continued on with the larger company, Marvin chose to remain independent and opened Wolf Energy in Denver. Many of the city’s leading oilmen passed through the halls of his company, and it was often referred to as “Wolf University” for its ability to contribute quality professionals to the oil and gas industry. Marvin held leadership positions with the Rocky Mountain Oil and Gas Association and was inducted into the Colorado Oil and Gas Hall of Fame. Though he was a practicing attorney for only a short time, as a licensed attorney Marvin maintained a deep affinity for the study and development of lawyers. He proudly carried his “bar card” for Colorado Attorney Registration #37 in his wallet every day. His connection to CU

Law deepened over time and he counted among his close personal friends the school’s successive deans and many faculty members over the years. In 1981, his challenge grant provided the funds for CU Law’s Natural Resources Law Center (now the Getches-Wilkinson Center). He also funded the Wolf Scholarship for law students who were members of the CU Law Review; the Judi Wolf Scholarship for law students committed to advocating women’s issues; and, in memory of Judi’s father, the Jules Milstein Scholarship, given to faculty for excellence in published legal research. He also endowed chairs at the dean’s discretion under the names of both Dean Nichol and Dean Getches and, with his brothers, led the campaign to build a new building for the law school. That new building, named for his parents Leon and Dora Wolf, provided CU Law with a bright future for the study of law in Colorado. Marvin had a sustained dedication to education, and these combined scholarships and donations provide hundreds of people the opportunity to pursue excellence in legal scholarship. Marvin received CU Law’s Norlin Award in 1993, an honorary Order of the Coif award in 1997, and the law school’s most distinguished honor, the Knous Award, in 2003. Marvin was extraordinarily proud that his daughter Wendy (’84), stepson Marco (’97), and grandchildren William (’17) and Meredith (’18) graduated from his beloved alma mater. Throughout his life, Marvin, with his wife Judi, had a passion for the performing arts. While he always loved football and never missed a chance to enjoy and critique the Denver Broncos, it was the performing arts that brought him the most joy. He regularly attended the theater, symphony, opera, and ballet for as long as he could, and provided significant support to all of the performing arts in Colorado. The Denver Center for the Performing Arts (DCPA) became central to Marvin’s life and his efforts to contribute to the community. When the Buell Theater at the DCPA was under construction, he collaborated with Donald Seawell to create the Marvin and Judi Wolf Reception Room at the Buell Theater. Both Marvin and Judi hosted countless performance intermissions in the Wolf Room with cookies and milk while they transmitted their passion for the arts to everyone

around them. The Wolf Room collaboration also provided Marvin with one of his most significant personal friendships. Marvin and Donald Seawell were inseparable, dining together every Sunday, traveling together frequently, continuing to improve the arts with programs like the Best of Broadway, and laying the foundations for the future of the city’s performing arts with the DCPA redevelopment that is presently underway. They found in each other the same qualities of discipline, service, and leadership and their efforts ensured a lasting legacy of support and excellence for Denver’s performing arts. This legacy will be evident later in 2020, when the DCPA reopens the Stage Theatre as the Marvin and Judi Wolf Theatre. Marvin also supported other notable institutions throughout Colorado, including Opera Colorado, the Denver Symphony Orchestra, the Denver Art Museum, Temple Emanuel of Denver, and the Anti-Defamation League. Marvin is survived by Judi, his wife of 37 years; daughter Wendy Kaufman, her husband Bob Kaufman, and their children John, William, and Meredith; stepson Lance Chayet, his wife Barbara Chayet, and their children Grant and Logan; stepson Victor Chayet, his wife Susan Chayet, and their son Devon; and stepson Marco Chayet, his wife Paige Chayet, and their son Caleb. Donations in his memory may be sent to the University of Colorado Foundation for the benefit of the Leon and Dora Wolf Scholarship, 1800 Grant Street, Denver, CO 80203.

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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Colorado Supreme Court Rules Committees Notice of Request for Comments Colorado Rules of Professional Conduct Deadline for Comments: June 9, 2020 at 5 p.m. The Colorado Supreme Court requests written public comments by any interested person on the proposed Rules 7.1–7.5 of The Colorado Rules of Professional Conduct. 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 June 9, 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.

Rule Change 2020(01) Colorado Rules of Civil Procedure Rules 8, 16.2, 65.1, 103, 108, 121, § 1-23, 121, § 1-24, 403, 408, and 509 Rule 8. General Rules of Pleading (a)–(b) [NO CHANGES]

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(c) Affirmative Defenses and Mitigating Circumstances. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. Any mitigating circumstances to reduce the amount of damage shall be affirmatively pleaded. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (d)–(f) [NO CHANGES]

assets or liabilities pursuant to this paragraph. This paragraph does not limit other remedies that may be available to a party by law. (f)–(j) [NO CHANGES]

Rule 16.2. Court Facilitated Management of Domestic Relations Cases and General Provisions Governing Duty of Disclosure (a)–(e)(9) [NO CHANGES] (e)(10) As set forth in this section, it is the duty of parties to an action for decree of dissolution of marriage, legal separation, or invalidity of marriage, to provide full disclosure of all material assets and liabilities. If a disclosure contains a misstatement or omission materially affecting the division of assets or liabilities, any party may file and the court shall consider and rule on a motion seeking to reallocate assets and liabilities based on such a misstatement or omission, provided that the motion is filed within 5 years of the final decree or judgment. The court shall deny any such motion that is filed under this paragraph more than 5 years after the final decree or judgment. The provisions of C.R.C.P. 60 do not bar a motion by either party to allocate such

Section 1. Writ of Continuing Garnishment (on Earnings of a Natural Person) (a)–(j) [NO CHANGES] (k) Answer and Tender of Payment by Garnishee. (1) The garnishee shall file the answer to the writ of continuing garnishment with the clerk of the court and send a copy to the judgment creditor no less than 7 nor more than 14 days following the time the judgment debtor receives earnings for each pay period affected by such writ, or 42 days following the date such writ was served pursuant to section (1)(d) of this rule, whichever is less. However, if the judgment creditor is represented by an attorney, or is a collection agency licensed pursuant to section 5-16-101, et seq., C.R.S., the garnishee shall pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings to the attorney or the licensed collection agency. (k)(2)–(k)(3) [NO CHANGES]

COMMITTEE COMMENT [NO CHANGE] Rule 65.1. [Reserved] Rule 103. Garnishment This rule sets forth the exclusive process for garnishment. There shall be five (5) types of writs: (1) Writ of Continuing Garnishment, (2) Writ of Garnishment with Notice of Exemption and Pending Levy, (3) Writ of Garnishment for Support, (4) Writ of Garnishment—Judgment Debtor Other Than Natural Person, and (5) Writ of Garnishment in Aid of Writ of Attachment.


(l) Disbursement of Garnished Earnings. (1) If no objection is filed by the judgment debtor within 7 days after the judgment debtor received earnings for a pay period, the garnishee shall send the nonexempt earnings to the attorney, collection agency licensed pursuant to section 5-16-101, et seq., C.R.S., or court designated on the writ of continuing garnishment (C.R.C.P. Form 26, page 1, paragraph e). The judgment creditor shall refund to the judgment debtor any disbursement in excess of the amount necessary to satisfy the judgment. (l)(2)–(m) [NO CHANGES] Section 2. Writ of Garnishment (on Personal Property Other Than Earnings of a Natural Person) with Notice of Exemption and Pending Levy (a)–(f) [NO CHANGES] (g) Court Order on Garnishment Answer. (1) If an answer to a writ with notice shows the garnishee is indebted to the judgment debtor, the clerk shall enter judgment in favor of the judgment debtor and against the garnishee for the use of the judgment creditor in an amount not to exceed the total amount due and owing on the judgment and if the judgment creditor is pro se, request such indebtedness paid into the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to 5-16-101, et seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency. (g)(2)–(i) [NO CHANGES]

such indebtedness be paid into the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to section 5-16-101, et seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency. In no event shall any judgment against the garnishee be more than the total amount due and owing on the judgment. (f )(2)–(g) [NO CHANGES] Section 5 [NO CHANGES] Section 6. Judgment Debtor’s Objection— Written Claim of Exemption—Hearing (a)–(a)(3) [NO CHANGES] (4) The judgment debtor shall, by certified mail, return receipt requested, immediately deliver a copy of such objection to the garnishee and the judgment creditor’s attorney of record, or if

none, to the judgment creditor. If the garnishee has been directed to transmit the nonexempt earnings to an attorney or a collection agency licensed pursuant to section 5-16-101, et seq., C.R.S., then upon receipt of the objection, the garnishee shall transmit the nonexempt earnings to the clerk of the court. (a)(5)–(e) [NO CHANGES] Section 7–End [NO CHANGES] Rule 108. Affidavits An affidavit may be sworn to either within or without this state before any officer authorized by law to take and certify the acknowledgment of deeds conveying lands. When any rule of civil procedure requires an affidavit or other sworn declaration, an unsworn declaration under C.R.S. § 13-27-101 et seq. may be used in its place.

Section 3 [NO CHANGES] Section 4. Writ of Garnishment—Judgment Debtor Other Than Natural Person (a)–(e) [NO CHANGES] (f) Court Order on Garnishment Answer. When the judgment debtor is other than a natural person: (1) If the answer to a writ of garnishment shows the garnishee is indebted to such judgment debtor, the clerk shall enter judgment in favor of such judgment debtor and against the garnishee for the use of the judgment creditor for the amount of the indebtedness shown in such answer and if the judgment creditor is pro se, request M AY 2 0 2 0

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Rule 121. Local Rules— Statewide Practice Standards (a)–(c) [NO CHANGE] Section 1–1 to 1–22 [NO CHANGE] Section 1–23 BONDS IN CIVIL ACTIONS 1.–7. [NO CHANGE] 8. Proceedings against Surety or other Security Provider. When these rules require or permit the giving of a bond or other type of security, the surety or other security provider submits to the jurisdiction of the court. The liability of the surety or other security provider may be enforced on motion without the necessity of an independent action. At the time any party seeks to enforce such liability, it shall provide notice of its motion or other form of request to all parties of record and the surety or other security provider in accordance with C.R.C.P. 5(b). 9. Definition. The term “bond” as used in this rule includes any type of security provided to

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stay enforcement of a money judgment or any other obligation including providing security under C.R.C.P. 65. COMMENTS [NO CHANGE] Section 1–24 to 1–26 [NO CHANGE] Rule 121. Local Rules— Statewide Practice Standards (a)–(c) [NO CHANGE] Section 1–1 to 1–23 [NO CHANGE] Section 1–24 Reserved Section 1–25 to 1–26 [NO CHANGE] Rule 403. Garnishment This rule sets forth the exclusive process for garnishment. There shall be five (5) types of writs: (1) Writ of Continuing Garnishment, (2) Writ of Garnishment with Notice of Exemption and Pending Levy, (3) Writ of Garnishment for Support, (4) Writ of Garnishment—Judgment

Debtor Other Than Natural Person, and (5) Writ of Garnishment in Aid of Writ of Attachment. Section 1. Writ of Continuing Garnishment (on Earnings of a Natural Person) (a)–(j) [NO CHANGES] (k) Answer and Tender of Payment by Garnishee. (1) The garnishee shall file the answer to the writ of continuing garnishment with the clerk of the court and send a copy to the judgment creditor no less than 7 nor more than 14 days following the time the judgment debtor receives earnings for each pay period affected by such writ, or 42 days following the date such writ was served pursuant to section (1)(d) of this rule, whichever is less. However, if the judgment creditor is represented by an attorney, or is a collection agency licensed pursuant to section 5-16-101, et seq., C.R.S., the garnishee shall pay any nonexempt earnings and deliver a


calculation of the amount of exempt earnings to the attorney or the licensed collection agency. (k)(2)–(3) [NO CHANGES] (l) Disbursement of Garnished Earnings. (1) If no objection is filed by the judgment debtor within 7 days after the judgment debtor received earnings for a pay period, the garnishee shall send the nonexempt earnings to the attorney, collection agency licensed pursuant to section 5-16-101, et seq., C.R.S., or court designated on the writ of continuing garnishment (C.R.C.P. Form 26, page 1, paragraph e). The judgment creditor shall refund to the judgment debtor any disbursement in excess of the amount necessary to satisfy the judgment. (l)(2)–(m) [NO CHANGES]

such judgment debtor and against the garnishee for the use of the judgment creditor for the amount of the indebtedness shown in such answer and if the judgment creditor is pro se, request such indebtedness paid into the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to 5-16-101, et seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency. In no event shall any judgment against the garnishee be more than the total amount due and owing on the judgment. (f)(2)–(g) [NO CHANGES]

