Petition for Writ of Certiorari — Rawson v. Sears

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NO.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1987

GARY RAWSON,

Petitioner,

SEARS, ROEBUCK AND COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

James A. Carleo

620 S. Cascade, Suite 102

Colorado Springs, Colorado 80903

(303) 630-7883

Counsel of Record

Thomas M. DeNiro

620 S. Cascade, Suite 102

Colorado Springs, Colorado 80903

(303) 630-7883

QUESTIONS PRESENTED

M< A split panel of the Federal

Appeals Court cannot abolish a citizen's

common-law right to redress for injury,

which is guaranteed to him by the

Colorado Constitution and clear Colorado

Supreme Court precedent. The result of

this decision is the reversing of the

largest discrimination verdict in U. S.

history ($15.8 million); the abolition of

Colorado common-law and the common-law of

the other 37 states with similar

constitutional provisions.

ee The split panel's refusal to apply

the long standing doctrine of "great

deference to the trial judge, unless

clearly erroneous" (commoniy called

“the local judge rule") was error and in

conflict with other circuit courts.

3. The Federal Appeals Court asked Mr.

Rawson whether he wanted the case

certified to the Colorado Supreme Court

but did not tell himthat the Court would

not be applying the "local judge rule" to

his case of first impression. Equity and

justice demand that this Court certify

the issue to the Colorado Supreme Court.

(b) PARTIES TO PROCEEDINGS BELOW

The only parties to this proceeding in

the court below are those indicated by

the caption of this case.

QUESTIONS PRESENTED

PARTIES BELOW

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE PETITION

CONCLUSION

APPENDIX

Court of Appeals Opinion

822 F.2d 908 June 10, 1987

Order Denying Petition

For Rehearing And Suggestion

For Rehearing in Banc

July 28, 1987

Letter from the Court of

Appeals, March 5, 1986

Taylor v. K Mart Corp.

No. 85-M-2336 (order) (D.

Colo. January 13, 1986)

Page

102a

104a

107a

APPENDIX - PART II

District Court Memorandum

and Opinion, 530 F.Supp.

776 - January 27, 1982

District Court Memorandum

and Opinion, 554 F.Supp.

327 - January 10, i983

District Court Memorandum

and Opinion, 585 F.Supp.

1393 - January 20, 1984

District Court Memorandum

and Opinion, 615 F.Supp.

1546 - August 28, 1985

District Court Judgment

Unpublished-October 13, 1987

Fifth Amendment to the United

States Constitution

Tenth Amendment to the United

States Constitution

Fourteenth Amendment to the

United States Constitution

United States Constitution 28

U.S.C. section 1254(1)

Colorado Appellate Rule 21.1

Certification of Questions

of Law

Page

108a

137a

212a

2l3a

214a

)

TABLE OF AUTHORITIES

Page

Bishop v. Wood,

426 U.S. 341 (1976) 28

Boccalatte v. Asamera Oil

Colo. Ct. of Appeals

No. 87CA0683 33

Goldberg v. Musim

427 P.2d 698 (Colo. 1967) 24, 27

Hackbart v. Cincinnati Bengals

601 F.2d 516 (10th Cir. 1979) 24

Taylor v. K Mart Corp.

No. 85-M-2336, (order) (D.Colo.

January 13, 1986) 31

Travelers Ins. Co. v. Savio

706 P.2d 1258 (Colo. 1985) 25

Vogts v. Guerrette

142 Colo. 527, 351 P.2d 85

(Colo. 1960) 24, 27

Weiss v. United States

787 F.2d. 518, (10th Cir. 1986) 31

Wren v. New York Life Ins. Co.

493 F.2d 839 (5th Cir. 1974) 28

Page

United States Constitution

Fifth Amendment 27, 21ia

Tenth Amendment 27, 212a

Fourteenth Amendment 27, 212a

Constitution of Colorado

Article II, Section 6 10, 23, 24

Article VI, Section 9 10

Statutes

C.8.8. 8-2-116 11, 15. 17. 20. 45

C.8.8.. 8-2-1171 1]

C.8.8. 8-3-108 )2

C.R.S. 8-3-1212 12

28 U.S.C. Section 1254 (1) 9, 2136

28 U.S.C. Section 1332 Pe

29 U.S.C. Sections 621-634, 633 17

Colorado Appellate Rule 21.1 214a

United States Court of Appeals

for the Tenth Circuit-Rules of

' Court 36.3 -Rule 36.3 i3, 3¥

IN THE SUPREME COURT

OF THE UNITED STATES -

October Term, 1987

GARY RAWSON,

Petitioner,

SEARS, ROEBUCK AND COMPANY,

Respondent.

—

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The petitioner, Gary Rawson,

respectfully prays that a Writ of

Certiorari issue to review the opinion of

the United States Court of Appeals for

the Tenth Circuit.

(d) OPINIONS BELOW

The opinions of the United States

District Court for the District of

Cclorado (Kane, John) have been reported

at 530 F.Supp. 776, 554 F.Supp. 327; 585

F.Supp. 1393; 615 F.Supp. 1546. These

opinions are reprinted in the Appendix

Part II, pp. 108a~-209a.

The opinion of the United States

Court of Appeals for the Tenth Circuit

reversing and remanding with instructions

to the District Court is reported at 822

F.2d 908 and is reprinted in the

Appendix, pp. la-69a. It includes a

detailed dissent by Judge McKay, 822 F.2d

at 922-928, and is reprinted in Appendix,

pp. 70a-10la. The Court's order denying

Mr. Rawson's Petition for Rehearing and

Suggestion for Rehearing En Banc is

reprinted in the Appendix, pp. 102a-103a

and the District Court Order diSmissing

the commplaint is included in Appendix,,

Part II, p. 210a.

(e) JURISDICTION

(i) The jurisdiction of the District

Court was invoked under 28 U.S.C. section

1332 because of diversity of citizenship,

Rawson being a citizen of Colorado, and

Sears being a New York corporation.

(ii) The date of opinion and order

of the United States Court of Appeals for

the Tenth Circuit, which determined Gary

Rawson did not have a cause of action for

age discrimination in Colorado and

remanded the case to District Court was

June 10, 1987. The crder denying

Rawson's Petition for Rehearing and

Suggestion for Rehearing En Banc was

entered by the Court of Appeals on July

28, 1987.

(iii) The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. section

1254 (1).

f. CONSTITUTIONAL PROVISIONS

AND STATUTES “i NVOLVED

* CONSTITUTION OF COLORADO

ARTICLE II Section 6. Equality of

justice. Courts of justice shall be open

to every person, and a speedy remedy

afforded for every injury to person,

property or character; and right and

justice should be administered without

sale, denial or delay.

ARTICLE VI Section 9. District courts -

jurisdiction. (1) The district courts

shall be trial courts of record with

general- jurisdiction, and shall have

original] jurisdiction in all civil,

probate, and criminal cases, except as

otherwise provided herein, and shall have

such appellate jurisdiction as may be

prescribed by law.

Colorado Revised Statutes

8-2-116. Age of employeee not ground

for discharge. No person, firm,

association, or corporation conducting

within this state any business requiring

the employment of labor shall discharge

any individual between the ages of

eighteen and sixty years, solely and only

upon the ground of age,, if such

individual ie eed versed in the line of

business carried on by such person, firm,

association, or corporation and is

Qualified physicaly, mentally, and by

training and experience to satisfactorily

perform and does satisfactorily perform

the labor assigned to him, or for which

he applies.

8-2-117. Penalty for violation. Any

person, ene association, Or

corporation, or officer, agent, or

ee i Pe

representative of such corporation who

violates, or permits to be violated, any

of the provisions of section 8-2-116,

upon conviction thereof, shall be fined

not less than one hundred dollars nor

more than two hundred fifty dollars for

each violation.

8-3-108. What are unfair labor

practices. (I) It is an unfair labor

practice for an employer, individually or

in concert with others to:

(1) Commit any crime or misdemeanor

in connection with any controversy as to

employment relations;

S-3-121. Civil liability for

damages. (1) Any person who suffers

injury because of an unfair labor

practice has a right of action, jointly

and severally, against all persons

Sarticipating in said practice for

damages caused to the injured person

thereby.

UNITED STATES COURT OF APPEALS

FOR TEE TENTH CIRCUIT

RULES OF THE COURT

36.3. Citation of Unpublished

Opinions/Orders and Judgments.

Shall not be cited, or used by any court

within the Tenth Circuit, except for

purposes of establishing the doctrines of

the law of the case, res judicata, or

The following constitutional provisions

and statutes are set forth in the

Appendix Part II:

Fourteenth Amendment to the United States

is ii

STATEMENT OF THE CASE

INTRODUCTION

This was the largest discrimination

verdict in U.S. history, $15.8 million

($24 million with interest). Sears had

been found guilty and punished by two

separate federal juries for the cruel

firing of Gary Rawson. It was age

discrimination and more.

In March 1979, -Sears fired 59 year

old Gary Rawson after 33 years of

exemplary service, the last 14 of which

he was manager of Sears' Pueblo, Colorado

store. (2032) Mr. Rawson "was discharge

in a callous and demeaning manner. . the

pw]

method of investigation and termination

was insulting and utterly disregarded

Mr. Rawson was discharged in pursuit o

company-wide plan to reduce the number of

POT TT

Older employees in order to make room for

promotions of younger employees. Sears

reaped large financial gains from

employee cutbacks. (203a-204a) Mr.

Rawson's reputation in his community was

destroyed by the acts of Sears. He was

a 2 3

totaily disgraced to the extent that he

LY al awesome Ggisplay of corporate

greed, arrogance, and insensitivity,

Sears proudly announced in open court, we

did it to him, and we'd do it again in

the same way.

Nearly destroyed by Sears, Mr. Rawson

fought valiantly to restore his dignity.

At the time of Mr. Rawson's firing,

Colorado had an unequivocally declared

public policy against firings based

sp)

soieliy on age, C.R.S. 8-2-1136 (9.11)

Because of this fact, and that Mr. Rawson

RT TT TE TT fm ee

had no remedy, Judge Kane, sitting as a

common-law court (p.10,92a) allowed Mr.

