SUPREME COURT, STATE OF COLORADO



SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Tuesday, December 2, 2008 EN BANC

Bailiff: James Qaqundah/Andrew Mutz

08SA29 (1 HOUR)

|Plaintiff-Appellant: |))))|For the Plaintiff-Appellant: |

| |))))|Timothy R. Buchanan |

|The North Sterling Irrigation District, |))))|Buchanan and Sperling, P.C. |

| |))))| |

|and |))))|For the Intervenors-Plaintiffs-Appellants: |

| |))))|Veronica A. Sperling |

|Intervenors-Plaintiffs-Appellants: |))))|Buchanan and Sperling, P.C. |

| |))))| |

|City of Boulder; Centennial Water & Sanitation District; and Pawnee |))))|For the Defendant-Appellees: |

|Wells Users, Inc., |))))|John W. Suthers |

| |))) |Attorney General |

|v. | |Devin R. Odell |

| | |Assistant Attorney General |

|Defendants-Appellees: |))))|Natural Resources and |

| |))))|Environment Section |

|Harold D. Simpson, P.E., in his capacity as the Colorado State |))))| |

|Engineer; and James R. Hall, P.E., in his capacity as the Division |))))|For the Intervenor-Defendant-Appellee City of Aurora: |

|Engineer in and for Water Division 1, |))))|Steven O. Sims |

| |) |Holly K. Strablizky |

|and | |Brownstein Hyatt Farber Schreck, LLP |

| | | |

|Intervenors-Defendants Appellees: | |For the Intervenors-Defendants-Appellees Bijou Irrigation Company|

| | |and Bijou Irrigation District: |

|The City of Westminster; Irrigationists’ Association Water District | |Michael D. Shimmin |

|1; The Northern Colorado Water Conservancy District; Bijou Irrigation| |Stuart B. Corbridge |

|Company; Bijou Irrigation District; Central Colorado Water | |Vranesh and Raisch, LLP |

|Conservancy District; Groundwater Management Subdistrict of the | | |

|Central Colorado Water Conservancy District; The Well Augmentation | |For the Intervenors-Defendants-Appellees Riverside Irrigation |

|Subdistrict of the Central Colorado Water Conservancy District; The | |District and Riverside Reservoir and Land Company: |

|Lower South Platte Water Conservancy District; The Cache La Poudre | |Mark J. Wagner |

|Irrigating Company, The Cache La Poudre Reservoir Company; | |Hill & Robbins, P.C. |

| | | |

| | | |

|Western Mutual Ditch Company; Farmer’s Independent Ditch Company; | | |

|Campbell Development, Inc.; Fox Acres Community Services Corporation,| | |

|The City of Aurora, Riverside Irrigation District, Riverside | | |

|Reservoir and Land Company, Fort Morgan Reservoir & Irrigation | | |

|Company; and The Jackson Lake Reservoir & Irrigation Company. | |Cont’d on Next Page |

| | |Cont’d from Previous Page |

| | | |

| | |For Intervenors-Defendants-Appellees Central Colorado Water |

| | |Conservancy District, Groundwater Management Subdistrict of the |

| | |Central Colorado Water Conservancy District, the Well |

| | |Augmentation Subdistrict of the Central Colorado Water |

| | |Conservancy District, the Farmers Independent Ditch Company and |

| | |Western Mutual Ditch Company: |

| | |Bradley C. Grasmick |

| | |Kim R. Lawrence |

| | |Lind, Lawrence & Ottenhoff LLP |

| | | |

| | |For Intervenors-Defendants-Appellees Fort Morgan Reservoir and |

| | |Irrigation Company, and Jackson Lake Reservoir and Irrigation |

| | |Company: |

| | |Cynthia F. Covell |

| | |Andrea L. Benson |

| | |Alperstein & Covell, P.C. |

Appeal from the District Court, Water Division No. 1, 05CW125.

Docketed: January 25, 2008

At Issue: September 9, 2008

ISSUE(S):

Whether a storage water right is entitled to divert water in accordance with the Colorado constitution and law when in-priority and to satisfy the fill of the water right.

Whether a storage water right has no decreed season of diversion limitation and has operated pursuant to “low point” administration for nearly one hundred years, whether it was error for the Water Court to order a change in the historical administration of the water right.

Whether the Water Judge erred in determining that administration of the “one-fill” rule for the North Sterling Reservoir storage water rights should be based on a fixed water year selected by the State and Division Engineers, rather than on the historical exercise and operation of the North Sterling Reservoir storage water rights.

Whether the Water Judge erred in determining as a matter of law that there could be no injury to Centennial’s, Boulder’s and Pawnee’s water rights from the imposition of a fixed water year selected by the State and Division Engineers.