Section 2. Writ of Garnishment (on Personal Property Other Than Earnings of a Natural Person) With Notice of Exemption and Pending Levy (a)–(f) [NO CHANGES] (g) Court Order on Garnishment Answer. (1) If an answer to a writ with notice shows the garnishee is indebted to the judgment debtor, the clerk shall enter judgment in favor of the judgment debtor and against the garnishee for the use of the judgment creditor in an amount not to exceed the total amount due and owing on the judgment and if the judgment creditor is pro se, request such indebtedness be paid to the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to 5-16-101, et seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency. (g)(2)–(i) [NO CHANGES]

Section 6. Judgment Debtor’s Objection— Written Claim of Exemption—Hearing (a)–(a)(3) [NO CHANGES] (4) The judgment debtor shall, by certified mail, return receipt requested, immediately deliver a copy of such objection to the garnishee and the judgment creditor’s attorney of record, or if none, to the judgment creditor. If the garnishee has been directed to transmit the nonexempt earnings to an attorney or a collection agency licensed pursuant to section 5-16-101, et seq., C.R.S., then upon receipt of the objection, the garnishee shall transmit the nonexempt earnings to the clerk of the court. (a)(5)–(e) [NO CHANGES]

Section 3 [NO CHANGES] Section 4. Writ of Garnishment—Judgment Debtor Other Than Natural Person (a)–(e) [NO CHANGES] (f) Court Order on Garnishment Answer. When the judgment debtor is other than a natural person: (1) If the answer to a writ of garnishment shows the garnishee is indebted to such judgment debtor, the clerk shall enter judgment in favor of

Section 5 [NO CHANGES]

Section 7–End [NO CHANGES] Rule 408. Affidavits An affidavit may be sworn to either within or without this state before any officer authorized by law to take and certify the acknowledgment of deeds conveying lands. When any rule of civil procedure requires an affidavit or other sworn declaration, an unsworn declaration under C.R.S. § 13-27-101 et seq. may be used in its place. Rule 509. Parties, Representation and Intervention (a) [NO CHANGES] (b) Representation. (1) Partnerships and Associations. Notwithstanding the provisions of article 93 of title 13,

C.R.S., in the small claims court, an individual shall represent himself or herself; a partnership shall be represented by an active general partner or an authorized full-time employee; a union shall be represented by an authorized active union member or full-time employee; a for-profit corporation shall be represented by one of its full-time officers or full-time employees; an association shall be represented by one of its active members or by a full-time employee of the association; and any other kind of organization or entity shall be represented by one of its active members or full-time employees or, in the case of a nonprofit corporation, a duly elected nonattorney officer or an employee. (b)(2)–(c) [NO CHANGES] Amended and Adopted by the Court, En Banc, March 5, 2020, effective immediately. By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(02) Rules of Procedure for Judicial Bypass of Parental Notification Requirements Rules 1, 2, and 3 and JDF 11 Rules of Procedure for Judicial Bypass of Parental Notification Requirements Rule 1. Applicability This rule applies to proceedings instituted pursuant to Section 13-22-707(1)(g), C.R.S. which allows for judicial bypass of the parental notification requirements set forth in the Colorado Parental Notification Act, Sections 13-22-701, et seq. concerning abortions to be performed on unemancipated minors. Rule 2. Petition for Waiver of Parental Notification Requirements (a) [NO CHANGES] (b) Expedited Proceedings. Court proceedings under this rule shall be given preference over other pending matters and shall be heard and decided as soon as practicable but in no event later than four calendar days after the petition was filed. If the court fails to act M AY 2 0 2 0

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within four calendar days, the court in which the proceeding is pending shall immediately issue an order setting forth that the parental notification requirements have been dispensed with by operation of law, pursuant to Section 13-22-707(1)(f ), C.R.S. (c)–(e) [NO CHANGES] (f) Grounds for waiver. In review of the petition, the court shall enter an order dispensing with the notice requirements of Section 13-22-704, C.R.S. if: (1) the court determines, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to have an abortion; or (2) the court determines, by a preponderance of the evidence, that the giving of parental notice would not be in the best interest of the minor. (g)–(h) [NO CHANGES] Rule 3. Appeal to The Court of Appeals (a)–(b) [NO CHANGES] (c) Decision. A decision shall issue no later than five calendar days after the notice of appeal was filed. If no decision is rendered within five days, the court shall immediately issue an order setting forth that the parental notification requirements have been dispensed with by operation of law, pursuant to Section 13-22-707(1)(f ), C.R.S. A certified copy of any order issued shall be provided to the minor by the method requested in the petition, the minor’s attorney, if represented, and the guardian ad litem, if one has been appointed. A certified copy of the order also shall be provided to the attending physician of the minor, as set forth in the petition. Amended and Adopted by the Court, En Banc, March 5, 2020, effective immediately. By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(03) Colorado Probate Code Forms Rule Change 2020(03) repeals JDF 999SC of the Colorado Probate Code Forms.

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Amended and Adopted by the Court, En Banc, March 5, 2020, effective immediately. By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(04) Colorado Rules of Criminal Procedure Rule 43. Presence of the Defendant (a)–(e) [NO CHANGE] (f ) Public Health Crisis Exception (1) If the court finds that a public health crisis exists, it may require the defendant to appear by contemporaneous audio communication (such as by phone) at arraignment and any proceeding listed in subsections (e)(2)(I), (II), (III), (V), (VI), (VII), and (VIII) of this rule. During any contemporaneous audio communication proceeding under this subsection (f ) (1), defense counsel must be in the physical presence of the defendant unless the court permits defense counsel’s participation from a different location, in which case a separate, confidential communication line (such as a phone line) must be available to allow counsel to confer with the defendant. A contemporaneous audio communication proceeding under this subsection (f )(1) shall be conducted in a courtroom open to the public and in a manner that allows members of the public to hear, and, where appropriate, participate in the proceeding. (2) If the court finds that a public health crisis exists, it may, in its discretion and with the defendant’s oral or written consent, allow the defendant to appear by an interactive audiovisual device for a preliminary hearing, entry of a plea, sentencing associated with that plea, a deferred judgment violation hearing, a probation violation hearing, sentencing following the revocation of a deferred judgment or probation, or a transfer hearing following termination of placement in community corrections. This subsection (f )(2) shall only apply in cases where none of the offenses charged is included within those offenses enumerated in C.R.S. 24-4.1-302(1). Use of an interactive audiovisual device under this subsection (f)(2) must comply

with subsections (e)(1) and (e)(3)(I) and (III) of this rule. Comment [NO CHANGE] Amended and Adopted by the Court, En Banc, March 19, 2020, effective immediately. By the Court: Carlos A. Samour Jr. Justice, Colorado Supreme Court

Rule Change 2020(05) Colorado Rules of Criminal Procedure Rule 43. Presence of the Defendant (a)–(e) [NO CHANGE] (f ) Public Health Crisis Exception (1) If the court finds that a public health crisis exists, it may require the defendant and counsel to appear by contemporaneous audio communication (such as by phone) at arraignment and any proceeding listed in subsections (e)(2)(I), (II), (III), (V), (VI), (VII), and (VIII) of this rule. During any contemporaneous audio communication proceeding under this subsection (f )(1), the court must allow counsel the opportunity to confer with the defendant confidentially when necessary. A contemporaneous audio communication proceeding under this subsection (f ) (1) shall be conducted in a courtroom open to the public or in a manner that allows members of the public to hear and, where appropriate, participate in the proceeding. (2) If the court finds that a public health crisis exists, it may, in its discretion and with the defendant’s oral or written consent, allow the defendant and counsel to appear by an interactive audiovisual device for a preliminary hearing, entry of a plea, sentencing associated with that plea, a deferred judgment violation hearing, a probation violation hearing, sentencing following the revocation of a deferred judgment or probation, or a transfer hearing following termination of placement in community corrections. This subsection (f )(2) shall only apply in cases where none of the offenses charged is included within those offenses enumerated in C.R.S. 24-4.1-302(1). During any interactive audiovisual proceeding under this subsection (f )(2), the court must


allow counsel the opportunity to confer with the defendant confidentially when necessary. An interactive audiovisual proceeding under this subsection (f )(2) shall be conducted in a courtroom open to the public or in a manner that allows members of the public to hear or watch and, where appropriate, participate in the proceeding. Use of an interactive audiovisual device under this subsection (f)(2) must comply with subsection (e)(1) of this rule. Comment [NO CHANGE] Amended and Adopted by the Court, En Banc, March 23, 2020, effective immediately. By the Court: Carlos A. Samour Jr. Justice, Colorado Supreme Court

Rule Change 2020(06) Colorado Rules of Criminal Procedure Rule 43. Presence of the Defendant (a)–(e) [NO CHANGE] (f ) Public Health Crisis Exception (1) If the court finds that a public health crisis exists, it may require the defendant and counsel to appear by contemporaneous audio communication (such as by phone) at arraignment and any proceeding listed in subsections (e)(2)(I),

(II), (III), (V), (VI), (VII), and (VIII) of this rule. During any contemporaneous audio communication proceeding under this subsection (f)(1), the court must allow counsel the opportunity to confer with the defendant confidentially when necessary. A contemporaneous audio communication proceeding under this subsection (f )(1) shall be conducted in a courtroom open to the public or in a manner that allows members of the public (including victims) to hear and, where appropriate, participate in the proceeding. (2) If the court finds that a public health crisis exists, it may, in its discretion and with the defendant’s oral or written consent, allow the defendant and counsel to appear by an interactive audiovisual device for a preliminary hearing, entry of a plea, sentencing associated with that plea, a deferred judgment violation hearing, a probation violation hearing, sentencing following the revocation of a deferred judgment or probation, or a transfer hearing following termination of placement in community corrections. During any interactive audiovisual proceeding under this subsection (f) (2), the court must allow counsel the opportunity to confer with the defendant confidentially when necessary. An interactive audiovisual proceeding under this subsection (f)(2) shall be conducted in a courtroom open to the public or in a manner that allows members of the public

(including victims) to hear or watch and, where appropriate, participate in the proceeding. Use of an interactive audiovisual device under this subsection (f)(2) must comply with subsection (e)(1) of this rule. Comment [NO CHANGE] Amended and Adopted by the Court, En Banc, March 30, 2020, effective immediately. By the Court: Carlos A. Samour Jr. Justice, Colorado Supreme Court

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.

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Disciplinary Case Summaries No. 19PDJ036. People v. Abrams. 2/12/2020. A hearing board suspended Robert E. Abrams (attorney registration number 37950) for three months, all stayed upon the successful completion of an 18-month probationary period, with conditions to include cultural sensitivity training. The probation took effect March 18, 2020. Abrams was hired by a married couple to file a construction contract lawsuit against their former builder. During the course of the

litigation, Abrams developed a negative opinion of the judge presiding over the case. In an email to his clients, Abrams referred to the judge using a derogatory slur that exhibited bias or prejudice on the basis of sexual orientation. This conduct violated Colo. RPC 8.4(g) (in representing a client, a lawyer shall not engage in conduct that exhibits or is intended to appeal to or engender bias against a person based on the person’s race, gender, religion, national

