Nancy J. Lichtenstein

In this unemployment benefits case, claimant John Norman sought review after the Industrial Claim Appeals Office denied his request for a new hearing on an employer's appeal that resulted in the loss of his benefits award. The employer had timely appealed a deputy's decision granting benefits, but the appeal was not served on Norman, and the first notice he received was a hearing notice sent after he had left on a short trip; he missed the hearing, learned of the disqualification only afterward, and promptly requested a rehearing. The court set aside the Panel's order and remanded for a new hearing, concluding that Norman had shown good cause for his absence. It reasoned that a reasonably prudent person would not have anticipated a hearing being scheduled and held so soon after the appeal deadline or made mail arrangements during a brief absence, especially given the deputy's advisement that an appeal might not even be accepted, and that other regulatory factors such as lack of timely notice and the interest in a fair resolution supported excusing the failure to appear.

labor & employmentprocedure

This case involved a dispute over attorney fees in an eminent domain action where the City of Colorado Springs condemned property owned by Andersen Mahon Enterprises for a roadway project. After a commission valued the property at $1,542,294—28.5% above the city's last written offer of $1,200,000—the trial court awarded fees to the owner under section 38-1-122(1.5) by including prejudgment interest in the "award by the court" calculation to exceed the 130% threshold. The Colorado Court of Appeals reversed, holding that the statutory phrase "award by the court" refers only to the commissioners' or jury's valuation award and does not incorporate prejudgment interest added under section 38-1-116. The court reasoned that the plain language of the fee statute, its distinction from interest provisions, and the legislature's choice of wording supported treating the valuation and interest as separate for the fee trigger.

propertyprocedure

The case involved Richard Allen Price's conviction following a jury trial on one count of sexual assault on a child, four counts of sexual assault on a child as part of a pattern of abuse, and five counts of aggravated incest, all based on alleged assaults of S.P. Price appealed the trial court's denial of a mistrial motion after his mid-trial suicide attempt and hospitalization, along with claims of a fatal variance between the charging documents and verdict forms and ineffective assistance of counsel. The court affirmed the judgment, concluding that Price's absence was voluntary under Crim. P. 48(b) and constituted a waiver of his right to be present, that no competency hearing was required under the circumstances, and that the ineffective assistance claim could not be addressed on direct appeal because it required further factual development in postconviction proceedings.

criminal lawprocedure

This case concerned the validity of a 2008 court-ordered annual shareholder meeting of Stan Lee Media, Inc., an administratively dissolved Colorado corporation, where the special master rejected certain proxy appointments for lacking dates or timely submission and concluded no quorum existed to elect a board of directors. The district court adopted the special master's report and denied a motion to reconvene the meeting. The appellate court reversed, holding that the company's bylaws require only a signed proxy form for validity at the specific meeting and that neither the court nor special master could impose additional requirements such as dating or early deadlines. The court further reasoned that proxies submitted for this meeting did not raise staleness concerns under the bylaws or statutes, resulting in a sufficient quorum. The case was remanded for further proceedings.

business & regulatoryprocedure

The case involved Boulder County homeowners Kenneth and Darla Shupe, who sought a special use permit to host events in a barn on their 4.8-acre agricultural-zoned property but were blocked when county officials determined the principal use was residential rather than agricultural. The Board of Adjustment upheld the director's residential-use determination, but the district court reversed it, and the Colorado Court of Appeals affirmed. The court held that article 4-502(E)(5)(c) of the Boulder County Land Use Code expressly treats one single-family dwelling as customary and incidental once open agricultural uses are present on the parcel, so the principal use cannot be classified as residential. Review was limited to whether the board abused its discretion by misapplying the code's plain language.

propertybusiness & regulatory

In People v. Gardner, the defendant appealed the denial of his Crim. P. 35(c) postconviction motion after pleading guilty in 2006 to three class-three felony theft counts arising from misrepresentations about accounts receivable to obtain funding from factoring companies. The court held that a guilty plea does not waive a double jeopardy claim based solely on the facial multiplicity of the charges, and it examined whether the applicable version of section 18-4-401(4) required treating all thefts within any six-month period as a single offense. It concluded that the two identical counts from case 05CR5321 (both covering September-October 2005) were multiplicitous and violated double jeopardy, but the remaining count from a separate case (covering March 2004-April 2005) was not, and it rejected the defendant's other constitutional and jurisdictional challenges. The district court's order was therefore reversed in part, affirmed in part, and remanded for further proceedings limited to the multiplicitous counts.