Rawson's Colorado Constitutional righc to

sue. (", . injuries occasioned by a

known wrong are compensabie. ."). (95a)

In one stroke of the pen, a split

panel of the Tenth Circuit, the majority

consisting of an appellate judge from

Utah, and a district judge from Oklahoma,

said Mr. Rawson had no cause of action

under Colorado common-law. In so doing,

the split panel abolished the common-law

in Colorado and in 37 other states which

codify the common-law in their state

Leesa tectous: As a result, the

conclusions of two juries and of the

district court judge were eviscerated, ae

victim of blatant discrimination was left

uncompensated, and a wrongdoer was left

the victor,

TRIAL COURT PROCEEDINGS

Mr. Rawson filed his complaint in

State district court at Pueblo, Colorado

July, 1981. Sears removed the case to

iled eleven state claims, ten of which

ay diem vo 7 + bh ta : os

were dismissed by the district court.

The court found that Mr. Rawson had

properly pleaded a cause of action in

claim one: age discrimination under

Colorado law. ~ (172a)

in 1986, C.R.S. 8-2-116 was repealed

by the Colorado legi

ature, and age

discriminat

Rod

da)

ie})

ry)

ee. oe oe : 4 i ee, “ar. Se ee - in 2 og he

Colorado's Civil Rights statutes, which

i Under 29 U.S.C. 621-634, 633 (ADEA)

€e also allowed to enforce

prohibitions against age dGiscrimination,

and are thus not pre-empted by the ADEA.

now provide remedies to injured persons

similar to the ADEA. (89a) This is the

common-law process at its best: in 1903,

the legislature Geclared, age

discrimination a crime; in 1982, a

federal judge, sitting es a state common-

law iudge, provided a remedy, since there

was none; in 1986, the legislature

codified and modified both the violation

and the remedy. It is the common-law

right that is at j;ssue here, not the

subsequent repeal of the statute, which

requires this Court's review. The issue

+s not mooted by the repeal of the

statute.

isp)

ears asked that the trial be

bifurcated on the issues of jiability ane

damages; their mokien wae granted. (174e)

The parties went to jury trial on the

issue of liability and a verdict in Mr.

Rawson's favor was returned on January

30, 1984, finding that Mr. Rawson had

On July 19, 1985, a second separate

ury awarded Mr. Rawson $857,000.00 in

past and future wages and benefits,

$5,000,000.00 for pain and suffering, and

Motions for new trial and judgment

N.O.V. were denied as to each verdict.

(170a, 209a)

APPELLATE COURT PROCEEDINGS

Sears filed a Notice of Appeal and

promy y posted a court ordered $24

mil on bond.

e Appellate panel recognized that

resented with a case of first

WadS

impression under Colorado law. (10a) The

Appellate Court then ordered:

"The parties are to address

whether the issue of whether there

is a private cause of action under

C.R.S. section 8-2-116 should be

“

certified to the Colorado Suprem

4 \

" Court.” GO04éa-10¢

ou)

or make Known in any manner, that tney

¢ | « re + } } -

woulda not be applying the time nonorea

rT + } > y T Cc Cc y . y

Tenth Circuit ‘and . S. Supreme Court

precedents ("ti loca judge rule”) -

that great aelerence civen to tne

2 ae ee judge's interpretatior of

local law, unless clearly erroneous.

Assuming that the “local judge ruljie”

would be applied, Mr. Rawson easily

decided not to ask for certification.

eCaris Opt Sea ( Cation. The (

was not certifi¢ to the Colorado Suprenv

Court. Brieis were then supmitted. Ore

agruments were neard on September: 68,

ae |

“,

ws or

i 7

‘

> =

~ =

= w

+- -

4 a

—_—_—_—_—

the clearly erroneous rule and its

application of a de novo standard." (84a)

- + * cg . ~ - -~ " ;

Judge McKay further stated that this

tre

49)

cannot overturn the trial court's

interpretation cf state law without

onl

2°)

49)

nugatory the clearly e

48)

—

"Nn

tandard of review--a much greater

mischief in the long run than affirming a

anal

land

pliaintiff has been wronged in violation

yo Continued. ..

Since the trial court found Mr. Rawson

| 5. €

had pleaded a suff

icient cause of action,

and Mr. Rawson prevailed on this cause of

, the verdict must be upneic under

any theory, i.e. express, impiied,

common-law, Or any recognized cause of

s of the trial court's

label for the cause of action, implicit

in hig ruling is the recognition of Mr.

Rawson's common-law right.

4 b . } 4 ) . @ ~ + 5 ,

DOT! enera i ana eqi $& a { V@ei y

. m yaw,

iecilaread pubii1c policy. rhe application

vy y ’ + a ont =. = oe . 2]

ae ¢s10n mandates that 1tS judgment ana

tnat ] cs ract-rinaing Common-1aw yur

y ~ }) ,c + + > > _

L r i Gi rik id =) eaquc.e LOdc a as

> y . + } . oy ,c fT y - y } nr t.? c

é ’ | " I oeUGUGdIe sd Vi > | el! Mai Wat

lay . T 1 ke 1 QR 10 9a )

at f A é ’ 4 4a

= )

ba) a ae + + + rN

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le ¢ 1} ( ne C lr~tcnou S ¢ LO 2 C

I ¢ OdI Z2eu WrOnds:

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Courts oi ustice sha be open

t eve} person, ana a speeaqa\

. — + + \> el. £ > EOvVvorv _— o “7 t )

‘ € ay oe ae | peeicie i \/ v ¢ — ) | jury LU

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‘ f Ne property NaraClce;y; ana

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f ana u . sn¢ } be

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j 4 Oe Ty € } wr CnoOwu >< Se Qe! CA 4

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aye

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orac( er j ri é f ‘ 1LuUIrs ana

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al POwe re ( MaKe Law.

7miS {At 27, sec. 6) "and similar

constitutional Provisions are mandates to

the judiciary rather than to iegislatures,"

Goldberg v. Musim 162 Colo. 461, 427

P.2d. 698, 702 (1967)

The Supreme Court of Colorado construing

this section has declared;

FOr any act of another which

constitutes an injurious invasion

) Y¥-FAGntef thse individual

which is recognized by or founded

upon any applicable Principle of

Statutory or Common, the

courts shall be open to him and he

shall have remedy, by due court of

law. Coldberg, Supra

When a duty has been breached

Producing a legal claim for

damages, such Claimant cannot be

denied the benefit Of his claim for

the absence of a remedy.

Vogts .v. Guerrette, 142 Colo.

527, 351 P.2d 851, 854 (1960);

"the COmmon-law stil] Obtains in

Colorado”, - Hackbart y, Cincinnati

Bengalis, 601 F.2d 516, 523 (10th ci:

1979)

So clear was this mandate that Judge

Kane had no choice but to let Mr. Rawson

proceed because of his injury in

violation of C.R.S. 8-2-116.

The Tenth Circuit may not eliminate

Mr. Rawson's common-law rights.

While it is rare for a district judge

to exercise his power to create new

rights at common-law, the Colorado

Supreme Court, with the very same powers

as District Judge John Kane, has not

hesitated to create new rights and

remedies. In fact, the Colorado Supreme

Court in the last fifteen years alone,

has recognized six new causes of action

under common-law. The most recent is

Travelers Ins. Co. v. Savio, 706

P.2d,1258 (Colo. 1985) (recognizing the

new tort of "bad faith by an insurer").

As Judge McKay so ably asserts; [A

common-law court's] further task, which

is grounded in conservative doctrine

antedating the founding of the State of

Colorado and even the nation, is to

expand and contract causes of action,

particularly those sounding essentially

im: TOCl. as wisdom and experience

dictate. That function is, indeed, the

majesty of the common law." (92a,93a)

WHY CERTIORARI SHOULD BE GRANTED

This court should grant certiorari:

Because a federal appeals court

may not abolish the Colorado common-law.

Thirty-seven states have similar

constitutional provisions quaranteeing

access to the court for known wrongs.

The citizens of these states neéd to know

whether such constitutional provisions

ights., Such an

them enforceab]

abolition of a state constitutionally

guaranteed right is a denial of Mr.

Rawson's Fifth Amendment, ie ge

Constitution, right not to be aeprived of

property without due process of law.

AAAs & $ ~? Des e 7 + & ~~ % te ° °

Addi tionaily, the split panel's decision

violates the Tenth Amendment, which

reserves matters of common-law to the

Further, because the split panel

decision is clearly in conflict with

Colorado Supreme Court law (Vogt and

Golaberg, supra.), it violates Mr.

S 14th Amendment richt to equal

rotection of the law.

Because the split panel's failure

to apply the "local judge rule" is in

conflict with the nine other federal

—

circuit courts, and the U. S. Supreme

Court, that do apply this rule. Bishop

v. Wood, 426 U.S.341, 346 (1976), and

Wren v. New Yor

F.2d.839, 841 (5th Cir. 1974) (70a-88a)

be oI

Because the split panel has so far

departed from the acceptable and usual

course of judicial proceedings as to call

for an exercise of power of this Court's

supervision. It's bad enough for the

Split panel to deny Mr. Rawson his

constitutional right of access to che

court, allowed by the trial judge, but

to break their own rules to do it, is

The unacceptable judicial proceedings

congistea of:

A. Failure and refusal to give the

Gistrict judge any deference, violating

clearly established precedent in the

Tenth Circuit ("local judge rule"). (70a-

88a)

5, Knowing that this split panel

would not be uSin

review (great deference to the trial

judge unless clearly erroneous),

incredibly and cruelly, the panel asked

r. Rawson whether he wanted the case

certified to the Colorado Supreme Court.

hey never told Mr. Rawson that they

great deference. (104a) This deprived Mr.