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origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process). Abrams ultimately secured a favorable outcome for his clients, but the relationship soured and he withdrew from the representation. His clients reported him to the disciplinary authorities. After responding to the clients’ disciplinary grievance, Abrams charged them for the time his firm spent preparing a response in the disciplinary matter. Abrams did not reverse those charges for 13 months. This conduct violated Colo. RPC 1.5(a) (a lawyer shall not charge an unreasonable fee or an unreasonable amount for expenses). The case file is public per CRCP 251.31. No. 19PDJ034. People v. Bath. 1/27/2020. Following a sanctions hearing, the Presiding Disciplinary Judge disbarred David Eugene Bath (attorney registration number 05679). The disbarment took effect March 2, 2020. Bath represented a client in a personal injury claim arising from an automobile accident against an at-fault driver. As part of the representation, Bath requested from the client’s treating provider a lien agreement on behalf of his client, whereby the client’s medical bills would be paid on a lien basis. The treating provider agreed, and Bath executed the lien agreement. When the client’s case later settled, Bath withheld the full lien amount from her settlement funds disbursement in accordance with the lien agreement. But Bath never notified the treating provider that the case had settled, nor did he provide the lien funds to the treating provider. Rather, he kept the lien amount himself, along with his attorney fees. To date, Bath has not paid the lien. Through this conduct, Bath violated 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 1.15A(c) (a lawyer shall keep separate any property in which two or more persons claim an interest until there is a resolution of the claims); and Colo. RPC 8.4(c) (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. 19PDJ083. Dixon v. People. 3/9/2020. Following an appearance by the parties under CRCP 251.29(j), the Presiding Disciplinary Judge approved the parties’ stipulation and reinstated Eric D. Dixon (attorney registration number 23799) to the practice of law, effective March 9, 2020. The parties agreed that Dixon has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law. No opinion was issued. The case file is public per CRCP 251.31. No. 20PDJ010. People v. Feldman. 3/10/2020. The Presiding Disciplinary Judge approved the parties’ amended conditional admission of misconduct and publicly censured Thomas Andrew Feldman (attorney registration number 15341), effective April 14, 2020, with conditions of formal practice monitoring for one year. Feldman failed to submit a brief in a client’s appeal of the denial of her Social Security Disability Insurance claim. He also failed to explain to the client why her appeal was later denied. Feldman had many opportunities to be forthcoming about his failure to file the required brief, as the client repeatedly asked about the status of her case and requested her documents. But Feldman continued to mislead the client through omission of the relevant facts for several months, because he was embarrassed that he had failed to diligently manage her case. Through this conduct, Feldman violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client); Colo. RPC 1.4 (a lawyer shall reasonably communicate with the client); 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. 19PDJ072. People v. Gilman. 3/11/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Ryan Charles Gilman (attorney registration number 44179) for three years, effective April 15, 2020. To be reinstated, Gilman

must formally petition for reinstatement; he will be required to prove by clear and convincing evidence that he has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law. In one matter, Gilman was hired by a husband and wife to prepare estate planning documents. The couple paid Gilman a flat fee of $4,500 when he was retained; Gilman did not retain a copy of the fee agreement. He deposited the flat fee into his personal checking account the next day. He consumed the entire fee five months before he stopped working on the matter. Although Gilman met with the clients in July 2017 to execute the documents, his clients were unable to sign the documents then because sufficient witnesses were not present. Gilman then kept the documents; he did not give the clients the originals or copies. The clients were unable to reach Gilman until spring 2019. Gilman ultimately refunded $1,000 to the clients in February 2020. Gilman represented another client in a criminal appeal matter. Gilman failed to update his registration records with the Office of Attorney Registration after that representation had ended. Because Gilman’s contact information was not current, the client’s subsequent counsel was unable to reach Gilman for five months, causing significant delay in obtaining the client’s file. Through this conduct, Gilman violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client); Colo. RPC 1.4(a)(2) (an attorney shall reasonably consult with a client about the means by which the client’s objectives are to be accomplished); Colo. RPC 1.5(a) (a lawyer shall not charge an unreasonable fee or an unreasonable amount for expenses); 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 1.15B(a) (2) (a lawyer in private practice shall maintain a business account into which the lawyer shall deposit funds received for legal services); Colo. RPC 1.15D(a)(3) (a lawyer shall maintain copies of all written communications setting forth the basis or rate for the lawyer’s fees); Colo. M AY 2 0 2 0

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RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including returning unearned fees and any papers and property to which the client is entitled); Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); 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. 20PDJ016. People v. McAuliffe. 3/19/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Daniel C. McAuliffe (attorney registration number 28067), effective March 19, 2020. McAuliffe represented a party in a civil dispute. Soon after he withdrew from the representation, the opposing party sought an award

of attorney fees jointly and severally against him and his former clients. Although McAuliffe was not properly served with the motion, he did receive actual notice that the matter was pending when opposing counsel mailed him a copy of the motion. McAuliffe did not respond. Later, after the court entered an award for damages against him, he filed a motion to set aside the order in which he misrepresented that he had no notice of the opposing party’s motion. The trial court denied his motion. On appeal, McAuliffe did not clarify whether he had received actual notice or legal notice of the motion, even though opposing counsel specifically discussed this distinction with him. Through this conduct, McAuliffe violated 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.

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No. 20PDJ013. People v. Romney. 3/10/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Sherman P. Romney (attorney registration number 22670) for three years, effective April 14, 2020. To be reinstated, Romney must formally petition for reinstatement; he will be required to prove by clear and convincing evidence that he has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law. The parties also stipulate that if Romney is reinstated, he will not object to certain conditions, including two years of financial monitoring and attendance at ethics school and trust school. The sanction took into account compelling mitigating circumstances. Over a period of several months, Romney repeatedly directly deposited unearned funds into his operating account and transferred unearned funds from his trust account into his operating account. Romney also consistently failed to use written fee agreements with clients and failed to set forth sufficient benchmarks for flat fee agreements. Through this conduct, Romney violated Colo. RPC 1.5(h)(1) (a lawyer shall include specific benchmarks for earning a portion of a flat fee, if any portion is to be earned before conclusion of the representation); Colo. RPC 1.15A(a) (a lawyer shall hold client property separate from the lawyer’s own property); Colo. RPC 1.15D(a) (a lawyer shall maintain trust account records); 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.

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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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FROM COURTS TITLE THE | SUB TITLE | US COURT OF APPEALS FOR THE TENTH CIRCUIT

Summaries of Selected Opinions No. 18-4163. United States v. Bacon. 2/21/2020. D.Utah. Judge Briscoe. Plea Agreement Supplement Filed Under Seal—Common Law Right of Access to Judicial Records—Case-Specific Findings—Plain Error. Defendant pleaded guilty to two counts of bank robbery and one count of robbing a credit union pursuant to a written plea agreement. The plea agreement included a plea supplement describing defendant’s lack of cooperation with

the government in his case. At his combined plea and sentencing hearing, defendant requested permission to file the plea agreement without the plea supplement, because he was concerned for his personal safety that a sealed document shown in the docket would raise questions and inferences at a correctional facility. The district court ordered the plea supplement filed under seal, relying on a District of Utah local rule providing that all plea agreements be

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accompanied by a sealed plea supplement and filed under seal. Defendant refused to sign his plea supplement, and his counsel signed it on his behalf. At a subsequent resentencing hearing, defendant requested that the court strike the sealed plea supplement. The district court ordered the plea supplement filed under seal. On appeal, defendant argued that the district court erred in deciding the sealing question by failing to consider the presumptive right of access to judicial records and not basing its conclusion on the facts and circumstances of his case. There is a presumptive common law right of access to judicial records that is not abrogated by the District of Utah’s local rule. In exercising its discretion to seal judicial records, the district court must weigh the public interest against those advanced by the parties. Thus, the government has the burden of articulating a sufficiently significant interest to justify overriding the presumption. Here, the district court relied on general information that was not on the record or in the local rules, and it neither applied the presumption nor supported its decision with case-specific findings. Therefore, the district court erred in its sealing decision, and the error was plain. The decision was vacated and the case was remanded for further proceedings. No. 18-1468. United States v. Lovato. 2/27/2020. D.Colo. Judge Carson. 911 Call—Hearsay— Present Sense Exception—Contemporaneous Statements—Special Conditions of Supervised Release. A man called 911 to report that he saw two men in a car shoot at another car. The caller identified himself to the 911 operator; followed the shooters’ car during the approximately 13-minute call; and discussed with


the 911 operator the shooting, his continued observations of the car, and his own safety. A short while after the call, an officer located and pursued the shooters’ car. During the pursuit, the car slowed and defendant jumped out of the car’s passenger side. Defendant was arrested and found to be in possession of a pistol and ammunition. Defendant told officers that the car’s driver gave him the pistol and ammunition, pointed a second gun at him, and threatened to shoot him if he did not jump out of the car. The pistol had a spent shell casing in the chamber, which indicated that someone recently fired the weapon. Defendant was charged with three violations of 18 USC § 922(g)(1) for being a felon in possession of a firearm or ammunition. At trial, defendant objected to admission of the 911 call on hearsay grounds. The district court admitted the call into evidence under the Fed. R. Evid. 803(1) present sense impression exception to the hearsay rule. Although defendant admitted to possessing the pistol and ammunition, he raised the affirmative defense of duress caused by the driver’s threat and claimed that the driver was the one who shot at the other car. The 911 call contradicted significant aspects of defendant’s testimony. The jury convicted defendant on two counts. The district court sentenced defendant to imprisonment and imposed a term of supervised release with special conditions. Special Condition Three requires defendant to take all medications that may be prescribed by his psychiatrist and to demonstrate compliance through random blood tests. On appeal, defendant contended that the district court abused its discretion by admitting the 911 call under the present sense impression exception to the hearsay rule because it analyzed the call as a whole. Here, the district court properly analyzed the 911 call as a whole because (1) no authority requires otherwise in this context, (2) all the statements made within the call pertain to the same temporal event without a substantial change in circumstances, and (3) other relevant factors support the reliability of the statements within the call. Defendant also argued that the caller’s statements were not sufficiently contemporaneous to qualify as present sense impressions. The

caller first provided details of the shooting only three or four minutes after observing the event and made the statements in a discrete period without any break, interruption, or intervening event. These facts demonstrate that the caller made the statements with no more than the slight lapse allowed by Rule 803(1) between the event and the statement. Further, the call was sufficiently reliable. Accordingly, the 911 caller’s statements qualified as present sense impressions. Defendant further contended that his prior conviction for attempted second degree assault in Colorado is not for a crime of violence. However, defendant conceded that circuit precedent precludes his assertions on this point. Lastly, defendant argued that the district court committed plain error in ordering Special Condition Three without making any particularized supportive findings. The government conceded error. The conviction was affirmed, Special Condition Three was vacated, and the case was remanded for further proceedings. No. 19-3057. United States v. Lira-Ramirez. 3/6/2020. D.Kan. Judge Bacharach. Illegal Reentry into United States—Notice to Appear—Lack of Jurisdiction. Defendant was served with a Notice to Appear (Notice) for removal proceedings. The Notice failed to state the date and time of the removal hearing, but defendant appeared at the removal hearing and was deported. He was later charged with illegally reentering the United States. Defendant moved to dismiss the indictment. The district court denied the motion. On appeal, defendant argued that the immigration judge lacked jurisdiction because the omission of the date and time in his Notice rendered it defective. Under 8 USC § 1229(a) (1)(G)(i), a notice to appear must state the date and time of the removal hearing. However, precedential Tenth Circuit opinions have held that omission of this information does not create a jurisdictional defect. Even absent these precedents, the transitional provision that had applied between the adoption and effective date of 8 USC § 1229, which temporarily allowed the Attorney General to start removal proceedings

under either the old procedure (with an order to show cause and a notice of hearing) or the new procedure (with a single notice to appear), does not clearly show that § 1229 is jurisdictional. The conviction was affirmed. No. 18-1162. Doe v. University of Denver. 3/9/2020. D.Colo. Judge McKay. Gender Discrimination—Fourteenth Amendment Due Process Clause—Title IX. While a student at the University of Denver (DU), plaintiff had a sexual encounter with a female student. She reported the encounter as a sexual assault, and an internal DU investigation found it more likely than not that plaintiff’s actions resulted in nonconsensual sexual contact in violation of DU’s policies. DU permanently dismissed plaintiff from DU. Plaintiff submitted an internal appeal, but it was denied. Plaintiff then sued DU and some of its employees (collectively, defendants), alleging gender bias in the disciplinary proceeding brought against him in violation of the Fourteenth Amendment’s Due Process Clause and USC Title IX. The district court entered summary judgment for defendants on the Fourteenth Amendment claim, because plaintiff failed to show that DU was a state actor, and on the Title IX claim, because plaintiff had adduced insufficient evidence of gender bias. On appeal, the Tenth Circuit first analyzed the Fourteenth Amendment claim. In support of his claim that DU was a state actor, plaintiff relied solely on evidence of the federal government’s involvement in DU’s affairs. However, the Fourteenth Amendment is concerned only with actions of state governments, and evidence regarding the federal government’s involvement with a private school or its decision to discipline students has no bearing on whether the school is a state actor. Plaintiff thus failed to show that DU is a state actor for purposes of his Fourteenth Amendment claim. Accordingly, the district court properly entered summary judgment on this claim. On the Title IX claim, plaintiff argued that the district court erred in refusing to consider the expert report of a law professor who opined that plaintiff ’s disciplinary proceeding had deficiencies that gave rise to an appearance of bias based on gender stereotypes. However, M AY 2 0 2 0

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plaintiff failed to cite the report in his summary judgment arguments regarding this claim and thus did not meet his burden to cite the particular part of the record he claims should have been considered to support his Title IX argument. Therefore, the district court did not abuse its discretion in not considering the report. Plaintiff also argued that several categories of evidence he adduced in the district court were sufficient to create a genuine dispute regarding whether gender was a motivating factor in the DU proceeding against him. First, plaintiff’s evidence of federal guidance in the 2011 Dear Colleague Letter and the pressure DU felt to comply with its guidance cannot support his summary judgment burden because plaintiff failed to make a particularized showing to indicate that DU’s decision in this case was based on his gender. Second, plaintiff’s statistical evidence showing an overwhelming disparity in the