criminal lawprocedure

In this case, defendant Jorge Zamora appealed his convictions for first-degree murder, conspiracy to commit murder, and menacing, contending that the trial court should have suppressed statements he made during a Spanish-language phone call from a police interrogation room and prior statements about a gun, and should have excused two prospective jurors who expressed anti-gang bias. The Colorado Court of Appeals affirmed the convictions. The court reasoned that Zamora lacked any objectively reasonable expectation of privacy in the phone call because a detective was present and could overhear it, even though Zamora spoke in Spanish; the prior gun statements were admissible; and the jurors could be fair and impartial because they stated they would follow the law, presume innocence, and decide based on the evidence.

criminal lawprocedure

In People v. Mantos, the defendant was convicted of felony sexual exploitation of a child based on child pornography files found on his computer in a folder created by a file-sharing program, where the master sharing setting had been disabled but individual files remained on the default share setting. The prosecution argued that downloading and saving the files in that location amounted to preparing or arranging for distribution under section 18-6-403(8)(b), C.R.S. 2008. The Colorado Court of Appeals vacated the conviction and remanded for entry of judgment of acquittal, concluding that the evidence was insufficient to establish any of the statutory acts such as producing, making, publishing, promoting, offering, or distributing the material. The court reasoned that merely downloading already-existing files and saving them without any actual sharing or creation of the content did not meet the elements of the offense as submitted to the jury.

criminal law

This case involved doctors James Lee, Jeffrey Lee, and their clinic suing Banner Health, North Colorado Medical Center, and various physicians and administrators, alleging improper denial of trauma privileges, a flawed peer review process, and retaliation for refusing to support restrictions on endoscopy procedures, along with claims of defamation and invasion of privacy from public statements and confrontations. The trial court dismissed the claims for lack of subject matter jurisdiction due to failure to exhaust administrative remedies under the Colorado Professional Review Act. On appeal, the court reversed the dismissal of Dr. James Lee's defamation and invasion of privacy claims based on alleged public denouncements, as well as most claims by Dr. Jeffrey Lee and the clinic, reasoning that those tort claims arose from conduct outside the formal peer review process and thus were not subject to the exhaustion requirement; it affirmed the dismissal of the remaining claims and remanded for a hearing on immunity under the Health Care Quality Improvement Act.

healthcareproceduretorts & liability

In this case, plaintiff Matt A. Dubois sought a declaratory judgment that Colorado's Sex Offender Registration Act did not require him to register as a sex offender. Dubois had pleaded guilty in 1991 to sexual assault on a child under a two-year deferred judgment and sentence, which he successfully completed, and later pleaded guilty to theft in 1998. The district court ruled against him, and the Colorado Court of Appeals affirmed. The court held that the Act's plain language defines "convicted" to include receiving a deferred judgment and sentence without any exception for successful completion, and that a separate provision allowing petitions to discontinue registration after completion would be meaningless if registration were not initially required. The court declined to address an unpreserved procedural due process claim.

criminal lawprocedure

The case involved a defendant who pleaded guilty to three felony drug charges from 2004 and 2005 and received aggravated prison sentences that were suspended on the condition of completing a drug treatment program while on probation. After the defendant failed the program and was resentenced to the Department of Corrections, he filed a postconviction motion arguing that the court lacked authority to suspend the sentences because they were mandatorily aggravated. The district court denied the motion, and the appellate court affirmed, concluding that the version of the sentencing statute in effect at the time of the offenses permitted suspension since the aggravation provision did not require incarceration. The court distinguished prior case law based on an earlier statutory version and noted that issues not raised in the original motion would not be considered.

criminal lawprocedure

The case involved the Denver Department of Human Services appealing a juvenile court's dismissal of a child support action it had filed on behalf of a mother against the father of their child. The juvenile court had ruled it lacked subject matter jurisdiction because the parents were married and paternity was undisputed, directing the parties instead to district court in a potential dissolution proceeding. The Court of Appeals held that the juvenile court possessed concurrent jurisdiction under the Children's Code, specifically sections 19-1-104 and 19-6-101, to issue support orders and related parenting allocations regardless of the parents' marital status or whether paternity was contested. It vacated the dismissal order and remanded the case for reinstatement of the action, provided no dissolution case had been filed. The decision also addressed the department's lack of notice for certain hearings.