Rawson of the ability tomake acritical,

rational decision. (This is like

forgetting to tell your best friend, who

asked to borrow your car, that the brakes

don't work. Do you think he'd still want

to borrow the car?)

with a critical state law issue of first

impression. Despite Judge Kane's

detailed analysis and reasoned

determination of Colorado law, Per

despite the opinions of two other federal

judges; Judge Carrigan, a former Colorado

Supreme Court Justice, and Chief Judge

Finesilver confirming Judge Kane's

analysis, the majority held that Judge

Kane was entitled to no deference

whatsoever because of a subsequent one-

. | *} 2 . 7

page, unpublished order” issued by a

Fourth District court judge. But for

‘ ? Remarkably, six months before the

split panel's decision, authored by Judge

Anderson, he had voted with the majority

(5-3) in a hotly disputed rule adoption,

36.3, (p.13) prohibiting the citation or

use of unpublished opinions by any court

within the Tenth Cireuit. The €ictea

unpublished case here reversed the entire

case, including two jury verdicts and the

*iocal judge ruie,”

Ey Se ee

that three-sentence-long order. (107a)

Judge Kane's opinion would have been

reviewed under the "clearly erroneous"

Standard that has been enunciated and

applied repeatedly by the Tenth Circuit

Court. As it is, because of that

unpublished order which contained no

reasoning,“ analysis, Or even context, an

entirely new standard was applied to

reverse Judge Kane's detailed analysis

and decision,

Because of the enormity of this

verdict (nearly $24 million). In our

system of justice the size of verdicts

and judgments uSually reflects the

4. Weiss v. United States, 787 F.2d 518,

Dae eee Caigs, 1986), holding 10th

Circuit owes no deference to district

rt orders which fail to provide any

reasoning on state-law matters.

the severity of the injury and the nature

of wrongdoers conduct.

Alternatively, Mr. Rawson requests

that this Court certify this issue to the

Colorado Supreme Court.

Since even the majority agrees that

it is how the Colorado Supreme Court

would dec ide the issue that is

determinative. (29a) Doesn't Mr. Rawson

deserve, in the interest of justice, ea

deteimination by the state's highest

court? The unique circumstances of this

case require certification. Although the

U. S. Supreme Court normally. defers to

the Appellate Court's interpretation of

State law, it would be inappropriate here

because the Appellate Court did not defei

to the trial court's interpretation. The

law should be applied consistently.

Additionally, the issue of private right

is currently before the Colorado Court of

Appeals (Boccalatte v. Asamera Oil

—_— —_—

(U.S.), Inmc., Colo. Ct. of Appeals,

87CA0683 and Mr. Rawson should have the

benefit of this decision.

CONCLUSION

The split panel's personal distaste for

the multi-million dollar verdict awarded

to an “insignificant little citizen"

against one cf America's revered

corporations should not constitute a

sufficient basis to suspend the

application of long standing precedent

and ciear Colorado law. Such actions

amount to unwarranted judicial activism.

THERFFORE, this Court should grant

certiorari to review the split panel's

decision, or in the alternative, certify

the case to the Colorado Supreme Court.

. ;

Respectfully submittea, |

- ” ;

at J

, A i ~o aie .

\ ee ‘ Ae)

JIAMES A. CARLEO

4 THOMAS M. DeNIRO

Attorneys for Petitione:

620 S. Cascade, Suite 102

Colorado Springs, CO 80903

(302) 630-7883

Appendix A

822 F.2dad.909

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 85-1223, 85-2366

GARY RAWSON,

Plaintiff-Appellee,

Decided June 10, 1987

Rehearing Denied July 28, 1987

Appeal from the Uni S

} rict Court for the

District of Colorado

C.D.C. No. Civ. 81-K-1454

Judges, and BOHANON, District Judge.*

PHEN H. ANDERSON, Circuit Judge.

e T + - T } = C

* Honoral € Luther Le. Bonanon, Senior

- Tr 4 4 oO > = 7 >

JUQCde, Wistric t UO OKianoma.

_ , an « - f . - eZ c

Sears, ROECDUC! Cx ~-OMpa}l appeadai Ss

. — _ c + > - > v

I pt A A A € 4 a» C2 « ¢ I » \ « \ ‘ 4 ia i 7 & a ‘ sic

¢ = + e100 n< Ager +

relatin to a 19,096,495.01 judgment

e ‘ cr r marttrnr 2 mT} a al

al ag qgqiscrimination Case. ine Ction

< . + * Ca ‘ RPauc +

Wa. pDroug! L y Wa ry naw 5ONn, a TrOrmerl

Cc ' > - ’ ~ . }

- ¥ «7 : r 7. c ? > ry => t “~ TY

Sears’ employee and store manager, who!

Sears fired at age 59.

Rawson was employed by Sears for

t lirty-tnree years, pecoming manage: Ol

the Sears tore in Pueblo, Colorado, ir

1] ,6 5 , WI c . = Ti ¢ S € I ea ul! t l i 4 a -«

ermination he either failed or chose not

(the record does not disclose the reason)

pursuehis age discrimination clain

naer the federal antidiscrimination

Statute enactec for that purpose, Age

Discrimination in Employment Act of 1967,

9 U.S.C. Sections 621-634 (ADEA).

In July, 1981, twenty-eight months

ifter his termination and beyond the

Colorado state courts, stating eleven

Claims for relief, including several

. mmr li -< ’ a coc _ 4 ~~ 4 ,

COMI { hi law causes Oi action.

he Rawson alleged, for example,

utrageous conduct, breach of contract,

wrongful conduct and promissory estoppel.

Rawson has not appealed the dismissal of

those claims and the only issue on appeal

the existence of a right of action

cea |

All of those claims were ultimately dis-

missed except his claim based on an

implied private right of action under a

Colorado penal statute, Colo. Rev. Stat.

Sections 8-2-116 and 117 (1973).% Those

sections impose a fine from $100 to $250

upon employers who cischarge employees

1. Continued ...

under Colo. Rev. Stat. Sections 8-2-116

ana i117 (1973). This is at least a

partial answer to the dissent's

invitation for us to engage in some wide-

ranging search for a common law cause of

action to redress the wrong allegedly

suffered by Rawson.

* In his initial complaint, Rawson

alleged only a violation of section 8-2-

116 and thereby, implicitly, asserted

only an implied right of action. On

appeal, he vigorously argues that

sections 8-2-116 and 117, in conjunction

with sections . $-3-i068 (1) (1) and

8-3-121(1) of Colorado's Labor Peace

Act, Colo. Rev. Stat. Sections 8-3-

101 to 123 (1986), provide him with an

express right of action as well.

solely because of age.” Those provisions

had been the law in Colorado for seventy-

eight years prior to Rawson's suit

without any private action having been

brought under them. Shortly after

- Section 8-2-116 provides as

follows:

No person, firm, association,

corporation conducting

within this state any business

requiring the employment of

labor shall discharge any

individual between the ages of

eighteen and sixty years solely

and only upon the ground of

age,

if such individual is well

versed in the line of business

Carried on by such person,

firm, association, or

corporation and is qualified

physically, mentally, and by

training and experience to

Satisfacorily perform and does

Satisfactorily perform the

labor assigned to him or for

which he applies.

Section

8-2-117 subjects any person

who violates section 8-2-116 to a fine of

between $100 and $250.

Rawson's victory in this suit the

Colorado legislature repealed the

statutes in question, placing a similar

provision under the Colorado

Antidiscriminaiion Act (CAA), Colo. Kev.

Stat. Sections 24-34-401 to 406 (1982 &

Supp. 1986). Thus,this case and a few

which followed are the only ones

involving the propriety of private suits

under those state penal statutes. The

Colorado Supreme Court has never ruled on

the question, and both parties have

resisted certification. *

4, Before the liability phase of the

rial in this case, Sears requested that

the district court certify the question

of the existence of a private rightof

action to the Colorado Supreme Court.

Rawson opposed certification and the

district court declined to certify the

issue. In this ~-court, both parties have

opposed certification.

sears removed Rawson's suit from

tate to federal court on grounds of

eee

qaiver

ap)

of citizenship. On Sears'

Subsequent motion to dismiss for failure

to state a claim, the district court

held that "the Colorado legislature

intended to create a private right of

action under C.R.S. Section 8-2-116 and

that such a right of action is consistent

-y

}-—

~«*

+ 4

ative scheme in

labor relations," Rawson v. Sears

Roebuck & Co., 530 F. Supp. 776, 778 (D.

Coie. 2962). It also denied, ina

published opinion, Sears' later motion

for summary judgment. Rawson v. Sears

Roebuck & Co., 554 F. Supp. 327 (D. Colo.

rials were held on

tne questions of liability and damage,

the outcome of both trials being

favorable to Rawson. Following the trial

on liability, in a third published

opinion, the district court held again

that private damage awards were proper

under section 8-2-116. Rawson v. Sears

Roebuck & Co., 585 F. Supp. 1393 (D.

Colo. 1984). It then awarded Rawson

costs amounting to $11,096.54. At the

conclusion of the damages trial the jury

awarded Rawson: $580,500 for lost wages

ana benefits; $264,410 for future wages

and benefits and a reduction in the value

of his pension benefits; $5,000,000 for

pain, suffering and humiliation; and

$10,000,000 in punitive damages. Sears'

motions for judgment n.o.v., new trial,

Or remittitur were denied. 615 F.Supp.

1546. Judgment entered on the jury

verdict included prejudgment interest in

the amount of $3,251,585.01, for a total

judgment of $19,096,495.01.

On appeal Sears asserts multiple

assignments of error in the proceedings

below. Two threshold issues, which we

find dispositive of this appeal, are

whether there is an express or an implied

private right of action under the

Colorado penal statute in question,

sections 8-2-116 and 117, either alone or

in combination with sections 8-3-

108(1)(1) and 8-3-121(1) of Colorado's

Labor Peace Act. Because we find that

the statutes in question provide Rawson

with neither an express right of action

nor an implied private right of action,

we find it unnecessary to address the

other issues raised in this appeal, and

we reverse the judgment below.

10a

INTRODUCTION

At the outset we note that our task

here is to interpret and apply the lawof

Colorado as we believe the Colorado

Supreme Court would. City of Aurora v.

Bechtel Corp., 599 F.2d 382, 386 (10th

Cir. 1979); Symons v. Mueller Co., 493

F.2d 972 (10th Cir. 1974). Peiee 2 cee

Gistrict court decision in this case, no

Colorado court or federal court applying

Colorado law had addressed the particular

question of whether a private right of

action exists under section 8-2-116 for

age discrimination. Since that decision,

federal district courts in Colorado and

lower Colorado state courts have reached

conflicting conclusions on that issue.