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gender makeup of sexual assault complainants and sexual assault respondents at DU does not eliminate the nondiscriminatory explanations for the disparity or create a reasonable inference that DU’s decisions regarding the initiation of sexual misconduct proceedings were motivated by considerations of gender. Third, the evidence of DU’s anti-respondent bias does not permit a reasonable inference of discrimination based on gender; plaintiff’s evidence demonstrates at most that DU had an anti-respondent or pro-complainant bias, because both males and females can be respondents. Fourth, plaintiff’s argument that investigators exhibited bias is unsupported because DU’s investigators had an evidence-based reason for reaching their decision, so it would not be plausible or reasonable to infer merely from the investigators’ weighing of the evidence that they were biased. Fifth, a factfinder could not reasonably

infer from the severity of the sanction plaintiff received that DU was motivated by plaintiff’s gender. Sixth, plaintiff ’s contention that an inference of anti-male bias arises from DU’s attempts to encourage sexual misconduct reporting generally is unpersuasive. The district court did not err in determining that plaintiff failed to adduce sufficient evidence to create a genuine dispute that DU was motivated by considerations of gender in the proceeding it brought against him. The summary judgment was affirmed. No. 19-3025. Strauss v. Angie’s List, Inc. 3/9/2020. D.Kan. Judge Murphy. Lanham Act—Commercial Advertising—Four-Part Test. Plaintiff owned a tree trimming/removal business. He paid Angie’s List $200,000 in advertising services fees and coupon retention percentages in an attempt to have his business


appear higher in Angie’s List search results. Plaintiff alleged that he failed to appear in search results for a three-month period and then was “buried” in search-result listings even though he had numerous favorable reviews and a high consumer rating. Plaintiff filed a putative class action against Angie’s List alleging it engaged in false advertising under the Lanham Act and violated the Kansas Consumer Protection Act (KCPA). Angie’s List moved to dismiss the complaint. The district court granted the motion as to most claims, concluding the majority were time barred by laches or the state statute of limitations. The only claims not time-barred were based on statements Angie’s List made on its website in 2016 (the 2016 Website Statements). As to those claims, the district court concluded plaintiff failed to plausibly plead that the statements were made in connection with “commercial advertising or promotion,” an essential element of Lanham Act claims. The court also dismissed the KCPA claims. Plaintiff filed a Fed. R. Civ. P. 59(e) motion to amend or alter the judgment. The district court denied the motion. On appeal, the only issue was whether plaintiff pleaded facially plausible Lanham Act claims based on the 2016 Website Statements. To state such a claim, plaintiff had to show that defendant made false or misleading statements in connection with commercial advertising or promotion of its product. Under Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1273–74 (10th Cir. 2000), the four-part test to determine whether a statement qualifies as “commercial advertising or promotion” for purposes of a Lanham Act false advertising claim requires that the statement be (1) commercial speech, (2) by a defendant who is in commercial competition with plaintiff, (3) for the purpose of influencing consumers to buy defendant’s goods or services, and (4) disseminated sufficiently to the relevant purchasing public to constitute advertising or promotion within that industry. Plaintiff did not argue Angie’s List made the 2016 Website Statements in an attempt to influence consumers to purchase goods and services from Angie’s List or that the district court misapplied the Proctor & Gamble test. Instead, he argued that the Proctor & Gamble test was no longer applicable

in light of Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). However, Lexmark addressed only the question of statutory standing, which was not presented in this appeal. Thus, the Supreme Court did not abrogate the Proctor & Gamble test. The dismissal was affirmed. Nos. 19-1047 & 19-1164. Sandoval v. Unum Life Insurance Co. of America. 3/17/2020. D.Colo. Judge Bacharach. Disability Insurance Policy—Bad Faith—Breach of Contract. Plaintiff had a long-term disability policy with Unum Life Insurance Co. of America (Unum). While working as a training supervisor, she had two surgeries due to pain in her neck and arm. Plaintiff’s surgeon opined that she could not return to work as a training supervisor. Plaintiff submitted an insurance claim to Unum, asserting a disability. Unum awarded disability benefits based on the surgeon’s opinion, but then asked two physicians to review plaintiff’s medical records. Both physicians opined that plaintiff could return to work, and Unum terminated the benefits. Plaintiff sued for bad faith breach of insurance contract, unreasonable conduct under Colorado statutory law, and breach of contract. The district court granted partial summary judgment to Unum on the tort claims. The breach of contract claim was tried, and a jury rendered a verdict for plaintiff. The district court later denied Unum’s motion for judgment as a matter of law. On appeal, plaintiff argued that the district court erred in granting summary judgment to Unum on the tort causes of action because a rational factfinder could justifiably infer that Unum had acted unreasonably in investigating the claim. Because Unum reasonably investigated plaintiff’s claim before denying it, the district court properly granted partial summary judgment to Unum on the tort causes of action. On cross-appeal, Unum challenged the district court’s denial of its motion for judgment as a matter of law on the breach of contract claim, arguing that plaintiff was not disabled under the policy’s disability definition. The policy contained two alternative tests for a disability, and the evidence permitted a reasonable finding that plaintiff had satisfied at least one of these

definitions. The district court thus did not err in denying Unum’s motion for judgment as a matter of law. The judgment was affirmed.

These summaries of selected Tenth Circuit opinions are written by licensed attorneys Katherine Campbell and Jenine Jensen. 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 THE COURTS TITLE | SUB TITLE | COLORADO COURT OF APPEALS

Summaries of Published Opinions March 5, 2020

2020 COA 36. No. 17CA0820. People v. Jiron. Criminal Law—Driving Under the Influence—Prior DUI Convictions—Sentence Enhancer—Sufficiency of Evidence—Collateral Challenge—Reasonable Suspicion—Motion to Suppress—Expert Testimony. An officer responded to a reported assault at a house. As the officer approached the house, defendant was pulling out of the driveway, and the officer pulled over her vehicle. The officer concluded defendant was very intoxicated and arrested her for driving under the influence (DUI). Results of a blood test performed after defendant was taken into custody showed that her blood alcohol content was .334. A jury found defendant guilty of felony DUI and DUI per se. At the sentencing hearing, the trial court found, by a preponderance of the evidence, that defendant had committed three prior DUI offenses and it imposed felony convictions for the DUI and DUI per se counts. On appeal, defendant first contended that her prior DUI convictions were an element of the offense rather than a sentence enhancer and thus had to be proved to the jury beyond a reasonable doubt. Under the plain language of CRS § 42-4-1301(1)(a) and (2)(a), defendants can be convicted of DUI and DUI per se without proof of their prior convictions, so prior convictions are a sentence enhancer that need not be submitted to a jury. Here, the trial court properly applied the preponderance of the evidence standard in determining the existence and validity of the prior convictions. And contrary to defendant’s claim, if the sentence enhancer is a prior conviction, a defendant does not have a constitutional right to have a jury decide whether

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she had such a prior conviction. Further, the felony DUI statutes proscribe different conduct for which the legislature may impose different penalties and thus do not violate defendant’s equal protection rights. Defendant next contended that the prosecution did not present sufficient evidence to prove that she had been convicted of three prior DUI offenses because (1) the trial court erroneously applied the statutory time bar to her collateral attack on one of the convictions, and (2) the prosecution did not establish that she was the person convicted in the prior cases. As to the first claim, defendant’s collateral challenge to her 1998 DUI conviction was time barred and her explanation for the substantial delay in collaterally attacking the previous conviction did not establish justifiable excuse or excusable neglect. As to the second claim, the evidence presented to the court, including defendant’s motor vehicle record and court records, was sufficient to support the court’s finding that defendant had committed at least three prior DUI offenses. Defendant also argued that the trial court erroneously denied her motion to suppress evidence collected from the traffic stop that led to her arrest. Because the officer arrived at the scene in time to see defendant’s car pull out of the driveway, there was a substantial enough connection between the report of a crime and the vehicle leaving the scene to arouse reasonable suspicion on the part of an investigating officer. Accordingly, the trial court did not err in denying defendant’s motion to suppress. Defendant next contended that the trial court erred in admitting testimony concerning her BAC from the certifying scientist because the

testimony violated her constitutional right to confrontation and statutory right to in-person testimony. Although the scientist was not a supervisor, he participated in the testing process as the certifying scientist, reviewed the data and came to an independent conclusion, ensured that the standard operating procedures of the laboratory were followed, and approved the results. Further, the testimony was not inadmissible implied hearsay because the scientist performed his own independent review and reached an independent conclusion in the case. Accordingly, the trial court did not err. Defendant also contended that the trial court erred by allowing testimony from the officer regarding roadside sobriety examinations and blood draws when he was not qualified as an expert witness. The officer’s testimony that defendant was “very intoxicated” was a proper lay opinion based on his perceptions and observations, not any specialized skill or experience. Further, though the officer’s description of the horizontal gaze nystagmus test exceeded the scope of lay testimony, and even assuming that the testimony about the blood draw procedure was also improper, any error in admitting this evidence was harmless when measured against all of the evidence. The judgment was affirmed. 2020 COA 37. No. 18CA1308. People v. Lavadie. Constitutional Law—Sixth Amendment—Advisement. Defendant was charged with multiple felonies. At his first court appearance after his arrest, he rejected the trial court’s offer to appoint an attorney to represent him. When defendant first requested to represent himself, the trial court attempted to give the advisement required by People v. Arguello, 772 P.2d 87 (Colo. 1989), but his answers to the court’s questions during that advisement were unresponsive, and the trial court had difficulty determining whether defendant’s waiver of his right to counsel was knowing and intelligent. The court terminated the advisement, appointed counsel, and refused to consider defendant’s subsequent requests to represent himself. Defendant was represented throughout his trial by alternate defense counsel over his numerous objections. A jury found


defendant guilty of aggravated robbery, felony menacing counts, and misdemeanor theft. On appeal, defendant contended that the trial court violated his Sixth Amendment right to self-representation when it forced him to be represented by counsel despite his repeated and unequivocal requests to represent himself. The trial court properly attempted to determine whether defendant’s waiver of his right to counsel was knowing and intelligent by trying to conduct an advisement of rights. However, the trial court did not expressly tell defendant that (1) his failure to provide responsive answers to its questions would result in an attorney being appointed to represent him, and (2) the court would not consider subsequent requests he made to represent himself. Further, the trial court did not allow defendant an opportunity to indicate that he would engage in an appropriate dialogue with the court when he reasserted at subsequent hearings that he wanted to represent himself. Thus, the trial court violated defendant’s right to self-representation. The judgment was reversed and the case was remanded, with instructions, for a new trial. 2020 COA 38. No. 18CA1646. Garcia v. Centura Health Corp. Hospital Lien Statute—Primary Health Insurance Provider—Medicare—Summary Judgment. Garcia was treated at Centura-St. Anthony North (the hospital) for injuries sustained in an automobile accident. She told the hospital at the time of her treatment that Medicare, Medicaid, and Progressive (her property and casualty insurance carrier) were her insurers. Centura Health Corporation (Centura) billed Progressive, which stated her policy did not cover medical care. Centura then filed a lien against Garcia without first billing Medicare and notified Garcia that it would not bill Medicare. Garcia filed a complaint under CRS § 38-27-101(7), individually and on behalf of a class of others similarly situated, seeking an award of twice the amount of the hospital liens asserted. Centura released the lien and moved to dismiss. Garcia cross-moved for summary judgment. The district court ruled in favor of Centura on both motions. On appeal, Garcia contended that the district court erred by denying her cross-motion for

summary judgment, arguing that Centura violated the hospital lien statute when it filed a hospital lien against her before billing her primary health insurance. Based on the plain language in CRS § 38-27-101, hospitals must bill a patient’s primary private health insurance provider before filing a lien. The statute’s intent is to protect wrongfully injured insured people from the further injury of hospital liens, not to maintain the maximum possible payments for hospitals. When a patient is insured by only Medicare and Medicaid, Medicare is the patient’s primary health insurance. It is undisputed that Medicare was Garcia’s primary health insurance. Thus, Garcia was subject to a lien in violation of CRS § 38-27-101(7) and the district court erred in granting Centura’s motion to dismiss and denying Garcia’s motion for summary judgment. The judgment granting Centura’s motion to dismiss (properly considered a motion for summary judgment) and denying Garcia’s motion for summary judgment was reversed. The case was remanded to enter judgment in favor of Garcia and award her recovery. The Court expressed no opinion on “others similarly situated.” March 12, 2020

