A jury convicted defendant of first degree assault for stabbing the victim. The prosecutor timely sought restitution to compensate the Crime Victim Compensation Fund (CVCF). Defense counsel filed a general objection and appeared at the restitution hearing without defendant, requesting the court to proceed with the restitution hearing. The prosecutor called the CVCF coordinator as the sole witness. Defense counsel neither cross-examined her nor presented any evidence. The court awarded the amount requested.

On appeal, defendant argued that the trial court erred by proceeding with the restitution hearing in his absence. A defendant has the right to be present at a restitution hearing, and defense counsel cannot unilaterally waive a defendant’s presence at the hearing. The record here does not show that defendant authorized his counsel to waive his presence, nor that he even knew of the restitution hearing. Based on these facts, the trial court plainly erred by holding the restitution hearing in defendant’s absence.

Defendant also argued that he was denied due process because CRS § 18-1.3-603(10) creates a rebuttable presumption, and the information submitted to the Crime Victim Compensation Board is confidential so he could not contest the restitution request. The record is unclear whether the trial court applied this rebuttable presumption, or whether it will apply the presumption if it conducts a new hearing. Thus, to the extent defendant asserted the unconstitutionality of the statute as applied, the Court of Appeals declined to address the argument. However, in the interest of judicial economy, the Court addressed the argument to the extent the challenge is facial and determined that the facial challenge failed.    

The order was vacated and the case was remanded.

The child’s mother is deceased and the father was incarcerated in Las Vegas, Nevada. A court appointed the child’s aunt and uncle guardians for the child in Utah. The aunt and uncle later filed petitions for kinship adoption and to terminate father’s parental rights. Father, who was not represented by counsel, objected to the adoption via written correspondence and requested the appointment of a guardian ad litem (GAL) for the child. The court took no action on father’s request for a GAL because father did not appear at the termination and adoption hearing. After a brief hearing, the court terminated father’s parental rights and entered a final decree of adoption.

On appeal, father contended that he was denied his right to counsel because he was incarcerated out-of-state and had no ability to participate in the proceedings. The parental right to raise one’s child is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. In Colorado, an indigent parent does not have a statutory right to court-appointed counsel in kinship adoption proceedings. The presumption against a right to counsel is weighed against (1) the private interests at stake, (2) the government’s interest, and (3) the risk that the procedures used will lead to an erroneous decision. Here, although father did not formally request counsel, his petition to appoint a GAL indicated that he was a pretrial detainee, indigent, and unable to afford court costs associated with the case. The juvenile court should have considered father’s communications as a request for the appointment of trial counsel, or at least asked father if he wanted counsel. In reviewing father’s right to counsel, the Court of Appeals concluded that (1) his interests were strong; (2) the state’s interests in not appointing counsel were weak; and (3) the risks of error were significant for father in defending his rights without the assistance of counsel. Therefore, the presumption against the right to counsel was overcome and father had a due process right to counsel.

Father also contended that the juvenile court abused its discretion when it failed to appoint a GAL. He contended that the court erred by not making factual findings on whether a GAL appointment was in the child’s best interest. Although appointment of a GAL is not statutorily required, nothing prohibits such appointment should a parent fail to appear. On remand, if father or another party requests a GAL appointment, the juvenile court must make findings on whether such appointment is in the child’s best interest and, if not, why.

The judgment terminating father’s parental rights and decreeing the child’s adoption was vacated and the case was remanded.

Herman worked as a legal recruiter for 23 LTD, d/b/a Bradsby Group (Bradsby). When she was hired, Herman signed an employment agreement with a nonsolicitation provision and a noncompete provision. Bradsby terminated Herman’s employment and she thereafter founded a company that did some legal recruiting and law firm succession planning. Bradsby sued Herman for breach of the noncompete and nonsolicitation provisions. A jury determined that Herman had not breached the noncompete provision, but returned a verdict in favor of Bradsby on the nonsolicitation claim and awarded nominal damages of one dollar. The district court set aside that verdict and entered judgment in favor of Herman because the nonsolicitation provision violates Colorado law and the court declined to narrow the provision to render it enforceable. The court denied Herman’s request for attorney fees under the employment agreement’s fee-shifting provision.

On appeal, Bradsby argued that the district court erred in declining to blue pencil the nonsolicitation provision. Parties to an employment, noncompete, or nonsolicitation agreement cannot contractually obligate a court to blue pencil noncompete or nonsolicitation provisions to render unenforceable terms enforceable. But a trial court has broad discretion to blue pencil an otherwise offensive restrictive covenant. Here, the district court gave substantial reasons why it declined to exercise its discretion to blue pencil the agreement, including the general Colorado public policy against noncompete provisions, authority in other jurisdictions, and the significant overbreadth of the nonsolicitation provision. Thus, the district court did not err.