Compare Spulak v. K-Mart Corp., No. 85-F-

2062 iD, Colo. Nov. ai, 1933)

(Finesilver, J.); Grandchamp v. United

lia

Air Lines, Inc., 36 Empl. Prac. Dec.

(CCH) paragraph 34,987 (D. Colo. Jan. L5,

1985) (Carrigan, J.); and Marks v. Cobe

Laboratories, No. 85-CV-2726 (Jefferson

Mawes Ct. COLO. Nov. 12, 1985) (all

following Rawson and finding that a

private right of action exists) with

aeyveor V. K-Mart Corp.,---F.Supp.---, No.

So-m~2336 ims SOLO, Jan. 13, 19866)

(Matsch, J.); Boccalatte v. Asamera Oil

(U.S.) Inc., No. 86-CV-6283 (Denver Dist.

Ct. Colo. Jan. 11, 1987); Sandro v. ICM

Mortgage Corp., No. 86-CV-6 (Arapahoe

Daees Goe COLO. July 1, 1986) and Laird

v. Montgomery Ward, Inc., No. 85-CV-5569

ivewen DASt. Ct. Colo. Apr. 18, 1986)

(finding that no private right of action

exists).>

oe We note that unreported or

unpublished state trial court decisions

12a

In endeavoring to ascertain the

proper construction of state law where

no authoritative state court decision

exists, we acknowledge that "[tjhe views

of e resident federal district juage

concerning the local law of his home

state are entitled to some defere: ce by @

appellate court." Corbitt v. Anaerson,

778 F.2d 1471, 1475 (10th Cir. 1985); see

also Inryco, Inc. v. CGR Bldg. Systems,

—E,

5. Continued...

are not binding on a federal court

applying state law ina diversity case

nor necessarily indicative of how the

state's highest court will resolve an

issue of state law. See State Farm Mut.

Auto Ins. Co. v. Travelers Indem. CO.,

433 F.2d 311 (10th Cir. 1970)? see also

Guinand v. Atlantic Richfield Co., 485

F.2d 414 (10th Cir. 1973). Nonetheless,

we cite the various state court decisions

concerning section 8-2-116 to indicate

the .aegree of uncertainty and

Gisagreement among the courts which have

aadressed the existence of a private

right of action under section 8-2-116.

13a

Inc., 780 F.2d 879, 881 (10th Cir. 1986);

Polin v. Dun & Bradstreet, Inc., 768 F.2d

1204, 1207 (10th Cir. 1985); An-Son Corp.

v. Holland-America Ins. Co., 767 F.2d

700, 704 (10th Cir. 1985); Business

Interiors, inc. v. Aetna Casualty &

Surety Co., 751 F.2d 361, 363 (10th Cir.

1984). However, “it is inappropriate to

defer to the district court's views"

where “another resident district court

judge has expressed views contrary to

those expressed by the trial court" in

the case under review. Maughan v. SW

Servicing, Inc., 758 F.2d 1381, 1384 n.2

(10th Cir. 1985) (McKay, J.); McGehee v.

Farmers Ins. Co., 734 F.2d 1422 (10th

Cir. 1984) (rule of deference to local

federal district judge's interpretation

not applied where contrary view expressed

by another resident federal district

14a

judge). As indicated by the cases cited

earlier, federal district judges in

Colorado disagree on the question of

Colorado law before us. Because of that,

ana other facts unique to this case, ° we

are not confronted with any issue of

deference to the disrict court's

interpretation of Colorado law./

6. At the time of the district court's

ruling in this case no Colorado state

court had addressed the legal question

before us. Thus, the district court did

not have the benefit of even lower state

court interpretatons. Since the ruling

in this case there have been a number of

lower Colorado state court decisions on

the subject, the majority opposing the

interpretation under review. As we

indicated in Stafos v. Jarvis, 477 F.2d

369, 372-73 (10th Cir.), cert. denied,

414 U.S. 944, 94 S.Ct. 230, 38 L.Ed.2d

168 (1973), less deference is afforded

the district court's view when the court

of appeals is aided in its consideration

by state court decisions. Furthermore,

as the text of this opinion shows, there

is adequate authority from Colorado state

courts to guide our deliberations in this

case.

te The existence of widespread

15a

7o Coptinued . « « :

disagreement among lower Colorado state

courts and federal district courts in

Colorado makes this case a wholly

inappropriate vehicle for testing the

"local judge" rule, as the dissent wishes

to do. The dissent indulges itself by

citing seventy-two cases to establish the

existence of that rule, but makes no

effort to describe established

exceptions. Not one of the cited cases

involves a fact situation, similar to

that in the instant case, where differing

conclusions on a point of state law have

been reached by resident federal district

judges in the same state, and lower state

courts have issued an array of decisions

subsequent to the federal court decision.

See infra note 14. Notably missing from

the seventy-two cited cases is the

dissenting judge's opinion, speaking for

this circuit, to the effect that

deference is inappropriate where local

district judges differ. Maughan v. Sw

Servicing Inc., 758 F.2d at 1384 n.2.

See also Catts Co. v. Gulf Ins. Co., 723

F.2d 1494 (10th Cir. 1983) (McKay, J.,

dissenting).

In sum, we are not abandoning any

firmly established circuitwide rule.

Rather, we are simply fulfilling our

appropriate appellate function in this

case. Indeed, we are following the

exhortation of our dissenting brother to

avoid making "this court's determination

of legal issues in diversity cases little

more than a will-o'-the-wisp." Catts Co.

v. Gulf Ins. Co., 723 F.2d 1494, 1504

(1983) (McKay, J., dissenting).

16a

We must, therefore, make our own

independent inquiry into the proper

interpretaton of state law, taking due

note of the relevant state court and

federal district court decisions. See,

e.g., Big River Grain, Inc. v. SBA, 718

F.2d 968 (9th Cir. 1983); Luke ve.

American Family Mut. Ins. Co., 476 F.2d

1015 (8th Cir. 1972), cert. denied, 414

U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105

(1973); Ward v. Hobart Mfg. Co., 450 F.2d

1176 (Sth Cir. 1971); Mutual of Omaha

Ins. Co. v. Russel, 402 F.2d 339 (10th

Cir. 1968), cert. denied 394 U.S. 973, 89

S.Ct. 1456, 22 L.Ed.2d 753 (1969). In so

doing, we “may look to all resources,

including decisions of ot.ier states, as

well as Colorado and federal decisions,

and to the general weight and trend of

authority." City of Aurora v. Bechtel

17a

Corp., 599 F.2d 382, 386 (10th Cir.

1979); see also Burgert v. Tietjens, 499

F.2d 1 (10th Cir. 1974).

With that standard of review in

mind, we turn now to an examination of

Rawson's arguments that there is either

an express Or an implied private right of

action under sections 8-2-116 and 117.

Le EXPRESS RIGHT OF ACTION

Rawson argues that, collectively,

sections 8-2-116 and 8-2-117 of the 1903

Labor Relations Act and Sections 8-3-108

and 8-3-121 of the 1943 Labor Peace Act

create an express right of action for age

discrimination.® He claims that the

8. Section 8-3-121 (1) provides:

Any person who suffers injury because of

an unfair labor practice has a right of

action, jointly and severally, against

all persons participating in said

practice for damages caused to the

18a

language anc history of both Acts and the

fact that they occupy successive chapters

in the same statutory title support his

argument. We find his argument

unpersuasSive. The fact that the two Acts

were enacted forty years apart is not

alone dispositive; however, absent some

clearer indication by the legislature of

ar intent to link the two Acts, we are

reluctant to view the latter one as

implicitly incorporating any provisions

of the earlier one. Cf. Sterling v.

8. Continued...

injured person thereby. Section 8-3-108

(1)(1) defines an unfair labor practice

to include the commission of "any crime

or misdemeanor in connection with any

controversy as to employment relations"

(emhasis added). Thus, Rawson argues

that the violation of section 8-2-116

constitutes the commission of a crime or

misdemeanor and, therefore, amounts to an

"unfair labor practice" which is subject

to an express right of action under

sections 8-3-108 and 121.

19a

Industrial Comm'n, 662 P.2d 1096 (Colo.

App. 1982).?

In addition, from our review of the

provisons of the Labor Peace Act and

those Colorado cases discussing and

interpreting it, we find no evidence that

the Colorado legislature intended that

Act to extend beyond union-related

employer-employee disputes.

9. Rawson argues that the incorporation

into section 8-3-108 (1)(k) of the Labor

Peace Act of the "blacklist" utilizd in

the Labor Relations Act indicates that

the two Acts should be read together and

complement each other. We agree with

Sears that such incorporation of the

definition of a blacklist is more indica=

tive of the legislature's intent not to

incorporate violations of section 8-2-116

within the ambit of unfair labor prac-

tices than of an intent to link the two

Acts together. See Transamerica Mortgage

Advisors, Inc. v. Lewis, 444 U.S. 11 100

S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche

Ross & Co. v. Redington, 442 U.S. 560 99

S.Ct. 24°79, 61 L.Ed.2d 82 (1979); Public

Serv. Co. v. Federal Energy Regulatory

Comm'n, 754 F.2d 1555 (10th Cif. 13E35),

cert. denied, 106 S. Ct. 849 (1986).

20a

As Sears points out, in defining "labor

dispute" in section 8-3-104(13)(b), the

Act specifically states:

The general right of an

employer to select his own

employees is recognized and

shall be fully protected. It

shall not constitute a labor

dispute if an employer

discharges or refuses to employ

an employee on account of

incompetence, neglect of work,

unsatisfactory service, or

Gistconesty; but the discharge

of an employee or the refusal

to employ an employee shall

constitute a labor dispute only

when such discharge or refusal

to employ is founded upon

membership in a union or labor

organization or activity

therein or when such discharge

or failure to employ is in

violation of a contract.