2020 COA 39. No. 16CA2203. People v. Martinez-Chavez. Criminal Law—Sentencing— Restitution Hearing. Defendant pleaded guilty to one count of first-degree assault and one count of attempted

sexual assault on a child-victim less than 15 years of age. The People reserved restitution at sentencing but later filed a motion for restitution. Defendant timely objected to the People’s restitution motion and requested a hearing. The trial court determined that all of defendant’s objections were legal arguments that the court could resolve without a hearing, and it entered a restitution order. On appeal, defendant contended that the trial court erred by resolving the motion for restitution without an in-person hearing. When restitution is reserved at the prosecution’s request, if the defendant timely objects to the restitution and demands a hearing he or she is entitled to an in-person hearing. Here, the trial court erred by denying defendant his properly requested hearing. Further, the error was not harmless. The restitution order was reversed and the case was remanded for further proceedings. 2020 COA 40. No. 17CA1138. People v. Cattaneo. Constitutional Law—Fourth Amendment—Search and Seizure—Sentence—Drug Surcharge—Double Jeopardy. Defendant was detained at a store on suspicion of shoplifting. Agent Albrets arrived at the scene and arrested defendant. He asked defendant for identification (ID) so defendant could be released on a summons. Defendant told Agent Albrets that his ID was in his car in the store’s parking lot and gave him permission to use his key fob to enter his car and retrieve

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his ID. Agent Albrets unlocked the car, retrieved the ID, and closed and locked the car. Then, suspecting the car was stolen, he called for backup. He then returned to join defendant inside the store. Agent Radke arrived and attempted to find the car’s VIN by looking at the dashboard through the windows. The VIN was obscured by a crumpled paper. Meanwhile, Agent Albrets released defendant but followed him to the car, where Agent Radke was waiting. As Agent Radke approached, defendant quickly walked to the passenger side of the car, removed a backpack, and locked the car. Agent Radke separated defendant from his backpack and asked him to open the car door so he could see the VIN on the doorjamb. Defendant unlocked the car, Agent Radke obtained the VIN, and dispatch confirmed that the vehicle had been reported stolen. The agents arrested defendant

P P A

on suspicion of motor vehicle theft and then searched his backpack, where they found a large number of OxyContin and Oxycodone pills. Before trial, defendant moved to suppress the pills as the fruit of an unlawful search. The trial court denied the motion. A jury found defendant guilty of possession with intent to manufacture or distribute a controlled substance, possession of a controlled substance, and theft of less than $50. The trial court sentenced him to a term of imprisonment and parole, and the mittimus appears to require him to pay a drug surcharge. On appeal, defendant argued that the seizure of the car and his person in the parking lot was illegal because it was not supported by probable cause and, therefore, the backpack’s contents were the ultimate fruit of an illegal seizure. The parties did not dispute that the agents had reasonable suspicion to believe the car was stolen. Here, the limited intrusion into

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the car to view the VIN and the earlier seizure of defendant and the vehicle were within the permissible scope of an investigatory stop justified by reasonable suspicion that the car was stolen. Further, defendant did not have a reasonable expectation of privacy in the doorjamb VIN. Thus, the seizure of the car did not require probable cause, and the seizure of defendant did not escalate to an arrest. Accordingly, the trial court properly denied the motion to suppress. Defendant next contended that the trial court impermissibly increased his sentence when it imposed a drug surcharge on the mittimus without first announcing it in open court at the sentencing hearing. A trial court has the authority to reduce or eliminate the drug surcharge only to the extent the offender is unable to pay it. Because defendant’s original sentence announced in open court omitted the surcharge without a finding that he was unable to pay it, the sentence was illegal. Therefore, the sentence could be corrected without violating defendant’s rights against double jeopardy. The judgment was affirmed. The case was remanded to the trial court to provide defendant the opportunity to prove his inability to pay the drug surcharge. March 19, 2020

2020 COA 41. No. 16CA1830. People v. Lopez. Sexually Violent Predator—Developmental Disability—Factual Findings. Defendant pleaded guilty to two counts of attempted sexual assault on a child in exchange for the dismissal of five other sex assault charges, a stipulated sentence of six years in prison, and six years of sex offender intensive supervision probation. He was required to undergo a sex offense specific evaluation (SOSE) to determine his treatment needs and likelihood to reoffend. A licensed psychologist evaluated defendant and reported his findings to the court. The trial court determined defendant was a sexually violent predator (SVP) as defined in CRS § 18-3-414.5. On appeal, defendant argued that the trial court violated the SVP statute and his due process rights by not making specific factual


findings regarding its determination that he was an SVP. To be designated an SVP, an offender must be over 18 when the offense was committed; (2) be convicted of one of an enumerated class of sexual offenses; (3) have perpetrated the offense upon a victim who was a stranger, or one with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization; and (4) be likely to commit a similar sexual offense based on a risk assessment screening. An offender who meets the first two prongs must be evaluated by a trained professional to determine if he or she is an SVP. Based on the results of the assessment, the trial court must make specific findings of fact and enter an order on whether the defendant is an SVP. Here, the history of defendant’s residency and whether defendant promoted a relationship with the victim were disputed, and the evaluator’s report had internal inconsistencies, so factual findings on these issues were a necessary component of defendant’s SVP designation. But the trial court did not make specific findings of fact on the record before designating defendant an SVP. Therefore, defendant’s due process and statutory rights were violated. Defendant also contended that his SOSE did not follow the standards promulgated by the Sex Offender Management Board (SOMB) for providers of sex offense-specific evaluations. A trial court is required to make specific findings of fact of fact that comply with the SOMB standards. Providers who evaluate offenders with developmental disabilities must have specific qualifications and demonstrate competency to work with this population. Defendant’s evaluator was not specifically qualified to work with developmentally disabled offenders and did not definitively state whether defendant has a developmental disability. Further, both sides acknowledged that defendant “potentially” had a developmental disability, and the trial court failed to make required findings as to defendant’s developmental disability before determining that he qualified as an SVP. Accordingly, the assessment did not comply with the governing statutory and administrative standards, and the trial court could not rely on it in designating defendant as an SVP.

The order was vacated and the case was remanded, with instructions, for a hearing to determine whether defendant is developmentally disabled. 2020 COA 42. No. 17CA1536. People v. Vialpando. Constitutional Law—Right to Jury Trial—Prosecutorial Misconduct. Two police officers were sitting in their police vehicle in a motel parking lot. One observed a car drive around the corner of the motel, reverse over a curb, and turn around to exit the motel parking lot. As the officers pursued the car, they learned it was stolen. The officer who was driving activated his emergency lights to make a traffic stop, but the stolen car’s speed increased. Police did not pursue the car because of the police pursuit policy. Shortly after deactivating his lights, the officer heard a loud bang and saw that the stolen car had crashed. Several witnesses told the officers that they saw a male and female flee from the car following the crash. Police found a purse in the stolen car that contained several items belonging to defendant, including an identification card and credit card. Later, two officers went to the home of one of the witnesses for an out-of-court identification, and the witness identified defendant’s photo from a series of photographs. Defendant was charged with vehicular assault, vehicular eluding, aggravated motor vehicle theft in the first degree, and driving under restraint. At trial, defendant testified that she had gone to the police station the day before the car chase to report that she was robbed at gunpoint and several personal items had been stolen. A police officer’s testimony supported defendant’s account. A jury convicted defendant as charged. On appeal, defendant argued that there was insufficient evidence to support her convictions. However, the evidence in this case was sufficient for the jury to conclude that defendant was driving the stolen car and did not have authority to do so. Defendant also argued that the prosecution’s comments on her flight from the crashed car and police constituted prosecutorial misconduct because they were a direct and critical comment on her right to a jury trial. Here, the

prosecutor’s comments that defendant’s “flight continues to this moment” and her “flight has continued up to this point essentially” told the jury that defendant was continuing to run from responsibility by insisting on a jury trial. While it was permissible for the prosecutor to argue that fleeing the crime scene was evidence of guilt, when defendant was sitting in the courtroom she was not fleeing from anything. The prosecutor thus criticized defendant for exercising her constitutional right to a jury trial and unfairly prejudiced her in the jury’s eyes. Further, this error so undermined the fundamental fairness of the trial so as to cast serious doubt on the reliability of the conviction. Defendant further contended that the aggregate impact of numerous errors deprived her of a fair trial. In addition to his flight comments, the prosecutor’s illustration of reasonable doubt, statements of personal belief, questions about the veracity of another witness, and mischaracterization of the evidence were improper. Further, allowing the lead investigating officer to opine that defendant was guilty by testifying that she was the “primary suspect” was error. Cumulatively, these errors deprived defendant of a fair trial. Defendant also argued that the trial court reversibly erred by denying her motion to suppress the out-of-court photo identification. The trial court’s findings on reliability are supported by the record, so the identification was properly admitted. The judgment of conviction was reversed and the case was remanded for a new trial. 2020 COA 43. No. 18CA2281. Namaste Judgment Enforcement, LLC v. King. Substituted Service—CRCP 4(f )—Default Judgment. King allegedly was the sole owner of Crown Investment Group, LLC and Crown Development Group (collectively, defendants). Plaintiffs invested $35,000 in Crown Investment. King, in his capacity as managing member of Crown Investment, executed a promissory note for the amount plus interest and then transferred the money to Crown Development without plaintiffs’ knowledge. King later failed to pay off the note. Because King had left the country, plaintiffs were unable to personally serve defendants M AY 2 0 2 0

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under CRCP 4(e), so they moved for substituted service under CRCP 4(f ). Plaintiffs’ motion proposed to send summonses and complaints to King’s personal address, his second known address, and his last known work addresses; King’s mother at her Illinois mailing address; and King’s brother-in-law at his Colorado address. Defendants did not file an answer or other responsive pleading by the deadline, and the court granted plaintiffs’ motion for default judgment. King later returned to the United States and learned of the default judgment when Namaste Judgment Enforcement, LLC, a collection agency to which plaintiffs had assigned their judgment, served a writ of garnishment on his bank. Defendants then moved to set aside the default judgment under CRCP 60(b)(3) as void for lack of proper service. The court denied the motion. On appeal, defendants contended that the court erred by finding sufficient service of process and denying their motion to set aside the judgment because plaintiffs’ counsel failed to personally serve the substituted persons in accordance with Rule 4(f )(1). A judgment entered against a defendant without valid service of process violates due process of law and is void. First-class mailing to a substituted person under Rule 4(f)(1) does not effect valid service of process under Rule 4(f )(2); hand delivery to the substituted person is required. At the hearing on the motion to vacate the default judgment, plaintiffs’ counsel admitted that none of the documents was sent by certified mail or another tracking method that could confirm receipt by the substituted person. Accordingly, the default judgment is void as a matter of law. The order was reversed, the default judgment was vacated, and the case was remanded for further proceedings. 2020 COA 44. No. 19CA0255. People v. Weeks. Restitution—Good Cause or Extenuating Circumstances for Extending Deadlines. A jury found defendant guilty of two counts of aggravated robbery and two counts of menacing based on his robbery of a gas station/ convenience store. At the sentencing hearing the prosecutor requested that restitution remain open. The trial court granted the motion for a

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period of 91 days. Nine days later the prosecution filed a motion requesting $524.19 in “interim restitution.” Defendant made a timely objection to the amount. Neither party requested a hearing. Seven-and-a-half months later, defendant filed a motion for a status conference based on pending motions for restitution and return of property. The court later held a hearing on the pending motions, implicitly found good cause for the extended time-frame, and 11 months after sentencing, issued an order granting the restitution requested. On appeal, defendant argued that the court erred by ordering restitution more than 11 months after sentencing without good cause for delaying its ruling. CRS § 18-1.3-603(1) (b) requires a district court to order a specific amount of restitution within 91 days of the conviction order, unless good cause exists to extend that deadline. The mere fact that the prosecution sought additional time to request restitution does not automatically amount to good cause or extenuating circumstances. Here, the trial court’s ruling did not explain, and the record does not show, what good cause, if any, existed for that inordinate delay. The restitution order was vacated. 2020 COA 45. No. 19CA0991. People in Interest of S.A.G. Dependency and Neglect—Uniform Child-Custody Jurisdiction and Enforcement Act. The child was born in 2014 and lived with his parents in Arkansas until the family went Colorado in 2017. About three weeks after the family arrived in Colorado, the Denver Department of Human Services (Department) obtained custody of the child and initiated a dependency and neglect case. Throughout the proceedings the parents clearly stated that they were in Colorado temporarily, that Arkansas was there home, and that they wanted to return there. The juvenile court’s initial placement order noted that an emergency justified temporary removal, but it did not state that the court was exercising temporary emergency jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA). The juvenile court’s further orders and treatment plans for the parents did not address UCCJEA jurisdiction or contain any finding of an ongoing emergency.