______________________________________________________________________________

Oral Argument: Tuesday, December 2, 2008 10:00 a.m.

EN BANC

07SC983 (½ HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|Mark G. Walta |

|Charles Farrar, |))) |Mark Gregory Walta L.L.C. |

| | | |

|v. | |For the Respondent: |

| | |John W. Suthers |

|Respondent: | |Attorney General |

| | |Patricia R. Van Horn |

|The People of the State of Colorado. | |Assistant Attorney General |

| | |Appellate Division |

| | |Criminal Justice Section |

Certiorari to the Colorado Court of Appeals, 02CA1358

Docketed: November 19, 2007

At Issue: October 9, 2008

ISSUE(S):

Whether a new trial is required when the trial court finds that an alleged sexual assault victim has “substantial credibility issues,” and that her post-conviction recantation is no more or less believable than her testimony at trial, in a case where the credibility of the alleged victim was the sole issue at trial.

______________________________________________________________________________

Oral Argument: Tuesday, December 2, 2008 10:30 a.m.

EN BANC

08SC63 (1 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|Timothy J. Schutz |

|Mary K. Krueger, personal representative of the Estate of Iver M. |))))|January D. Barrett |

|Villa, a/k/a Iver Martin Villa, and a/k/a Martin Villa, deceased, | |Richard W. Hanes |

| | |Hanes & Schutz, LLC |

|v. | | |

| | |For the Respondent: |

|Respondent: | |James D. Osbourne |

| | | |

|Marlyn L. Ary. | | |

Certiorari to the Colorado Court of Appeals, 06CA2142

Docketed: January 24, 2008

At Issue: September 16, 2008

ISSUE(S):

Whether the court of appeals erred in affirming the trial court’s decision not to instruct the jury, in accordance with C.J.I.4th 30:16, that the Subject Transfers were presumed to be unfair, unjust and unreasonable in review of the confidential relationship between the decedent and his caregiver.

Whether the court of appeals erred in affirming the trial court’s decision not to instruct the jury, in accordance with C.J.I.4th 34:16, that the Subject Transfers were presumed to be the product of undue influence in view of the relationship between the decedent and his caregiver, coupled with the fact that the caregiver was involved in the creation of the documents by which the transfers were made.

Whether the court of appeals erred in failing to consider and apply the compelling policy considerations that dictate that the presumptions set forth in C.J.I.4th 30:16 and 34:16 should be given to the jury, irrespective of whether the defendant has introduced some evidence rebutting the presumption.

______________________________________________________________________________

SUPREME COURT, STATE OF COLORADO 1:30 p.m.

Oral Argument: Tuesday, December 2, 2008 EN BANC

Bailiff: Ginette Chapman/Jason Malinsky

07SC977 (1 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|Howard Kenison |

|Board of County Commissioners of the County of Adams, State of |))))|Stuart N. Bennett |

|Colorado, |))))|Lindquist & Vennum P.L.L.P. |

| |))))| |

|v. |))))|For the Respondent: |

| | |John W. Suthers |

|Respondent: | |Attorney General |

| | |David E. Kreutzer |

|Colorado Department of Public Health and Environment, | |First Assistant Attorney General |

| | |Jerry Goad |

|Intervenor-Respondent: | |Senior Assistant Attorney General |

| | |Natural Resources & Environment Section |

|Clean Harbors Deer Trail, LLC. | | |

| | |For the Intervenor-Respondent: |

| | |David W. Stark |

| | |Todd P. Walker |

| | |Brandee L. Caswell |

| | |Faegre & Benson |

| | | |

| | |For Amicus Curiae Colorado |

| | |Counties, Inc.: |

| | |Bruce T. Barker |

| | |Weld County Attorney |

Certiorari to the Colorado Court of Appeals, 06CA1255

Docketed: November 16, 2007

At Issue: October 20, 2008

ISSUE(S):

Whether Adams County has standing to challenge the Colorado Department of Public Health and Environment’s decision to issue a radioactive materials license, which authorized the disposal of certain types of radioactive waste, to a waste disposal facility located in the County on the ground that the facility failed to first obtain a certificate of designation from the County specifically authorizing the disposal of such waste.

Whether Adams County has standing to challenge the Colorado Department of Public Health and Environment’s decision to modify a hazardous waste disposal permit issued to the same waste disposal facility on the ground that the modified permit incorporated the terms of the radioactive materials license without first obtaining a modified hazardous waste certificate of designation from the County, or otherwise obtaining the County’s approval.