Id. (emphasis added). In contrast,

Rawson argues that the Act extends to

diemissals cf employees on the basis of

age. He relies on the phrase "auy crime

or misdemeanor jin connection with any

controversy as to employment relations"

21a

in section 8-3-108(1)(1) es. evidence that

the Labor Peace Act is interested in more

than merely “labor disputes." Viewing

the statutory scheme as a whole, however,

we do not find the difference between

"labor dispute" and "employment

relations" indicative that sections 8-3-

108 and 8-3-121 confer a right of action

On persons alleging @ violation of sec-

tion 8-2-116. As Sears has also pointed

out, the very name of the Act provides

some guidance as to its intended scope.

See U.M. v. District Ct., County of

Lorimer, 631 P.2d 165 (Colo. 1981);

Conrad v. City of Thornton, 191 Colo, 44,

553 P.20 822 (1976): Blanchard 4

Furthermore, except for the lower

22a

court decision in this case, we can find

no reported Colorado decision which has

applied the Labor Peace Act and its

express right of action to any context

outside of union-related activities or

disputes. See, e.g., Pipeliners Local

Union No. 798 v. Ellerd, 503 F.2d 1193

Trades Council v. Shore, 132 Colo. 187,

87 28. - 267 (1955): Bennett's

Restaurant, Inc. v. Industrial Comm'n,

127 Cole. 281, 256 F.2d 891 (1953). In

Bennett's Restaurant, the Colorado

Supreme Court suggested that the Act as a

whole is to be construed consistent with

the view expressed in #eection 8-3-

104(13) (b) when the court stated:

*'The act does not

interfere with the normal

exercise of the right of the

employer to select its

employees or to discharge then.

23a

The employer may not, under

cover of that right, intimidate

Or coerce its employees with

respect to their self-organiza-

tion and representation, and P

on the other hand, the Board is

not entitled to make its

authority a pretext for inter-

ference with the right of dis-

charge when that right is

exercised for other reasons

than such intimidation and

coercion. The tru purpose is

the ~subject of investigation

with full Opportunity to show

the facts."

256 P.2d at 894 (quoting NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 45, $7

S.Ct. 615, 628, 81 L.Ed. 893 (1937)).

We, therefore, are unwilling to extend

the provisions of the Labor Peace Act to

Situtations which do not involve union-

related activities,19

10. Finally, Rawson's alleged express

right of action depends upon the

commission of a "crime or midemeanor in

connection with any controversy as to

employment relations." Section 18-1-402

of Colorado's Criminal Code requires that

the commission of any "offense" be proved

24a

10. Continued...

beyond a reasonable doubt. Colo. Rev.

Stat. Section 18-1-402 (1986). Here,

there has been no prosecution of Sears

and, a fortiori, no proof beyond a

reasonable doubt that Sears committed any

crime or misdemeanor. Rather, Rawson

seeks here to show 2 violation of section

8-2-116 for the first time. The district

court noted this problem when it stated

that it:

of course cannot determine

whether the defendant has

criminally violated C.R.S.

Section 8-2-116. However, the

Colorado legislature's broad

definition of unfair labor

practices indicates an intent

to create a private right of

action to anyone who can prove

by a preponderance of the

evidence that a defendant has

violated a criminal labor

statute.

Rawson, 530 F. Supp. 776, 778 (emphasis

added). We do not believe that, for the

purpose of an express right of action,

the definition of unfair labor practices

intends to abrogate the usual standard of

proof for a Criminal charge such as 4

criminal violaton of section 8-2-116.

Rather, we view the reference to the

commission of any crime or misdemeanor to

require the usual showing, as specified

in section 18-1-402, of proof beyond a

reasonable doubt. While the “pre-

ponderance of the evidence" stands d may

25a

For the foregoing reasons, we fina

that Rawson has no express right of

action for age discrimination under the

Statutes upon which he relies. We turn,

therefore, to a consideration of whether

an implied private right of action exists

for age discrimination under section 8-

2-116.

be IMPLIED PRIVATE RIGHT OF ACTION

Rawson argues that the Colorado

courts would imply a private right of

action under section 8-2-116 under common

law Seraniet on and asks us to affirm the

district court's holding to that effect.

a0, CoOmtinued ...

be appropriate for a private right of

action implied under a statutory scheme,

we are unwilling to endorse the in-

corporation of that standard in an

express private right of action which

depends upon the existence of a criminal

violation.

26a

We first examine the district court's

ratoinale for concluding that a private

right of action exists.

A. District Court's Analysis.

The district court, citing Touche

Ross & Co. v. Redington, 442 U.S. 560, 99

s.ct. 2479, 61 b.84€.24 862 (19739),

observed that the implication of a

private right of action "is a question of

Statutory construction." Rawson, 530 F.

Supp. at 777. It then applied the four-

part test established by the Supreme

Court in Cort v. Ash, 422 U.S. 66, 95

S.Ct. 2080, 45 L.Ed.2d 26 (1975),++ for

determining the existence of an implied

right of action under a federal statute.

Lia In Cort, the Court considered the

following factors:

First, is the plaintiff “one of the class

for whose especial benefit the statute

was enacted," Texas & Pacific R. Co. v.

27a

11. Continued ...

Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482,

484, 60 L.Ed. 874 (1916) (emphasis sup-

plied)-- that is, does the statute create

a federal right in favor of the

plaintiff? Second, is there any indica-

tion of legislative intent, explicit or

implicit, either to create such a remedy

Or to deny one? See, e.g., National

Railroad Passenger Corp. ve. National

Assn. Of Railroad Passengers, 414 U.S.

453, 458, 460, 94 S.Ct. 690, 693, 694,

38 L.Ed.2d 646 (1974) (Amtrak). Third, is

it consistant with the underlying pur-

poses of the legislative scheme to

imply such a remedy for the plaintiff?

See, e.g., Amtrak, Supra; Securities

Investor Protection Corp. Vv. Barbour,

421 U.S. 412, 423, 95 §.Ct. 1733,

1740, 44 L.Ed.2d 263 (1975); Calhoun v.

Harvey, 379 U.S. 134, 85 S.Ct. 292, 13

L.Ed.2d 190 (1964). And finally, is the

cause of action one traditionally

relegated to state law, inan area basic-

ally the concern of the States, so that

it would be inappropriate to infer a

cause of action based soley on federal

law? See Wheeldin v. Wheeler, 373 U.S.

647, 652, 835 8.Ct. 144i, 1445-6, 10

L.Ed.2d 605 (1963); cf. J.I. Case Co. Vv.

Borak, 377 U.S. 426, 434, 84 S.Ct. aoe Dy

1560-61, 12 L.Ed.2d 423 (1964); Bivens Vv.

Six Unknown Federai Narcotics Agents, 403

U.S. 388, 394-5 91 S.Ct. 1999, 2003-05,

29 L.Ed.2d 619 (1971); id., at 400, 91

S.Ct. at 2006-07 (Harlan, J., concurring

in judgement).

422 0.8. at 78, $5 S.Ct. at 2087-88

(emphasis original).

28a

The district court observed that "[bJe-

cause the present case involves a

Colorado statute, the U.S. Supreme

Court’s analysis is not

controlling; however, in the apsence of

any contrary word from the Colorado

Supreme Court, the Cort test provides

useful guidance." Rawson, 530 F. Supp.

at 778. The district court concluded

that "the first three elements of the

Cort test are satisfied here." Id. The

court found that section 8-2-116

"especially singles out employees between

the ages of 18 and 60 who have been

discharged solely because of their age."

Id. The court then found the second part

of the Cort test was met because “other

statutes [sections 8-3-121(1) and

108(1)(1)] indicate that the Colorado

Legislature intended to create a private

29a

right of action here." Id. Finally, the

court concluded that the third part of

the Cort test was satisfied because “such

a right of action is consistent with the

state's legislative scheme in labor

relations." 1a.}2 The district court

distinguished three Colorado Supreme

Court cases sited by Sears, Quintano v.

Industrial Comm'n, 178 Colo. 131, 495

P.2d 1137 (1972), Gladden v. Guyer, 162

Colo. 451, 426 P.2d 953 (1967), Colorado

Cent. R.R. CO. v. Humphrey, 16 Colo. 34,

26 P. 165 (1891), as "“inapposite."

We will examine Colorado law and,

like the district court, draw "useful

guidance" from the Supreme Court's case

law concerning implied rights of action

12. The district court correctly found

the fourth part of the Cort test

inapplicable to this case.

30a

in reaching our couclusion as to the

proper interpretaton of Colorado law.

B. Colorado Law on Implied Rights

of Action.

As we have indicated, prior to the

lower court decision in this case no

Colorado court had addressed the question

of whether an implied right of action

exists for age discrimination under

section g-2-116.23 The few decisions

subsequent to the lower court case have

provided little detailed analysis or

explanation of court holdings concerning

the existence or nonexistence of such an

implied-right of action. Thus, we must

L3e Both parties agree that the

legislative history of section 8-2-116,

first enacted in 1903, sheds no light

upon the question of the existence of a

right of action under the statue.

14. In Boccallate v. Asamera Oil (U.S.)

Inc. No. 86-CV-6283 (Denver Dist. Ct.

31a

14. Continued ...

Colo. Jan. 11, 1987), the state court

found that "there is a private right of

action for damages for violations of

C.R.S. Secton 8-2-116." In so holding,

it noted the Rawson decision,as well as

the decisions in Grandchamp v. United

Air Lines, Inc., 36 Empl.Prac. Dec. (CCH)

paragraph 34,987 (D. Colo. Jan. 16, 1985)

and Spulak v. K-Mart Corp., No. 85-F-2062

(D. Colo. Nov. 12, 1985), but rejected

the reasoning of those cases and relied,

instead, on Silverstein and the action

of the Colorado legislature in repealing

sectons 8-2-116 and 117 and incorporating

age discrimination within the CAA.

Similarly, in Sandro v. ICM Mortgage

Corp. No. 86-CV-6 (Arapahoe Dist. Ct.

Colo. July 1, 1986), the state court

stated that it agreed with the defendant

that "no private cause of acton is

provided for a violation of Secton 8-2-

116 C.R.S. ... relying on the reasoning

of Silverstein v. Sisters of Charity, 38

Colo. App. 286, 559 P.2d 716 (1976).

The state court in Laird v. Montgomery

Ward, No. 85-CV-5569 (Denver Dist. Ct.