family lawprocedure

This workers' compensation case involved claimant Dale Ruff, who received permanent partial disability benefits and challenged the denial of a protective order to prevent a division-sponsored independent medical examination (DIME) by a physician affiliated with the insurer Pinnacol Assurance through a referral network and advisory role. The administrative law judges and Industrial Claim Appeals Office found no actual or apparent conflict of interest under Division Rule 11-2(H) and upheld the DIME results determining maximum medical improvement and impairment rating. The court affirmed the finding of no actual conflict but set aside the determination on apparent conflict, holding that the ALJ applied an overly narrow standard focused only on direct financial interest in the case outcome and must instead assess the extent of the physician's financial relationship with the insurer on a case-by-case basis. It also rejected the claimant's argument that the DIME physician performed a quasi-judicial function requiring broader disclosures and remanded for further findings while allowing additional evidence if needed.

labor & employmentprocedure

The case involved plaintiffs Roberta and Michael Grear suing defendant Henry Mulvihill, along with other defendants, to quiet title in real property and asserting claims including for filing spurious lien documents under Colorado law. The trial court dismissed the claims against Mulvihill after deeming an amended complaint improper without court leave, since other defendants had answered, and awarded Mulvihill attorney fees and costs. The appellate court reversed the dismissal and fee award, concluding that plaintiffs could amend their complaint as of right against Mulvihill because he had not filed a responsive pleading, so the motion to dismiss should have been evaluated under the amended complaint; it also rejected arguments that certification for appeal was improper or that the appeal was untimely.

propertyprocedure

In this workers' compensation case, claimant Robert Ortega sought review of an order denying benefits for an alleged work-related injury from employer King Soopers, challenging the ALJ's denial of a continuance and exclusion of his untimely medical reports under the twenty-day disclosure rule of section 8-43-210. The court affirmed the Panel's order upholding the ALJ's decision, holding that the ALJ did not abuse discretion in denying the continuance because claimant failed to show good cause, having waited until the hearing date despite having obtained a relevant report months earlier and despite employer's offer to allow admission of the reports. The court also concluded that exclusion of the reports did not violate due process, as claimant had adequate time to obtain evidence, was offered a way to present it, and was able to cross-examine employer's witness using the reports' contents. The ALJ's finding that claimant failed to prove the injury was work-related was therefore upheld.

labor & employmentprocedure

In Kearl v. Portage Environmental, Inc., the plaintiff, an at-will employee, alleged he was terminated after raising internal concerns that his employer was ignoring data showing a cleanup technology was ineffective on a federal remediation project, potentially leading to fraud on the government and increased public health risks. The trial court dismissed the complaint for failure to state a claim under the public policy exception to at-will employment. The appellate court reversed, holding that Colorado recognizes a clear public policy against retaliatory discharge for good-faith efforts to prevent employer fraud on the government, and that the plaintiff's allegations sufficiently notified the employer of both the public policy element and the required scienter that the employer knew or should have known of the employee's belief in fulfilling a public duty. The case was remanded to reinstate the complaint.

labor & employmentbusiness & regulatory

Arthur, a veteran who served on active duty during Operation Iraqi Freedom, applied for a firefighter position with the City and County of Denver and requested five veterans' preference points on his entrance exam under the Colorado Constitution, but the Commission denied the request because his DD-214 did not show authorization for a qualifying campaign badge. The trial court granted summary judgment to the defendants after finding insufficient proof of eligibility under article XII, section 15. On appeal, the court reversed and directed entry of judgment for Arthur, interpreting the constitutional provision based on 1970 voter intent to cover service in undeclared wars or armed hostilities and aligning it with the federal definition of qualifying service under 5 U.S.C. § 2108 for operations like Iraqi Freedom.

labor & employmentcivil rights

In People v. Fiske, the defendant pleaded guilty to manslaughter and robbery pursuant to an Alford plea and agreement that allowed for consecutive or concurrent sentences but made no sentencing concessions. The trial court imposed aggravated sentences exceeding the presumptive maximum based on a prior misdemeanor conviction as a Blakely-exempt fact that widened the range, along with the circumstances of the current offenses, without first determining whether the prior conviction itself constituted an extraordinary aggravating circumstance under Colorado sentencing statutes. The appellate court held that section 18-1.3-401 requires such a determination on a Blakely-exempt fact before an aggravated sentence may be imposed beyond the presumptive range, and that the trial court's failure to make this finding, while relying instead on non-exempt facts, constituted error. The court therefore vacated the sentences and remanded for resentencing. The defendant did not admit that the prior conviction was extraordinarily aggravating, and the court declined to rule as a matter of law that it could never qualify as such.

criminal lawprocedure