______________________________________________________________________________

Oral Argument: Tuesday, December 2, 2008 2:30 p.m.

EN BANC

07SC978 (1 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|Howard Kenison |

|Board of County Commissioners of the County of Adams, State of |))))|Stuart N. Bennett |

|Colorado, |))))|Lindquist & Vennum P.L.L.P. |

| |))))| |

|v. |)) |For the Respondent: |

| | |John W. Suthers |

|Respondent: | |Attorney General |

| | |David E. Kreutzer |

|Colorado Department of Public Health and Environment, | |First Assistant Attorney General |

| | |Jerry Goad |

|and | |Senior Assistant Attorney General |

| | | |

|Intervenor-Respondent: | |For Intervenor-Respondent: |

| | |David W. Stark |

|Clean Harbors Deer Trial, L.L.C., a Colorado Limited Liability | |Todd P. Walker |

|Company. | |Brandee L. Caswell |

| | | |

| | |For Amicus Curiae Colorado |

| | |Counties, Inc.: |

| | |Bruce T. Barker |

| | |Weld County Attorney |

Certiorari to the Colorado Court of Appeals, 06CA1891

Docketed: November 16, 2007

At Issue: October 20, 2008

ISSUE(S):

Whether Adams County has standing to challenge the Colorado Department of Public Health and Environment’s decision to issue a radioactive materials license, which authorized the disposal of certain types of radioactive waste, to a waste disposal facility located in the County on the ground that the facility failed to first obtain a certificate of designation from the County specifically authorizing the disposal of such waste.

Whether Adams County has standing to challenge the Colorado Department of Public Health and Environment’s decision to modify a hazardous waste disposal permit issued to the same waste disposal facility on the ground that the modified permit incorporated the terms of the radioactive materials license without first obtaining a modified hazardous waste certificate of designation from the County, or otherwise obtaining the County’s approval.

______________________________________________________________________________

SUPREME COURT, STATE OF COLORADO 9:00 a.m.

Oral Argument: Wednesday, December 3, 2008 EN BANC

Bailiff: Ruth Mackey/Erin Overturf

08SA109 (1 HOUR)

|Plaintiff-Appellant: |))))|For the Plaintiff-Appellant: |

| |))))|Max I. Exline |

|Ralph L. Archuleta, |) | |

| | |For the Defendant-Appellee: |

|v. | |Henry D. Worley |

| | |MacDougall, Woldridge & Worley, P.C. |

|Defendant-Appellee: | | |

| | | |

|Theodore Gomez. | | |

Appeal from the District Court, Water Division No. 1, 06CW92

Docketed: April 1, 2008

At Issue: September 29, 2008

ISSUE(S):

Whether the trial court erred in finding the requirements of the 18 year statute of limitations and adverse possession statute had been met, where there was no evidence the defendant made actual, continuous and exclusive use of all of the plaintiff’s water.

Whether the trial court erred in failing to require the defendant to prove his alleged adverse use of plaintiff’s water was pursuant to a valid appropriation and was taken in priority.

Whether the trial court erred in finding that Plaintiff’s claim as to Archuleta Ditch (Priority 30) was substantially frivolous and awarding attorney fees.

______________________________________________________________________________

Oral Argument: Wednesday, December 3, 2008 10:00 a.m.

EN BANC

07SC483 (1 HOUR)

|Petitioners: |))))|For the Petitioners: |

| |))))|Thomas P. Johnson |

|Farmers Insurance Exchange, an insurer, and owner of Mid-Century |))))|Janette L. Ferguson |

|Insurance Company; and Mid-Century Insurance Company, a California |))))|Davis, Graham & Stubbs, LLP |

|corporation, |))) | |

| | |For the Respondent: |

|v. | |Robert B. Carey |

| | |Leif Garrison |

|Respondent: | |The Carey Law Firm |

| | |and |

|Marc A. Benzing, on behalf of himself and all others similarly | |Walter H. Sargent |

|situated. | |Walter H. Sargent, a |

| | |Professional Corporation |

| | | |

| | |For Amicus Curiae Colorado Civil Justice League, Colorado |

| | |Association of Commerce and Industry, Colorado Competitive |

| | |Council and Denver Metro Chamber of Commerce: |

) Timothy R. Macdonald

) James E. Scarboro

) Arnold & Porter LLP

)

) For Amicus Curiae The Colorado Trial

) Lawyers Association:

) Bradley A. Levin

) Alexa R. Salg

) Roberts, Levin & Rosenberg, P.C.

)

) For Amicus Curiae John Quinn, Marcia

) Quinn and Lynn Young:

) Robert F. Hill

) John H. Evans

) Nathan P. Flynn

) Hill & Robbins, P.C.