Colo. April 23, 1986) likewise concluded

that “(t]he legislature, however, did not

specifically adopt a civil cause of

action (as they could have and did in

C.R.S. 8-2-108(2)) under this statute.

It provided for a fine as its only

sanction. Therefore,the Court does not

have the authority to impose civil

liability." By contrast, in Marks v.

Cobe Laboratories, No. 85-CV-2726

(Jefferson Dist. Ct. Colo. Nov. i

1985), the state court specifically

32a

14. Continued...

exists.

The federal district courts have

been similarly divided. In Brezinski v.

F.W. Woolworth Co., 626 F. Supp. 240 (D.

Colo. 1986) and in Brenimer v. Great

Western Sugar Co., 567 F. Supp. 218 (D.

Colo. 1983), Judge Kane followed his own

view in Rawson and reiterated that a

private right of action exists under

section 8-2-116. In both Spulak and

Grandchamp, the district court employed

the same reasoning as in Rawson. By

contrast, the district court in Taylor v.

K-Mart Corp., No. 85-M-2336 (D. Colo.

Jan. 13, 1986) concluded that "there is

no private right of action for 4

violation of C.R.S. Section 8-2-116."

Similarly, the district court in Glover

v. United Air Lines, Inc., No. 86-M-323

(D. Colo. June 24, 1986) dismissed the

plaintiff's second claim stating

"contrary to the view expressed in Rawson

v. Sears Roebuck & Co., 530 F. Supp. 776

(D. Colo. 1982), and contrary to Marks ve

Cobe Laboratories, No. 85-CV-2726

Colorado) the Colorado s-atute in effect

at the time of the operative facts in

this case did not provide for a private

right of action under C.R.S. 8-2-116, ana

the court being also of the view that the

recent repeal of that statute and

enactment of specific age

discrimination tute supports this

conclusion."

33a

make Our own inquiry into Colorado law to

determine the appropriate resoluti@m of

this issue.

We have found numerous Colorado

cases which have expressed a general

14. Continued...

In Silver v. St. Luke's Hosp., Inc.,

No. 84-M-2046 (D. Colo. May 3, 1985). the

Gistrict court simply stated that, on the

question of the existence of a private

right of action under section 8-2-116,

"[t]he state law is unsettled and should

not be addressed in this case." In

Borumka v. Rocky Mountain Hosp., 599 F.

Supp. 857, 8535. (DB. Colo. 1964), the

district court noted the Rawson decision

but, because the "Colorado courts have

not had the occasion to address the

issue," the court declined to exercise

pendent jurisdiction over the claims

based on section 8-2-116; accord, Hensman

v. Adams County Dep't. of Social Servs.,

623 F. Supp. 96 (D. Colo. 1985); DiRito

v. Ideal Basic Indus., Inc. 617 F. Supp.

79 (D, Colo. 1985). Finally, in Bouts v.

United Air Lines, Inc., No. 83-F-1329 (D.

Colo. Sept. 18, 1984), the district court

denied the defendant's motion to dismiss

or for summary judgment without prejudice

as to the plaintiff's claim under section

8-2-116, without any explanation

therefor.

34a

unwillingness to expand upon statutory

remedies specifically provided ina

statutory scheme. Sears relies in

particular upon Silverstein v. Sisters of

Charity, 38 Colo. App. 286, 559 P.2d 716

(1976). There, the plaintiff, a

physically disabled person, sued two

health care corporations on the ground

that they discriminated against her in

violation of Colo. Rev. Stat. Section 24-

34-801(1)(b) (1973) when they refused to

hire her as a respiratory therapist.

Section 24-34-801 did not expressly

provide for civil actions for

compensatory or exemplary damages.

Furthermore, there was a Criminal penalty

for a violation of section 24-34-801

rendering such a violaton a misdemeancr.

Nonetheless, the plaintiff argued that a

private right of action should be

35a

implied. The Colorado Court of Appeals

disagreed. In so doing, it stated:

The relevant portions of that

Statute confer new rights and

duties unknown at common law,

and provide criminal penalties

for violations thereof. Where

a statute creates legal duties

and provides a particular means

for their enforcement, the

designated remedy excludes all

others. Colorado Cent. R. Co.

v. Humphreys, 16 Colo. 34, 26

P. 165 (1981). See also Board

of County Commissioners v. HAD

Enterprises, Inc., 35 Colo.

App. 162, 533 P.2d 45 (1974).

Here, there is no question but

that the legislature could have

authorized civil penalties for

violation of the act.

[citations omitted]. However,

it chose to impose only a

Criminal sanction. Therefore,

we have no authority to impose

Civil liability. Quintano v.

industrial Commission, 178

Colo. 131, 495 P.2dad 1137

(1972). see also Swenson v.

LaShell, 118 Colo. 333, 195

P.2d 385 (1948).

959 P.2d at 718. The court also rejected

the plaintiff's argument that the

inadequacy of the specified criminal

36a

penalty indicated that an implied civil

remedy was appropriate. "However, the

legislature sought to deter such

discrimination by making violation of the

Statute a misdemeanor; thus, we cannot

disturb its apparent determination that

the criminal penalty provided is an

adequate remedy." t4,*°

The Court of Appeals in Silverstein

also indicated that its reluctance to

expand upon specified statutory remedies

extended even to "legislation designed to

benefit particular individuals or

15. In Cort v. Ash, the Supreme Court

stated that the "provision of a criminal

penalty does not necessarily preclude

implication of a private cause of action

for damages." 422 U.S. at 79, 95 S.Ct.

at 2088 (emphasis original). Nonethe-

less, as we discuss further infra, the

Supreme Court has made clear that when

implying remedies under federal statutes,

legislative intent is the touchstone, not

necessarily the existence or nonexistence

of a criminal penalty.

37a

Industrial Comm'n, 178 Colo. 131, 495

P.2d 1137 (1972), the Court of Appeals

cautioned "in the area of remedies in

furtherance of legislative purposes the

courts should proceed with great Caution,

leaving determination of the appropriate

means of enforcement to the legislature."

Id. at 718-19. Quintano involved the

question of whether the Colorado

Industrial Commission or any of its

individual members could be liable under

Colo. Rev. Stat. Section 80-2-1 (1963) in

an action for damages the plaintiff

allegedly suffered when a machine

malfunctioned, Section 80-2-1 provides,

in pertinent part:

The industrial commission of

Colorado shall be charged with

the inspection of all]

factories, mills, workshops . .

38a

_»« OF eny Bie pee an

establishment wherein laborers

are employed or machinery used,

for the purpose of protecting

said employees or guests

against damages arising from |

imperfect or dangerous

machinery .. .

id. The Colorado Supreme Court affirmed

the Court of Appeals' dismissal of the

complaint against the Commission "on the

basis of sovereign immunity," and against

the individual Commission members,

stating that:

If the General Assembly has the

intent that employees and

guests may use this statute as

the basis for civil liability,

then its expression of this

intent should be loud and

clear, i.e., by authorizing the _

remedy.

495 P.2d at 1139./°

6 The district court in this case

distinguished Quintano, stating:

39a

16. Comtinued ...

‘Tine CGurt held that it

generally would not find an

implied right of private civil

action against a state agency

in a new statute, because of

tne problems of sovereign

immunity.

72 ££. SUD. at 778 n.3. We do not.

completely agree with the district

court's analysis of Quintano. After

noting that the statute at issue in that

case "specifically designates the classes

of individuals for whose benefit it is

intended," the court in Quintano stated

that it affirmed the dismissal of the

compiaint against the individual

commissioners “by reason of the

philosophy of this court as expressed in

Evans iv. Board of County Comm'rs, 482

Pawe wee (COlO,. i971) in which] ...

[w]e said in effect that there are

certain fields, such as sovereign

immunity, in which the courts should

leave establishment of substantive law to

the legislative branch. We have the same

view as to the matter under considera-

fiom." 495 P.2d at 1139 (emphasis

added). Thus, we read the Colorado

Supreme Court's language in Quintano more

broadly that did the district court here.

The court was not simply effirming the

dismissal of the complaint because of

sovereign immunity considerations;

rather, its language evidenced a broader

concern about judicial implication of

liability under statutes where the legis-

lature has not explicitly so provided.

40a

Other cases in Colorado express the

same general philosopy. See Board of

Comm'rs v. Pfeifer, 190 Colo. 275, 546

P.2d 946, 949 (1976) ("in this case the

legislature has Clearly anda expressly

established the remedies available to the

Board in order to enforce its Subdivision

requirement, and they are so limited.");

Gladden v. Guyer, 162 Colo. 451, 426 P.2d

FSS 957 (1967) ("It -is for the

legislature and not the judiciary to

determine the penalty for violation of a

Statute. [citation omitted]. The

penalty provided by the legislature for

[violation of the Statute] is a fine...

. - Or imprisonment © « ef OY both. To

declare void a contract entered into

without such certificate las the statute

required] would be enlarging upon the

4la

penalties provided by the legislature.");

17 american Television & Communications

Corp. v. Manning, 651 P.2d 440, 447

(Colo. App. 1982) ("where a statute

creates legal duties which were

nonexistent at common law and provides a

& re The district court in Rawson also

found Gladden “inapposite" because:

the court held that a party's

violation of a public cattle-

testing statute did not voida

contract it entered into, but

only made it voidabie. The

court's decision therefore

implies that the other party

could exercise a right stemming

from the statute to void the

contract if so desired.

530 Ff. Supp. at 778 a3. We disagree

also with the district court's narrow

interpretation of Gladden. The court in

Gladden stated it would not declare the

contract at issue void, but "{a]t most.

- . merely voidable." 426 P.2d at 95/7.

We do not believe that the court's

opinion evidences a willingness to imply

Civil damages liability for the violation

of a statute which does not so provide.

42a

particular means for their enforcement,

the designated remedy is exclusive, and

courts should not imply new remedies to

accompany the new right in the absence of

some legislative indication or other

Circumstances that such a result was

intended."); Hargreaves v. Skrbina, 635

P.2d 221, 227 (Colo. App. 1981) ("since

no specific legislative authorization fo1

attorneys' fees appears in the Longmont

Ordinance . .. an award of attorneys'

fees would be improper. See

Silverstein."), aff'd in part, rev'd i

part, 662 P.2d 1078 (Colo. 1983); Board

County Comm'rs v. HAD Enterprises,

1 35 COlO.« App. 162, 533 P.2d 45, 46

(1974) ("(the statute at issue} provides

that one who violates the terms thereof

Shall be guilty of a misdemeanor and may

be subject to a fine and imprisonment.