Bradsby next argued that the jury’s verdict that Herman did not form a competing company in violation of the noncompete provision is not supported by the evidence. The noncompete provision stated that, upon her termination, Herman would not become involved in a company that competed with Bradsby within a defined restricted area. Although the parties presented conflicting evidence, Herman testified that her company was not primarily a recruiting company, any recruiting work was undertaken outside the restricted area, and the company maintained a business address outside the restricted area. Therefore, the record supported the jury’s verdict.

On cross-appeal, Herman argued that the court abused its discretion in declining to award her attorney fees under the agreement’s fee-shifting provision. Because Herman was the prevailing party in this matter, she was entitled to attorney fees.

The merits judgment in favor of Herman was affirmed. The order denying attorney fees to Herman was reversed and the district court was directed to enter an order awarding Herman reasonable attorney fees.

In 1999 Piñon Ridge Mining (Piñon) obtained a permit for a uranium mining operation (the site), releasing the company’s predecessor from its permit. The site last produced ore in 1989. In 2014, the Division of Reclamation, Mining, and Safety (the Division) approved an initial period of temporary cessation for the site effective in June 2012. Piñon had not extracted minerals since taking over the site because the depressed market price of uranium made production unprofitable. Piñon filed a request for approval of a second period of temporary cessation for the site in May 2017. Information Network for Responsible Mining, Earthworks, and Sheep Mountain Alliance (collectively, the objectors) objected to the request. The Colorado Mined Land Reclamation Board (the Board) granted the request. The district court affirmed the Board’s order.

On appeal, the objectors asserted that the district court erred in affirming the Board’s order, which ignored the plain language of the Colorado Mined Land Reclamation Act (MLRA) when approving a second period of temporary cessation. Under the MLRA, a mining permit may continue in effect even if the mining operation temporarily ceases production for 180 days or more if the operator files a notice of temporary cessation with the Office of Mined Land Reclamation. Production must be resumed within five years of temporary cessation or the operator must file a report requesting an extension of the temporary cessation period. But temporary cessation may not be continued for more than 10 years without terminating the operation and fully complying with the MLRA’s reclamation requirements.

Under the MLRA, temporary cessation is a factual status, rather than a legal one. A mine is in temporary cessation status once 180 days have passed without production, even if the Division or the Board has not received or acted upon the required notice. Here, because the site’s period of temporary cessation began no later than 1999, production had to resume by 2009 to prevent termination of the operation. However, the site never recommenced production. Therefore, the Board abused its discretion in approving the second temporary cessation period. Further, because temporary cessation of the site has continued for more than 10 years, the operation must be terminated and the operator must fully comply with MLRA’s reclamation requirements.

The judgment was reversed and the case was remanded with directions.

The Department of Justice (DOJ) brought an antitrust suit against SG Interests I, Ltd. and SG Interests VII, Ltd. (collectively, SGI) and Gunnison Energy Corporation (GEC) for illegal joint bidding at Bureau of Land Management (BLM) auctions. The district court rejected the parties’ first proposed settlement, but the case was resolved by a second settlement agreement. Thereafter, defendant Kolbenschlag, an environmental activist, posted a reader comment to the online version of a newspaper article about SGI. In the comment, he stated that SGI “was actually fined for colluding (with GEC) to rig bid prices and rip off American taxpayers,” and he included a link to the DOJ press release describing the first settlement agreement. SGI sued Kolbenschlag for defamation. Kolbenschlag moved to dismiss, and the district court converted the motion to one for summary judgment. SGI filed a response and sought leave to take Kolbenschlag’s deposition concerning his factual basis for stating the comments were substantially true. The district court granted the motion for summary judgment and denied SGI’s request to depose Kolbenschlag.

On appeal, SGI first contended that the district court erroneously concluded that Kolbenschlag’s comments were substantially true and immaterial. Here, Kolbenschlag’s comment that SGI and GEC “colluded to rig bid prices,” as understood by the average reader, is substantially true and is well supported by the record. Further, Kolbenschlag’s comment that SGI was “actually fined” is not problematic. The undisputed record demonstrates that SGI paid 12 times the actual amount of damages to settle two civil claims related to its illegal bidding practices and it agreed to additional restrictions to its bidding practices in future joint bidding ventures. Thus, plaintiffs failed to prove the elements of defamation.

SGI next contended that the district court erroneously denied its discovery request to depose Kolbenschlag. Because Kolbenschlag’s subjective belief in the truth of his comment is not relevant and SGI failed to allege additional facts it could have discovered through a deposition, the district court did not abuse its discretion by denying the request.

Kolbenschlag requested attorney fees and costs on appeal. Because SGI’s appeal was groundless and frivolous, Kolbenschlag is entitled to attorney fees and costs.

The judgment was affirmed and the case was remanded for the district court to determine and award reasonable appellate attorney fees.