) and

) Thomas D. McFarland

) McFarland Law Offices

) and

) M. Gabriel McFarland

) Luke McFarland

) Evans & McFarland, LLC

Cont’d on Next Page

Cont’d from Previous Page

Certiorari to the Colorado Court of Appeals, 05CA1633

Docketed: June 5, 2007

At Issue: November 10, 2008

ISSUE(S):

Whether Colorado should extend the federal securities-law doctrine of “fraud-on-the-market” to relieve plaintiffs of the burden of proving causation of injury in class actions alleging non-securities claims such as insurance bad faith and violation of the Colorado Consumer Protection Act.

Whether a trial court is precluded from decertifying a class based on a ground that defendants did not assert at the initial certification hearing, where the evidence supporting that ground was not discovered until after the hearing.

Whether the court of appeals improperly reweighed the evidence and substituted its assessment for the trial court’s in reviewing the trial court’s decision to decertify a class.

______________________________________________________________________________

Public Hearing: Wednesday, December 3, 2008 3:00 p.m.

Bailiff: Susan Festag EN BANC

Proposed Changes to

Water Court Rules

SUPREME COURT, STATE OF COLORADO 8:45 a.m.

Oral Argument: Thursday, December 4, 2008 EN BANC

Bailiff: Michelle Smith

Courts in the Community

Boulder High School

Boulder, Colorado

07SC905 (1 HOUR)

|Petitioner/Cross-Respondent: |))))|For the Petitioner/Cross-Respondent: |

| |))))|Mark L. Sabey |

|Catholic Health Initiatives Colorado d/b/a Villa Pueblo Towers, |))))|Kutak Rock LLP |

| |))))| |

|v. |))))|For the Respondents/Cross-Petitioners: |

| |)) |Thomas E. Jagger |

|Respondents/Cross-Petitioners: | |Robert P. Jagger |

| | | |

|City of Pueblo, Colorado, Department of Finance; and Lara Barett as | |For Amici Curiae Christian Schools International, Azusa Pacific |

|Director. | |University, Bethesda Ministries, Christian Camp and Conference |

| | |Association, Colorado Christian University, Compassion |

| | |International, Cook Communications Ministries, Denver Rescue |

| | |Mission, Focus on the Family, HCJB Global, International |

| | |Students, Inc., The Catholic Foundation for the Roman Catholic |

| | |Church in Northern Colorado, The Christian and Missionary |

| | |Alliance, The Navigators, World Vision, Youth for Christ and YMCA|

| | |of the Rockies: |

) Stuart J. Lark

) Holme Roberts & Owen LLP

)

) For Amicus Curiae The Catholic Health

) Association of the United States:

) Peter J. Krumholz

) Richard A. Westfall

) Hale Friesen LLP

Certiorari to the Colorado Court of Appeals, 05CA2432

Docketed: October 22, 2007

At Issue: November 17, 2008

Cont’d on Next Page

Cont’d from Previous Page

ISSUE(S):

Whether the court of appeals applied the proper test for religious activity.

Whether the test for religious activity applied by the court of appeals, with which Catholic Health must comply continually to retain its tax exemption, and which the City of Pueblo must apply in subsequent audits, is unconstitutional and creates an ongoing chilling and entangling effect.

Whether the court of appeals erred in its interpretation and application of the City’s sales and use tax exemption for religious organizations by applying a rule of broad and liberal construction which has heretofore been limited to property tax exemptions under Colorado Constitution, art. X, section 5.

______________________________________________________________________________

Oral Argument: Thursday, December 4, 2008 10:15 a.m.

EN BANC

08SC10 (1 HOUR)

|Petitioner: |))))|For the Petitioner: |

| |))))|John W. Suthers |

|The People of The State of Colorado, |) |Attorney General |

| | |Paul Koehler |

|v. | |Assistant Attorney General |

| | | |

|Respondent: | |For the Respondent: |

| | |Danyel S. Joffe |

|Farrell Greenlee. | |The Joffe Law Firm |

Certiorari to the Colorado Court of Appeals, 05CA1480

Docketed: January 7, 2008

At Issue: November 10, 2008

ISSUE(S):

Whether the court of appeals erred in holding that evidence of a defendant’s plan to shoot a woman and then hide her body made two months before he shoots a woman and hides her body is inadmissible as res gestae evidence at his murder trial.

Whether the court of appeals erred in not applying a plain error standard of review to the admission of the witness’s testimony about defendant’s plan.

Whether admitting evidence erroneously under a res gestae theory, when it might have been admissible under CRE 404(b), is reversible error.

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