43a

These provisions are the sole remedies

under the act .. . . {W]here the

legislature has not seen fit to

authorize a particular remedy in a

Statute, we cannot supply one."); Farmers

Group, Inc. v. Trimble, 658 P.2d 1370,

1378 (Colo. App. 1982) ("The General

Assembly could have added the remedy of

a private civil action for damages to its

Catalog of sanctions. It did not do so,

however, and in the absence of any

indicaton of contrary legislative intent,

we must assume that the specific remedies

designated by the General Assembly

exclude all others."), ff'd on other

grounds, 691 P.2d 1138 (Colo. 1984).

One of the more thorough discussions

of Colorado law concerning implied rights

_£anmntrina £ « eo é . .

OF aCtion 18 CONtCa2iIinNed in AO

which

44a

the court stated:

Colorado has accepted the

guidelines set down by the

United States Supreme Court in

Cort v. Ash, 422 U.S. 66 [95

S.Ct. 2080, 45 L.Ed.2d 26] ..

. (1975) as useful for

determining whether a statute

impliedly authorizes a private

cause of action. Cloverleaf

Kennel Club, Inc. v. Colorado

Racing Commission, 620 P.2d 105

(Colo. 1980). There are three

factors which determine whether

a private remedy is implicit in

a statute which does not

expressly authorize such a

remedy. They are (1) whether

the plaintiff is within the

Class for whose benefit the

statute was enacted, (2)

whether the legislature has

explicitly or implicitly

intended to create a private

remedy, and (3) whether an

implied private remedy would be

consistent with the purposes

of legislative scheme. Cort v.

Ash, Supra.

The focus of the inquiry

is whether the legislature

intendéd to create private

cause of action Touche Ross &

Co. v. Redington, 442 U.S. 560

[99 S.Ct. 2479, 61 L.Ed.2d 82]

o «© »& (A979) « If the statute

45a

expressly provides a remedy,

courts must be chary of reading

others into it. Transamerica

Mortgage Advisors, Inc. ve

Lewis, 444 U.S. 11 [100 S.Ct.

24a, 62 tsBGs2G 246} « «-«

(1979). In the absence of

strong indicia of legisative

intent to the contrary, courts

are compelled to conclude that

the legislature provided

precisely the remedies it con-

sidered appropriate. Middlesex

County Sewerage Authority v.

Sea Clammers, 453 U.S. 1 [101

S.Ct. 2615, 69 L.Ed.2d 435] ..

- (1981).

Applying these principles

here, we note that Section 12-

61-103 (2) does not contain

language indicating a

legislative intent to authorize

private remedies for its

violation. The statutory

scheme authorizes the

Commission to enforce

compliance with the provisions

and to discipline non-

compliance ... . Where a

statute creates legal duties

and provides a particular means

of enforcement, the designated

remedy is exclusive and courts

are without authority to impose

others. Silverstein v. Sisters

of Charity, 38 Colo. App. 286,

559 P.2d 716 (1976). We find

no “loud and clear” expression

46a

of legislative intent

authorizing a private remedy

for violations of Section 12-

61-103(2) and Commission Rules

C-4 through C-7. See Quintano

ve. Industrial Commission, 178

Colo. 131, 495 P.2d 1137

(1972). And in light of the

enforcement procedures provided

in the statutory scheme,

coupied with lack of

legislative intent authorizing

a private cause of action, we

must refrain from inferring

one.

Colo. 1982) (in finding that the

applicable Colorado statute

limitations was not tolled, the distri

court stated that its holding was

keeping with the general hesitancy of

courts to judicially except cases f

applicable limitations statutes and is

a piece with the Colorado court's gener

approach to the problem of ‘jJudic

ial

47a

10n.°* id. at 892-93

(footnotes

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48a

Colorado law similarly. In Gammill v.

U.S., 727 F.2d 950 (10th Cir. 1984), this

court affirmed a district court decision

that the plaintiffs could not maintain

their action under the Federal Tort

Claims Act, 28 U.S.C. Section 1346 (b)

(1982). The plaintiffs had contracted

hepatitis allegedly because a Civilian

Physician employed at a Military

installation failed to notify the public

health authorities of infectious

hepatitis ina family with whom the

Plaintiffs had Con tace, thereby

preventing the plaintiffs from receiving

effective inoculations. Such failure to

notify violated Colo. Rev. Stat. Section

25-1-649 (1982),48 a Department of the

18. Section 25-1-649 provides as

follows:

49a

Army Regulation, and regulations at the

military base concerning communicable

diseases, This court agreed with the

district court that the United States

could not be held liable for a violation

18. Continued ...

When any physician knows that

any person whom he is calledto

visit or who is brought to him

for examination is infected

with smallpox, cholera,

diphtheria, scarletfever, or

any other disease dancerous to

Public health, he shall Give

notice immediately thereof to

the health officer .. .. %

Every physician who refuses or

neglects to give immediate

notice, for each offense, upon

conviction, shall be punished

by a fine of not less than five

dollars nor more than one

hundred dollars. This penalty

Shall not be enforced against a

Physician if another physician

in attendance has given to the

health officer agesignated in

tnis section an immediate

notice of such sick person and

the true name of the disease in

accoraance with the require-

ments of this section.

50a

of section 25-1-649 in part because

"Colorado courts have held that when a

statute provides for criminal punishment,

as does C.R.S. Section 25-1-649, the

intent of the legislature is presumed to

be that such punishment is in lieu of all

other remedies." Gammill, 727 F.2d at

952. In so holding, we stated as

follows:

First, we note that Colorado

courts have been extremely

Cautious in recognizing private

rights of action “implied" by

Criminal statutes, This

reluctance clearly stems froma -

concern within the Colorado

judiciary of crossing over the

bounds of the bench into the

province of the legislature.

See Quintano v. Industrial

Commission, 178 Colo. 131, 495

P.2d 1137, 1139 (1972); Farmers

Group, inc. v. Trimble, 658

FeuG baru, 231 8- (C010. ‘ADD,

1982). In the present case

Crh eB Section 25-1-649

provides for a criminal fine

ranging from five to one-

5la

hundred dollars. There is no

indication that the legislature

also intended to supplement

this criminal penalty with a

private civil right of action.

The Colorado Supreme Court has

observed that the creation of

such rights "is not a subject

in which we should attempt to

infer such a legislative

intent.” Quintano, ... 495

Pia@ S86 298 «4 «eX In light

of these strong statements, we

will not conclude that the

district court erred in not

inferring a private right of

action based upon C.R.S.

Section 25-1-649.

Id. at 953 (footnote omitted).

Rawson endeavors to refute this line

of cases with the Colorado Supreme

Court's opinion in Travelers Ins. Co. v.

Savio, 706 P.2d 1258 (Colo. 1985) which,

he argues, implicitly overrules

Silverstein. We disagree with Rawson's

interpretation of Savio. The plaintiff

in Savio brought a separate tort action

against his employer's workmen's

52a

ere ee Carrier for alleged bad

faith handling of his claim. No express

Or implied right of acticn was invoked

under the workmen's compensation

Statutes; the tort claim was Specifically

make independently of, not under, those

Statutes. The insurance company argued

that the workmen's compensation statutes

provided the exclusive remedy. The

Colorado Supreme Court rejected that

argument, finding that the Act and

Plaintiff's claim involved different

conduct:

Such overlap does not exist

betweén our statutes and the

tort of bad faith. The duty of

an insurer under the Act to

provide benefits and

compensation is factually and

analytically distinct from its

duty to deal in good faith with

Claimants, even though such

duties necessarily involve a

common underlying physical

injury.

53a

tee 2s 2e @t 1270. Thus, the major

inquiry and holding in Savio addressed an

issue wholly unrelated to the issue

addressed in Silverstein, which was the

existence of an implied private right of

action under a penal statute. That is

the obvious reason why neither

Silverstein nor related cases were

discussed by the Colorado Supreme Court

in Savio; rather that a supposition that

the parties and the court overlooked some

important relationship between those

19 Accordingiy, we do

cases and Savio.

not find that Savio has overruled

Silverstein or those other Colorado

19. We note that the defendant in Savio

argued that the existence of certain

penalty provisions in the Workmen's

Compensation Act, which specified a fine

Or business license suspension or

54a

Other states have followed a view

Similar to that expressed in Silverstein

and the other Colorado cases cited above.

see e.g., Mein v. Masonite Corp., 109

T1l1.2d 1, 92 I11. Dec. 501, 504, 485 N.E.

2d 312, 315 (1985) (affirming dismissal

of claim alleging wrongful discharge on

account of age, and citing with approval

Teale v. Sears Roebuck & Co., 66 I11.2d

_—_

1, 3, Ill. Dec. 834, 359 N.E. 2d 473

49. Comtinued .-..

revocation for insurers who violated the

Act’s provisions, defeated the

Plaintiff's common law causes of action.

The court rejected that argument. We do

Colorado cases, Rather, the court in

Savio simply declined to find that the

existence of those penalty provisions

caused a particular act (bad faith

handling of an insurance claim) to come

within the purview of the statutory

workmen's compensation scheme. The court

did-not address the issue of an implied

Private right of action under a penal

Statute. As indicated above, that issue

Simply was not the point of the case.

55a

(1976) for the proposition that

"[s]ince the [Age Discrimination] Act

provided a criminal penalty for its

violation, this language was interpreted

as an internal restriction which

‘strongly militates against, if indeed it

does not preclude, expansion of the

statutory sanction’ to include acivil

cause of action."); Fawcett v. G.C.