During the proceedings, the parents returned to Arkansas without the child. They appeared by phone for all proceedings after moving back to Arkansas. The juvenile court ultimately terminated the parents’ rights, again without mentioning the UCCJEA. On appeal, father contested the juvenile court’s jurisdiction to terminate his parental rights under the UCCJEA’s temporary emergency jurisdiction. He asserted that the court needed to establish a basis for ongoing jurisdiction under CRS § 14-13-201 and had to communicate with a court in Arkansas and have that court decline to exercise its jurisdiction. Under the UCCJEA, when a child-custody proceeding is commenced in Colorado but Colorado is not the child’s home state, the court must communicate with a court in the child’s home state, even if no child-custody proceeding was ever commenced or is pending there. Here, the juvenile court failed to communicate with any court in Arkansas, and the record contains no basis on which to infer that the court found Colorado to be the child’s home state. The juvenile court failed to make any meaningful jurisdictional findings for its termination judgment. Accordingly, the juvenile court lacked jurisdiction to terminate parental rights under the UCCJEA’s temporary emergency jurisdiction provision. The judgment was vacated and the matter was remanded, with instructions, for further proceedings. March 26, 2020

2020 COA 46. No. 16CA1319. People v. Pettigrew. Constitutional Law—Jury Instructions—Voir Dire—Burden of Proof—Fourth Amendment—Searches and Seizures—Warrant— Independent Source Exception—Exclusionary Rule. Defendant began a relationship with the 17-year-old victim. The victim’s mother contacted police after seeing sexually explicit photographs on the victim’s phone. After obtaining information from the victim, her cell phone, and her mother, the police arrested defendant inside his house without a warrant and seized his cell phone. The police transported defendant to the police station and interrogated him there.


During the interrogation, defendant showed the police text messages on his cell phone. Later that day, the police released defendant due to concerns that the warrantless arrest might have been unlawful. Although the police released defendant, they kept his phone. Defendant was rearrested the next day, and about a week later, a search warrant was issued for his cell phone. Defendant was charged with soliciting for child prostitution, pandering of a child, sexual exploitation of a child, attempted inducement of child prostitution, and tampering with a witness or victim. He moved to suppress all of the information obtained from his cell phone as the fruit of an unlawful arrest. The trial court concluded that exigent circumstances justified defendant’s arrest and denied the motion. A jury convicted defendant of pandering of a child and tampering with a witness or victim. On appeal, defendant argued that five statements the trial court made to the jury during voir dire constituted reversible error. However, the court properly instructed the jury on the burden of proof, and accurately informed the jury to apply the law given to them and not base their decisions on what they learned in television shows. Therefore, none of the trial court’s statements required reversal. Defendant also contended that the trial court on remand erred when it found that the independent source exception to the exclusionary rule authorized admission of the cell phone evidence. Here, before the police contacted or arrested defendant, they knew his cell phone likely contained evidence of criminal conduct because a detective had examined the victim’s phone, which contained text messages between her and defendant. Thus, independent of information obtained from the unlawful arrest, there was probable cause to believe that defendant had engaged in criminal conduct. Further, no authority supports defendant’s contention that a warrant to search a cell phone must describe the phone’s make, model, and color to meet the Fourth Amendment’s particularity requirement. Even if the phone’s physical description was redacted from the search warrant, it sufficiently described a cell phone belonging to defendant that was registered to one specific phone number. Therefore, the evidence seized from

defendant’s phone was admissible at trial under the independent source exception. The judgment of conviction was affirmed. 2020 COA 47. No. 17CA1060. People v. Wardell Jr. Criminal Procedure—Right to Appear—Evidentiary Hearing—Postconviction Remedies—Ineffective Assistance of Counsel. In 1994, defendant pleaded guilty to one count of fraud by check and was sentenced to 18 months in prison. Over the years, defendant filed several motions for postconviction relief. As relevant to this appeal, most recently, on remand, the postconviction court denied defendant’s request for issuance of a writ to bring him from federal prison in South Carolina to the hearing in Colorado. The postconviction court then held an evidentiary hearing and allowed defendant to present postconviction claims from this case and another, because defendant’s

motions relied on the same or similar factual arguments—that defendant was coerced into pleading guilty in this case and thus his plea was not voluntary. Defendant appeared and testified telephonically and was represented in person by counsel. In separate orders, the postconviction court denied all of defendant’s postconviction claims in both cases. On appeal, defendant contended that the postconviction court erred by denying his request to appear in person at the evidentiary hearing. However, a defendant has neither a constitutional right nor a right by rule to be present in person at a Crim. P. 35(c) evidentiary hearing. Rather, whether to grant a defendant’s request to be present at a postconviction hearing is within the postconviction court’s discretion. Here, defendant was in federal prison out of state and agreed to testify telephonically. Further, the postconviction court attempted to secure

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defendant’s testimony via videoconference, which proved impossible due to technological deficiencies. Accordingly, the postconviction court did not abuse its discretion. Defendant next argued that the postconviction court erred by denying his ineffective assistance of counsel claim. The postconviction court’s findings of fact and conclusions of law supported its ruling that defendant failed to present evidence that would justify relief. Defendant also argued that the postconviction court erred by rejecting his claim that his plea was involuntary. The record supports the postconviction court’s findings that defendant’s guilty plea was not coerced or involuntary, and his testimony at the evidentiary hearing was factually refuted. Therefore, the postconviction court did not err. The order was affirmed. 2020 COA 48. No. 17CA1815. People v. Hunsaker Jr. Criminal Procedure—Postconviction Remedies—Correction of Illegal Sentence— Timeliness—Ineffective Assistance of Counsel. In 2006, a jury found defendant guilty of sexual assault on a child and sexual assault on a child as part of a pattern of abuse (pattern count). The court sentenced him to concurrent prison terms of eight years to life for sexual assault on a child and 16 years to life on the pattern count. In 2011, defendant filed a Crim. P. 35(a) motion, arguing that the court had illegally imposed sentences applicable to extraordinary risk crimes despite the fact that neither of his convictions presented an extraordinary risk of harm. The district court amended the mittimus to reflect a sentence of six years to life on the sexual assault on a child count and 12 years to life on the pattern count. The People appealed the court’s decision to resentence defendant on the pattern count. On remand, the court amended the mittimus to reinstate the sentence of 16 years to life on the pattern count. Defendant filed another Crim. P. 35(c) motion in 2016, which the district court denied without a hearing. On appeal, defendant argued that the district court erred by denying his motion without a hearing. Generally, a defendant must file a Crim. P. 35(c) motion within three years after

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the date of his or her felony conviction. Where, as here, there was a direct appeal, a conviction is final when the appellate process has been exhausted, which was January 31, 2011, the date the mandate issued in defendant’s first appeal. Thus, the limitations period expired on January 31, 2014. Nevertheless, defendant argued that the motion was timely filed because the People’s appeal tolled the filing deadline as to any issue involving his convictions or sentence. However, the renewal of the three-year deadline is limited to claims that relate to how the illegality in the sentence potentially affected a defendant’s original convictions. Here, defendant’s postconviction motion did not link the illegality of the sentence on the sexual assault on a child count to his collateral attack on the judgment of conviction. Only his claim that his counsel rendered ineffective assistance by not objecting to imposition of an extraordinary risk sentence arguably relates to the illegality in his original sentence for sexual assault on a child. But while trial counsel’s failure to object, if true, would have constituted deficient performance, defendant has not shown how the outcome of the sentencing hearing would have been different with regard to the sentence on the pattern count. Thus, defendant’s claim regarding the presumptive range on the pattern count is time barred because the original sentence on that count was legal, and the court properly denied the claim without a hearing. The order was affirmed. 2020 COA 49. No. 18CA1128. Carbajal v. Wells Fargo Bank. Colo. R. Civ P. 60(b)—Relief from Judgment—Extrinsic Fraud—Discovery Violations—Injunction. In 2011, a jury convicted Carbajal of multiple offenses related to stalking his ex-girlfriend, a Wells Fargo bank teller. The judgment of conviction was affirmed on appeal. Shortly thereafter, Carbajal sued Wells Fargo Bank, the teller, and two other employees, asserting claims for invasion of privacy, breach of fiduciary duty, and breach of contract. The district court granted summary judgment for the defendants. Contemporaneously with their motion to dismiss, some defendants moved for a permanent injunction

enjoining Carbajal from filing pro se actions against certain lawyers without prior court approval. The district court granted the motion, but without making any findings or specifying the terms of the injunction. Carbajal appealed, and a Court of Appeals division affirmed. In 2017, Carbajal filed the current lawsuit, alleging discovery misconduct during the first civil lawsuit by Wells Fargo, the two previously named employees, the bank’s lawyers, and the law firm and lawyer who represented the bank teller. Carbajal’s complaint alleged that defendants’ fraud during the discovery process deprived him of an opportunity to pursue his claims in the first civil lawsuit and resulted in entry of an erroneous judgment. Accordingly, the district court construed his complaint as a motion under Colo. R. Civ P. 60(b)(2) to set aside the summary judgment. Because the complaint was filed more than 182 days after the court entered summary judgment, the district court concluded that Carbajal’s action was time barred, and it granted defendants’ motions to dismiss on all grounds. The court also granted defendants’ request for an injunction prohibiting Carbajal from filing further actions against defendants without prior court approval. On appeal, Carbajal contended that his complaint is an independent equitable action to set aside a judgment and therefore not subject to the time limitation in Rule 60(b)(2). Rule 60(b) contains a savings clause that, in addition to setting aside a judgment, allows the district court to consider an independent action to relieve a party from a judgment, order, or proceeding; or set aside a judgment for fraud upon the court. Neither of these additional grounds is subject to a time limit. Colorado law requires a party asserting an independent action to prove extrinsic fraud. As a matter of law, mere discovery violations do not constitute extrinsic fraud for Rule 60(b) purposes, and fraud between the parties does not constitute fraud on the court. Further, relief pursuant to an independent action is appropriate only if the district court has reason to believe that vacating the judgment will not be an empty exercise. Here, even if Carbajal could establish extrinsic fraud, he cannot show that such fraud prevented him from pursuing a meritorious claim in the underlying action.


Therefore, the district court properly dismissed the complaint with prejudice as time barred. Carbajal also contended that the injunction infringes his right to access the courts and is designed to punish him. When a party has abused the judicial process by filing duplicitous and groundless complaints and appeals, and other penalties have proven ineffective, an injunction is the proper remedy. Given Carbajal’s significant litigation history, it was not manifestly arbitrary, unreasonable, or unfair for the court to impose conditions on his right to continue to sue the lawyers involved in the first case. However, because the court’s order did not set forth the reasons for issuing the injunction and describe in reasonable detail the act or acts sought to be restrained, it does not comply with Rule 65(d). The judgment was affirmed, the order granting the motion for a permanent injunction was vacated, and the case was remanded for further proceedings. 2020 COA 50. No. 18CA1551. Board of County Commissioners of the County of La Plata v. Colorado Department of Public Health and Environment. Government—Colorado Governmental Immunity Act—Solid Waste Disposal Sites and Facilities Act—Administrative Law—Torts—State Administrative Procedures Act. La Plata County (the County) owns a solid waste landfill that has been closed since 1994. Since 2004, groundwater monitoring tests have shown elevated concentrations of vinyl chloride at the landfill. The Colorado Department of Public Health and Environment (the Department) and the County collaborated to monitor and remediate the contaminated groundwater until 2016, when the Department issued a compliance order to the County because it refused to enter into an administrative order to address the groundwater contamination. Ultimately, the district court determined that the Colorado Governmental Immunity Act (CGIA) barred enforcement of the compliance order against the County because the Department suffered an injury and the compliance order was essentially a public nuisance claim that could lie in tort. On appeal, the Department argued that the

district court erred by holding that the CGIA bars the Department’s enforcement of the compliance order. The Solid Waste Disposal Sites and Facilities Act (SWA) regulates the management and disposal of solid waste throughout Colorado and grants the Department the power to implement and administer the solid waste program under CRS § 30-20-101.5(1), including the power to issue compliance orders. Solid waste facility operators must comply with SWA. A statutorily authorized public enforcement action to abate hazardous environmental conditions that does not seek compensation for personal injuries or specific property damage is not a tort claim or a claim that could lie in tort. Therefore, the CGIA does not prevent the Department from bringing an enforcement action against a county under the SWA. Accordingly, the district court erred by holding that the CGIA bars the Department’s enforcement of the compliance order.

The County argued on cross-appeal that because the district court held the CGIA defense qualified for interlocutory appeal, the SWA defense should have qualified as well. The cross-appeal is moot given the holding that the SWA allows the Department to bring enforcement actions against counties. The judgment was reversed and the cross-appeal was dismissed in part. 2020 COA 51. No. 18CA2084. Better Baked, LLC v. GJG Property, LLC. Spurious Liens and Documents—Lis Pendens. Better Baked, LLC (tenant) leased commercial space in a warehouse owned by GJG Property, LLC (landlord). The lease gave tenant a right of first refusal (ROFR) for the five-year lease term. The tenant brought an action against landlord disputing some charges under the lease, and the case was settled and dismissed without

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prejudice. Tenant then procured a buyer for the property, and during the executory period of the contract, tenant and landlord amended the lease to waive and terminate the ROFR. Another tenant, Peak Holdings Group, LLC (Peak) then entered into a different purchase agreement with landlord for tenant’s property. Peak assigned its rights to Dorenka LLC. Landlord asserted that tenant’s ROFR waiver applied to the pending Dorenka purchase, which tenant disputed. Tenant’s counsel recorded a lis pendens against the property that referenced the dismissed action. Then tenant commenced a new action against landlord and recorded a second lis pendens. The new action sought damages and declaratory relief that tenant was entitled to exercise its ROFR. Landlord, Peak, and Dorenka (collectively, petitioners) brought an action against tenant to remove both lis pendens as spurious documents under CRS §§ 38-35-201 to -204. The district court found that both lis pendens were groundless and therefore spurious and invalid, and it released both liens. The district court awarded attorney fees against tenant but did not allocate petitioners’ attorney fees between the first and second lis pendens. On appeal, tenant argued that the district court evaluated its second lis pendens under the wrong standard. Tenant argued that rather than reaching the merits of landlord’s waiver defense, the district court should have asked only whether, based on the allegations in the complaint concerning the ROFR, tenant had put forward a “rational argument based on the evidence or the law” that the second action could affect title to real property. A lis pendens may be recorded after the filing of any pleading when the relief sought affects title to real property. The recording is proper if the claimant shows that the claim “relates to a right of possession, use, or enjoyment of real property.” A notice of lis pendens can be a spurious document, but whether a lis pendens is spurious does not turn on an assessment of the merits of the claim in connection with which it was filed. Rather, the assessment turns solely on whether the lis pendens was filed in connection with a claim that affects title to real property. Thus, a lis pendens is not groundless merely because

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the underlying claim may fail. Here, tenant’s claim was based on a right of first refusal, the enforcement of which can affect title to real property. Tenant concedes that when it recorded the first lis pendens, the first action had been dismissed and the dismissal was not appealed. Accordingly, the first lis pendens was groundless. But as to the second lis pendens, the court should have focused only on whether it was filed in connection with an existing lawsuit in which the relief sought affects real property title. The second lis pendens was filed in connection with such a lawsuit, so it was not groundless and consequently not spurious. However, given that the court erred in finding the second lis pendens groundless, the attorney fees award was improper. The order was affirmed as to the first lis pendens and reversed as to the second lis pendens. The order awarding attorney fees was reversed, and the case was remanded for further proceedings. 2020 COA 52. No. 19CA0059. HCA-HealthONE LLC v. Colorado Department of Labor and Employment. Colorado Minimum Wage Order—Fair Labor Standards Act—Administrative Procedure Act—Compensation During Meal Periods. Witt worked 12-hour shifts in North Suburban Medical Center (the Hospital) from 2013 to 2016 as a laboratory medical technologist. The lab was staffed seven days a week around the clock. During her shifts, Witt was relied on “for everything regarding the laboratory.” In accordance with the Hospital’s policy, Witt took 30-minute meal periods. She was “on call” during her meal periods and could not leave the Hospital to pursue personal activities. To receive payment for missed or interrupted meals, employees were instructed to clock in, notify their manager, and/or submit a timekeeping adjustment form. Witt used the timekeeping system on occasion to obtain compensation for interrupted meal periods. None of those occasions is in dispute here. Witt filed a wage complaint with the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the Division) seeking payment for all meal periods for which

she had not been compensated because she was on call during their entirety. After filing her complaint, the Hospital amended its policy to allow Witt to only be interrupted for “life critical” emergencies. Her wage claim did not cover the time after the policy was amended. In response to the complaint, the Hospital paid Witt for all uncompensated meal periods in that timeframe. The Division issued a Notice of Determination and Enclosed Citation (Citation) determining that the Hospital had paid all wages owed by the time of the Citation. But because Witt had not been paid the wages owed within 14 days of the written demand, the Hospital was required to pay a statutory penalty. The compliance investigator calculated the penalty to be $4,210, but exercised the Division’s discretion to reduce it by 50% because the Hospital had paid the wages due before the Citation. The Hospital appealed the Citation and a hearing officer agreed that Witt’s meal periods were compensable under Colorado Minimum Wage Order Number 35 (MWO) and the compliance investigator had engaged in adjudication, not rulemaking, when resolving the claim. The district court affirmed the hearing officer’s decision. On appeal, the Hospital argued that the MWO is ambiguous and therefore the claim should have been reviewed under a Fair Labor Standards Act (FLSA) regulation. The MWO is not ambiguous, and its plain language provides that a meal period is compensable unless it is both “uninterrupted” and “duty free.” Thus, Witt’s meal periods were compensable, and it is neither necessary nor appropriate to rely on federal law. However, with respect to one timeframe, the Division’s decision did not adequately address whether the meal periods were compensable. The Hospital deserves to know, via an analysis of the 2016 facts, whether those meal periods were compensable under the MWO because this knowledge could impact the Hospital’s current and future policies on meal periods. The Hospital also argued that the Division’s allegedly inconsistent interpretations of the MWO rendered its decision arbitrary and capricious. However, the Division’s view of the MWO did not change significantly through the


course of the case. Accordingly, the Division did not arbitrarily and capriciously enforce the MWO. The Hospital further contended that the Division engaged in improper rulemaking by applying an unwritten rule through adjudication in violation of the Administrative Procedure Act. Here, the Division applied the MWO’s literal language, a duly promulgated and written rule, to determine that the Hospital had violated this rule with respect to Witt and the specific meal periods at issue. Therefore, the Division engaged in adjudication, not rulemaking. The portion of the district court’s order affirming the decision as to Witt’s 2016 meal periods was reversed, and the case was remanded with directions to return it to the Division for further proceedings consistent with this opinion. In all other respects, the court’s order was affirmed. 2020 COA 53. No. 19CA298. Martinez v. LHM Corp. Attorney Fees—Colorado Consumer Protection Act—Costs or Damages—Finality of Judgment. Martinez went to LHM Corporation (LHM), a car dealership, and traded in his 2012 vehicle for a 2016 vehicle. Martinez made a down payment, and with LHM’s assistance, he applied for financing with Ally Financial (Ally). Ally conditionally approved Martinez for a loan, and LHM assured him he’d been approved. When Martinez left the dealership with the 2016 vehicle, he believed he had purchased it. Later that day, LHM received a notice of adverse credit action stating that Ally had not approved Martinez’s financing. Ally did not send the notice to Martinez, and for two weeks, LHM negotiated unsuccessfully with Ally to obtain financing for Martinez. Meanwhile, LHM sold the 2012 vehicle and did not apply any of those funds toward Martinez’s existing loan with Ally for that vehicle. Martinez returned to the dealership a month later because he couldn’t make payments for the 2016 vehicle on Ally’s website. LHM’s financial manager told him holiday turnover had resulted in delays. LHM continued trying to get the loan approved but was unsuccessful. Martinez then demanded that LHM cancel the

sale and return the 2012 vehicle to him. The financial manager told him they still had the 2012 vehicle even though they’d already sold it. Martinez sued, alleging LHM violated the Colorado Consumer Protection Act (CCPA) by misrepresenting that Ally had agreed to finance his purchase of the 2016 vehicle and by selling the 2012 vehicle without approved financing. LHM later offered financing from another lender to Martinez, but he rejected the offer. LHM paid Ally the delinquent balance on the loan for the 2012 vehicle and took actions to notify credit agencies to remove the late payments from Martinez’s credit report. LHM refunded Martinez’s down payment, and Martinez returned the 2016 vehicle in exchange for the 2012 vehicle, which LHM had reacquired. In March 2018, the district court ruled that LHM had violated the CCPA and awarded Martinez $9,900 in damages as well as attorney fees.

In December 2018 the court determined the attorney fees to be $51,232.50. LHM appealed. On appeal, Martinez argued that LHM’s appeal is untimely and should be dismissed because attorney fees are costs, not damages, under the CCPA; therefore, the district court’s March order was final for purposes of appeal, and because LHM didn’t file the appeal until December, the appeal is untimely. The CCPA essentially shifts fees and costs to the violator. Therefore, attorney fees under the CCPA are more akin to costs than to damages, and the district court’s March order was a final, appealable order. Because LHM did not file this appeal until February 2019, its appeal of that judgment was untimely. While LHM’s appeal was timely as to the December 2018 order, LHM did not substantively challenge that order. The appeal was dismissed in part. The December 2018 order was affirmed.

Receivers Bankruptcy Trustees National Receivers, Ltd.

Plaza of the Rockies Box 76651 Colorado Springs, Colorado 80970

Tel. 719-470-2181 www.NationalReceivers.net Information@NationalReceivers.net

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2020 COA 54. No. 19CA0318. People v. Flynn. Harboring a Minor—Element of Release. Defendant’s teenage son and his teenage girlfriend, T.B., ran away from home. At the time, T.B had an outstanding arrest warrant for unrelated conduct. They left in T.B.’s mother’s van and took three family dogs with them. They were reported as runaways. T.B.’s mother suspected the teens were in Craig, Colorado. She went there and retrieved the van and the dogs but not the teens. Defendant then drove to Craig and convinced the teens to return to Greeley with her. During a stop, defendant called a Weld County Sheriff’s deputy to devise a plan for taking the teens into custody when she got to Greeley. The deputy told her to call the Denver police to arrest the teens if they refused to return to Greeley. An hour later, defendant notified the deputy that she still had not left for Greeley and had not called the Denver police. The deputy repeated his instructions to her and then left a voicemail saying that if she did not have the teens in Greeley by 11 p.m., he would issue a warrant for her arrest. Thereafter, defendant did not answer the deputy’s phone calls. She returned to Greeley with the teens the next evening and was arrested. Defendant was convicted of harboring T.B. and obstructing a peace officer. On appeal, defendant contended that under the plain language of CRS § 18-6-601(1)(a)(I) she can only be guilty of harboring a minor if she intentionally failed to release a minor to the specific law enforcement officer who requested the minor’s release, in this case the Weld County Sheriff ’s deputy, and there is insufficient evidence on this point. A person commits the offense of harboring a minor if he or she knowingly provides shelter to a minor without the consent of the parent, guardian, or custodian of the minor and if the person intentionally fails to release the minor to a law enforcement officer after being requested to do so by the officer. Here, there was no evidence that defendant intentionally failed to release T.B to the Weld County Sheriff’s deputy. The judgment for obstructing a police officer was affirmed and the judgment for harboring a minor was vacated.

2020 COA 55. No. 19CA0446. People v. Vogel. Civil Forfeiture—Setting Aside a Default Order—Colorado Contraband Forfeiture Act—Due Process. Vogel rented space on property in unincorporated Boulder County to store five tractor trailers. A confidential source tipped off a Boulder County deputy sheriff that marijuana was being illegally cultivated in the five tractor trailers. After the deputy sheriff corroborated the source’s information, a detective with the Boulder County Drug Task Force obtained a search warrant for the property. Officers found the five tractor trailers housing a marijuana grow operation; a generator on a flatbed trailer (trailer); and approximately 163 marijuana plants. Officers seized all the items and held them as evidence in the criminal proceeding against Vogel. This appeal concerned the civil forfeiture of the trailer. The Boulder County district attorney filed a petition in forfeiture to perfect title in the trailer, alleging it was contraband. The district court found probable cause to believe the trailer was contraband and issued a citation to show cause. Vogel was served with the citation in a Virginia jail on January 3, 2019 and the hearing was set for January 8. He did not appear or respond. Eight days after the hearing, the district court received two unsworn motions to quash from Vogel that had been mailed on January 7 from the Virginia jail. The district court summarily denied them and then entered a default order of forfeiture against Vogel. Vogel filed motions for an extension of time to appear and properly address the situation, which were summarily denied, as were other motions he filed. On appeal, Vogel challenged the default order of forfeiture. A claimant seeking to prevent the State from obtaining title to seized property pursuant to a forfeiture petition must file a response to the prosecuting attorney’s petition that satisfies the four requirements enumerated in CRS § 16-13-505(2)(d). The Court of Appeals considered Vogel’s motions to quash as a response to the district attorney’s petition. Construing the response liberally, the motions lacked the required witness list and verified ownership statement. Therefore, the response did not comply with the statutory requirements

for responsive pleadings in civil forfeiture cases and was properly denied. Further, because Vogel was properly served and did not either appear or file a proper response, the district court did not err by entering the default order forfeiting Vogel’s claimed interest in the trailer and not setting it aside. Finally, the denial to set aside the default order did not violate Vogel’s due process rights because he received notice of the proceeding. Vogel further argued that the search that resulted in the seizure of his trailer violated the Fourth and Sixth Amendments because there was not proof of a valid warrant and the search was not proven to be reasonable. These arguments lack merit on their face. The order of forfeiture was affirmed.

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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FROM THE COURTS | COLORADO SUPREME COURT

Summaries of Published Opinions March 2, 2020

2020 CO 16. No. 19SA226. People v. Ashford. Fourth Amendment—Scope of Investigatory Stops. After a police officer felt a pill bottle in defendant’s jacket during the course of an investigatory stop, the officer asked defendant, “I know this is a pill bottle, what is it?” In response, defendant removed a pill bottle from his pocket and showed it to the officer, who could see that it contained baggies of illegal drugs. Here, the Supreme Court considered whether that question exceeded the scope of the investigatory stop. Because the Court concluded that the officer’s question did not measurably extend defendant’s stop, it held that the question about the pill bottle did not exceed the scope of the investigatory stop. Thus, it reversed the district court’s suppression order. 2020 CO 17. No. 19SA99. Gale v. City & County of Denver. Claim Preclusion—Section 1983 Claims—CRCP 106(a)(4) Claims. In this case, the Supreme Court accepted jurisdiction to consider the following question certified to the Court by the Tenth Circuit Court of Appeals: Has the Supreme Court crafted an exception to the doctrine of res judicata such that a prior action under CRCP 106(a)(4) cannot preclude 42 USC § 1983 claims brought in federal court, even though such claims could have been brought in the prior state action? Plaintiff was terminated from his job as a deputy sheriff with the Denver Sheriff’s Department. He sought review of his termination before the Denver Career Service Board (Board). After a hearing officer and the Board affirmed plaintiff’s termination, he filed a CRCP 106(a) (4) claim for judicial review in Denver District

Court, naming present defendant, among others, as defendants. In addition, plaintiff filed a separate action pursuant to 42 USC § 1983 against defendant, among others, in the US District Court for the District of Colorado. The Denver District Court ultimately affirmed the Board’s order upholding plaintiff’s termination, and defendant thereafter sought and obtained leave to amend its answer in the federal action to assert a defense of claim preclusion. Defendant then moved for summary judgment in the federal action based on this defense. The federal district court subsequently granted that motion, and plaintiff appealed. The Tenth Circuit then certified the present question to the Supreme Court, which accepted jurisdiction. Here, the Court answers “no” to the certified question, concluding that, under Colorado state law, § 1983 claims are not excepted from the claim preclusion doctrine such that a prior CRCP 106(a)(4) action cannot preclude a § 1983 claim that could have been brought in the prior state action. 2020 CO 18. No. 19SA230. People v. Vanness. Entitlement to Preliminary Hearing—Special Offender Count—Defendant “Accused” of Level 1 Drug Felony. In this original proceeding, the Supreme Court addressed whether defendant has a right to demand and receive a preliminary hearing given that: (1) he is charged with a level 4 drug felony not eligible for a preliminary hearing; (2) he is separately charged with a special offender count; and (3) he will stand convicted of a level 1 drug felony eligible for a preliminary hearing if the People prove both counts beyond a reasonable doubt to the jury. The Court concluded that defendant is entitled to demand and to receive a preliminary hearing

because the People have accused him of a level 1 drug felony and have charged him accordingly (albeit through a combination of two separate counts). Therefore, the Court made the rule to show cause absolute. March 9, 2020

2020 CO 19. No. 19SA93. In the Matter of Betterton-Fike. Attorney Discipline—Conduct Prejudicial to the Administration of Justice. In this disciplinary proceeding, a hearing board concluded that an attorney violated Colorado Rule of Professional Conduct 8.4(d) by allegedly failing to pay a court reporter and Rule 8.4(b) by physically assaulting his wife. Based on these violations, it imposed a nine-month suspension from the practice of law. The Supreme Court considered whether the attorney engaged in conduct “prejudicial to the administration of justice” in violation of Rule 8.4(d). Because the attorney had no legal obligation to pay the court reporter, the Court concluded that he did not violate this rule. Accordingly, the Court reversed the hearing board’s judgment as to the Rule 8.4(d) violation and remanded that case to the board to reconsider its sanction in light of this decision. 2020 CO 20. No. 18SC406 People v. Cali. Amendatory Legislation—Post-Conviction Motions—Theft. In this case, the Supreme Court held that a defendant is not entitled to the benefit of a statutory amendment when the amendment took effect while the defendant’s case was pending on direct appeal but the defendant did not raise the issue of the amendatory legislation until after his or her conviction became final. Accordingly, the Court reversed the judgment of the division below. March 16, 2020

2020 CO 21. No. 18SC620. People v. Lindsey. Competency Motions—Statutory Threshold Requirements—Judge’s Discretion to Reject Inadequate Proffer. The Supreme Court concluded that CRS § 168.5-102(2)(b) includes threshold requirements. M AY 2 0 2 0

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Further, the Court concluded that, while trial courts must guard against second-guessing a competency motion that’s in writing and contains specific facts that form the basis of counsel’s “good faith doubt” about a defendant’s competency (i.e., a motion that satisfies the threshold requirements of § 16-8.5-102(2) (b)), they retain sufficient discretion to reject a competency motion that rests on counsel’s inadequate proffer. Here, the Court discerned no abuse of discretion in the district court’s rejection of defense counsel’s competency motion as inadequate. Therefore, it reversed the Court of Appeals’ judgment and remanded the case to that court with instructions to reinstate Lindsey’s judgment of conviction. 2020 CO 22. No. 19SA242. In re People v. Rosas. Insanity—Not Guilty by Reason of In-

sanity Plea—Evidence Regarding a Defendant’s Capacity to Form the Requisite Culpable Mental State—Expert Mental Condition Evidence. The Supreme Court concluded that evidence that a mental disease or defect prevented a defendant from forming the culpable mental state required by a charged offense is evidence relevant to the issue of insanity. Further, the Court concluded that a defendant—even one charged with specific intent crimes—cannot introduce evidence relevant to the insanity issue without first entering a plea of not guilty by reason of insanity (NGRI). Here, because the district court allowed Rosas to introduce evidence relevant to the insanity issue without requiring him to enter an NGRI plea, the Court made the rule to show cause absolute. On remand, the district court must afford Rosas the opportunity to plead NGRI. If he doesn’t, he may not introduce the

challenged evidence. If he does, the district court should order a sanity examination pursuant to CRS § 16-8-106.

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.

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Colorado Lawyers Committee Annual Awards Luncheon September 24, 2020 | Hyatt Regency Denver Convention Center

Honorees • Outstanding Sustained Contribution Award: Peter H. Schwartz, partner with Davis Graham & Stubbs LLP. • Special Recognition Awards: Michelle Berge, general counsel at Denver Public Schools, and Paul Hartmann, owner of Hartmannphoto, LLC. • Law Firm of the Year Nominees: Faegre Drinker Biddle & Reath LLP, Polsinelli PC, Squire Patton Boggs (US) LLP, and The Harris Law Firm PC.* • Team of the Year Nominees: » Hate Crimes National Team: Elizabeth Froehlke (Berg Hill Greenleaf & Ruscitti LLP); Beth Ann Lennon (Sherman & Howard L.L.C.); John M. McHugh (Reilly Pozner LLP); Tarek F. M. Saad (Squire Patton Boggs (US) LLP); Christine Snider (Ballard Spahr LLP); Valeria Spencer (U.S. Attorney’s Office for the District of Colorado); Phyllis V. Wan (Center for Legal Inclusiveness); and Mark D. Wilding (Fortis Law Partners LLC). » Young Lawyers Division CLE Series Steering Committee: Annika K. Adams (Denver Law student); Adrienne D. Boyd (Arnold & Porter); Jonathan M. Goldstein (Davis Graham & Stubbs LLP); Abigail Moss Hinchcliff (Bartlit Beck LLP); Caitlin McHugh (Lewis Roca Rothgerber Christie LLP); Ryan B. Thurber (Polsinelli PC); and Miles Williams (Colorado Law student). » Immigration Task Force—Probation Disclosure Subcommittee: Nancy B. Elkind (Elkind Alterman Harston PC, retired); Christine M. Hernandez (CHBA and Hernandez & Associates, P.C.); Arash Jahanian (Meyer Law Office, P.C., formerly Colorado ACLU); Christopher N. Lasch (Denver Law); Hans C. Meyer (Meyer Law Office, P.C.); Mark Silverstein (Colorado ACLU); and Steven Williams (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.). » Preparing Asylum Seekers for Success Pilot Program: This team includes 35 lawyers, mentors and translators who worked in teams through four law firms: Davis Graham & Stubbs LLP; Gibson, Dunn & Crutcher LLP; Kilpatrick Townsend & Stockton LLP; and Wilmer Cutler Pickering Hale and Dorr LLP.* *Law Firm and Team of the Year award recipients to be announced at the luncheon. And featuring keynote speech by Lee Gelernt, deputy director of the ACLU’s national Immigrants’ Rights Project and director of the Project’s Access to the Courts Program. Gelernt recently argued several groundbreaking challenges to current administration policies, including the President’s travel ban on individuals from certain Muslim-majority nations. Purchase individual tickets ($75) and sponsorships at coloradolawyerscommittee.org.

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MEMBERSHIP PERKS Full details on all membership perks are available at www.cobar.org. For more information, contact Heather Folker at hfolker@cobar.org.

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WATER LAW

Kevin Kinnear (303) 443-6800, kkinnear@pbblaw.com

John Campbell (303) 871-6461, jcampbell@law.du.edu TECHNOLOGY IN THE LAW PRACTICE

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

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

TRUST AND ESTATE LAW

David W. Kirch (303) 671-7726, dkirch@dwkpc.net Emily Bowman (303) 671-7726, ebowman@dwkpc.net

MORE WAYS TO CONTRIBUTE

Joel M. Jacobson (303) 800-9120, joel@rubiconlaw.com WELLNESS

Sarah Myers (303) 986-3345, smyers@coloradolap.org

YOUNG LAWYERS DIVISION

WHOOPS—LEGAL MALPRACTICE PREVENTION

Amanda T. Huston (970) 225-6700, ahuston@cp2law.com

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

Amy Larson Amy Larson is the new executive director and CEO of the Colorado and Denver Bar Associations.

PROFILE

Describe yourself in four words. Positive, Motivated, Strategic, Dedicated.

Hometown: Orange, California

What’s the best advice you’ve ever been given? “Behind every face is a drama going on.” Everyone is living a lot of life. Caring matters.

Lives in: Henderson, Colorado Education: MPA in Intergovernmental Management, University of Southern California Works at: CBA/DBA

What’s the worst advice you’ve ever been given? “Trust your gut.” It’s overused. I believe there’s wisdom in a multitude of counselors. Favorite place you’ve traveled to: St. Paul de Vence, France. A medieval hill town exquisitely nestled above the sea.

CBA Member Since: 2007

What’s the most random job you’ve ever had? Sign waver to promote a local housing development. I had just finished grad school. Recession hit hard. Jobs were scarce. It served a purpose. How do you find work/life balance? It’s an evolving center of gravity!

Would you like to be featured in Under Oath? Email Jessica Espinoza at jespinoza@cobar.org for a questionnaire.

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What do you consider your greatest achievement? My three children. They are my blessings! How has the CBA impacted your career? Game changer! Never have I witnessed a group of professionals so dedicated to one another and to their calling. Our members and staff are committed; it’s a dynamic I’m privileged to experience and embrace. When you aren’t working, how do you like to spend your time? I love to be with my family and friends. I also enjoy singing, playing the piano, cooking, reading, taking long walks, and swimming. Who is your hero and why? My husband. He’s my Renaissance man! What is the most meaningful object you have on your desk? It’s a photo of a ship charting a wild ocean storm. The caption says: “CHALLENGES. Anyone can hold the helm when the sea is calm.” This picture has shared my desk since 1990.


SOLACE Program is Here to Help

SOLACE, standing for “Support of Lawyers/ Legal Personnel— All Concern Encouraged,” 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

Contact solace@cobar.org

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