Murphy & Co., 46 Ohio St. 2d 245, 348

N.E. 2d. 144, 147 (1976) (affirming

dismissal of claims alleging wrongful

discharge on account of age, and stating

"it cannot be concluded that the General

Assembly by ‘clear implication’ intended

to create a civil action for damages for

the breach of R.C. 4101.17. This court,

therefore, is disinclined to read such a

56a

remedy into that section.").79

Wentworth v. Solem, 548 F.2d 773, 775

(8th Cir. 1977) (affirming dismissal of

complaint alleging violation of statutes

concerning the transportation in inter-

state commerce of goods manufactured by

convicts, and stating "we find that [the

plaintiff] cannot predicate a private

claim on those statutes. [18 U.S.C.

slections 1761-62 are criminal statutes

and do not expressly create a private

right of action.").

a0. Subsequent to the decision in

Fawcett, the Ohio General Assembly

civil actious under that statute.

Consequently, Fawcett does not represent

Current law regéerding private civil

actions for age @istrimination in Ohio.

See Garry v. TEW, Inc., 603 F.Supp. 157

(E.D. Ohio 1985). However, it does

indicated the Ohio Supreme Court's view

of the propriety of implying a private

right of action under a statute which

does not soecifically provide one.

57a

{2] Our review of Coloiado cases,

as well as those from other

jurisdictions, convinces us that the

Colorado Supreme Court would decline to

imply a private right of action under

Section 8-2-116. We believe that the

Colorado legislature dic not intend to

provide any remedy for violations of

Section 8-2-116 other than that expressly

provided in Section 8-2-117.

Accordingly, the district court «rred

when it concluded that an implied private

right of action exists under Section 8-2-

116.41

21. One further matter bearing upon the

existence or nonexistence of an implied

private right of action under section 8-

2-116 is the effect of the Colorado

legislature's decision, effective January

1, 1985, to repeal sections 8-2-116 and

117 and to include age discrimination

within the CAA. Fach party reaches a

different conclusion as to the meaning of

21. Continued...

the legislature's action. We note that

"(s]tatutes may be passed purely to make

what was intended all along even more

unmistakeably [sic] clear." United

States v. Montgomery County, 76 2d

998, 1003 (4th Cir. 1985); see also

Johnson v. Continental West, In 99

Wash.2d 555, 663 P.2d 482, 485 (1983).

However, the legislative history on the

bill effecting the change, House Bill

1198, provides no guidance as to the

legislature's intent.

Rawson essentially argues that the

decision to repeal Sections 8-2-116 and

117 and include age discrimination in the

CAA evidences only an intent to put a4

limit on the type of damages available to

age discrimination plaintiffs. It does

not indicate, Rawson claims, that the

legislature never intended a private

rigft of action for age discrimination

prior to the January 1, 1985 amendment.

Sears, by contrast, argues that the

amendment of the CAA and the repeal of

Sections 8-2-116 and 117 indicate that

the legislature never intended to create

a private right of action under Section

8-2-116. Noting this deficiency, the

legislature repealed the current statutes

and included age discrimination within

the statutory scheme prohibiting all

other forms of discrimination, whict

explicitly provides a specified remedy

and procedure for aggrieved plaintiffs.

The district court in this case rejecte

Sears' argument on this issue, stating:

59a

Because the Colorado Supreme Court

has stated, as did the district court in

this case, that the Colorado courts draw

"useful guidance" from the jurisprudence

21. Continued...

Defendant's argument is clever,

but does not persuade me that a

private right of action is not

‘thorized by Section 8-2-116.

1 have compared the provisions

of the proposed bill to the

statute and find that their

objectives are not totally

dissimilar.

585 F. Supp. 1393, 1394-95.

We find, however, that absent any

indication by the legislature of its

intent in effecting tnese changes by

means of House Bill 1198, we are simply

engaging in speculation as to that

intent. Both Rawson's and Sear's

arguments on this point have some appeal,

but we cannot reach any conciusion which

assists us in our inquiry into the prope1

construction of Section 8-2-116. we

accordingly acknowledge both parties'

arguments but find they do not dissuade

us from our conclusion, reached by

carefully examining Colorado cases and

those from other jurisdictions, that-no

implied private right of action exists

under Section 8-2-116.

60a

of the United States Supreme Court

concerning implied rights of action, and

because that jurisprudence provides

additional support for our conclusion in

this case, we turn to a brief review of

that case law.

C. Supreme Court Law on Implied

Rights of Action.

It is widely thought that Texas &

Pac. Ry. v. Rigsby, 241 U.S. 33, 36 S.Ct.

482, 60 L.Ed. 874 (1916) was the first

case in which the Supreme Court recog-

nized an implied private right of action

under a federal statute which did not

itself provide one. Some commentators

and courts believe the doctrine had its

—~

Origins in Marbury v. Madison, 5 U.S. (1

Cranch) 137, 2 L.Ed. 60 (1803) or even

earlier. See e.g., Merrill, Lynch,

Pierce, Fenner & Smith, Inc. v. Curran,

61a

456 U.S. 353, 102 §.Ct. 1825, 72 L.Ed.2¢

182 (1982); Foy, Some Reflections on

Legislation, Adjudication, and Implied

Private Actions in the State and Federal

Courts, 71 Cornell L. Rev. 501 (1986);

Note, Implying Civil Remedies from

Federal Regulatory Statutes, 77 Harv. L.

Rev. 285 (1963). For many years the

Supreme Court followed an expansive or

receptive view of the common law power of

courts to imply remedies into statutory

schemes where none existed. It followed

some variation of the basic maxim “ubi

jus ibi remedium" (where there is a right

there is a remedy). See, e.g., Allen v.

State Bd. of Elections, 393 U.S. 544, 89

$.Ct. 817. 22 LsE@.2d 1 (1969); J,1. Case

Co. vw. Borak, 377 U.S. 426, 84 S.Cr.

i555, 12 U.84.26 423 (1964). In so

doing, the Court looked into the language

62a

and legislative history of the particular

Statute to determine Congressional intent

concerning implied private rights of

action and it considered whether the

judicial implication of a remedy would

advance or frustrate the purpose of

Congress in enacting the particular

Statutory scheme. see, e@.g., Cort v.

Aan, 422 0.8. 66. $95 S.Ct. 2080, 45

L.Ed.2d 26 (1975):.see also generally

Ashford, Implied Causes of Action Under

Federal Laws: Calling the Court Back to

Borak, 79 Nw. U.L. Rev. 227 (1984);

Frankel, Implied Rights of Action, 67 Va.

L. Rev. 553 (1981). "During the 1940's,

1950's, and 1960's, the federal law of

implied private actions began to flower."

Foy, 7/71 Cornell L. Rev. at 559.

in 1975, in its decision in Cort v.

ASn, €22, U.6..-66, 935 $.Ct. 2080, 45

63a

L.Ed.2d 26 (1975), the Court endeavored

to make explicit the criteria to be used

in determining whether a private cause of

action should be implied ina statute

which does not provide one explicitly.

It was those factors which the district

court applied in this case. Since Cort,

the question of Congressional intent has

become the-main concern and the other

Cort facters have diminished in

significance. The csuestion of

implication of private remedies is now

viewed as a strict question of "Statutory

construction" to determine "whether

Congress intended to create the private

right of action asserted." Touche Ross &

Co. v. Redington, 442 U.S. 560, 568, 99

S.Ct. 2479, 24865, 61 L.Bd.2€ 82 (1979);

see also Daily Income Fund, Inc. v. Fox,

464 U.S. 523. 535-36 104 S.Ct. 831, 838,

64a

78 L.Ed.2d 645 (1984); Middlesex County

Sewerage Auth. v. National] Sea Clammers

Ase*n €53 0.8. 1, 143 201 S.Cts 26235,

2622-23, 69 L.Ed.2d 435 (1981); Texas

Indus. v. Radcliff Materials, Inc., 451

U.S. 630, 639, 1012 S.Ct. 2061, 2066, 66

L.Ed.2d 500 (1981); Shoultz v. Monfort of

Colorado, Inc., 754 F.2d 318 (10th Cir.

1985), cert. denied, --U.S.--, 106 S.Ct.

1259, 89 L.s.Bd.2d 569 (1986). ee

Congressional intent on the question of

an implied civil remedy can be discerned

from the statute or its legislative

history, further inquiry into whether the

judiciai implication of such a remedy

would further or impede Congressional

goals is unnecessary. Transamerica

Mortgage Advisor, Inc. v. Lewis, 444

U.8. 11,200 S.Ct. 242; 62 L.EG.20 i146

(1979).

65a

In addition, in Touche Ross, the

Supreme Court employed the familiar maxim

"expressio unius est exclusio alterius"

to find no implied liability where a

Statutory scheme contained provisions

Providing express liability elsewhere.

Thus, there has been a distinct shift

away from the ful] application of the

Cort factors to a Natrower exercise of

Statutory construction in Order to glean

Congressional intent. See €.g., Merrill

Lynch, Pierce, Fenner & Smith, Inc. vy.

Curran, 456 U.S. 353, 102 Pet. 1825, 72

L.Ed.2d 182 (1982); Transamerica Mortgage

Advisor, Inc. Vv. Lewis, 444 U.S. 11, 100

S.Ct. 242, 62 L.Ed.2d 146 (1979) .22

22. For a further discussion of this

Shift, see Ashford, implied Causes of

Action under Federal Law: Calling the

Court Back to Borak, 79 Nw. U.L. Rev. 227

(1984); Foy, Some Reflections on

66a

As the Eleventh Circuit has noted,

"the Supreme Court has imposed

increasingly severe restrictions on the

availability of implied causes of action

under federal statutes." Local Div. 7/32,

Amalgamated Transit Union v. Metropolitan

Atlantic Rapid Transit Auth. 667 F.2d

1327, 1334 (llth Cir. 1982).%% Because

22. Continued... .«

Legislation, Adjudication, and Implied

Private Actions in the State and Federal

Court, 71 Cornell L. Rev. 501 (1986);

Frankel, Implied Rights of Action, 67 Va.

L. Rev. 553 (1980); Note, Implied Causes

of Action: A Product of Statutory

—_— —— — —_——

bas One issue which has arisen in the

context of the Supreme Court's increasing

reluctance to imply private remedies in

federal statutes is the source of that

judicial power in the first place. "Some

cases treat the implication of private

actions as an exercise in construing the

67a

eos COMtinued ...

intent of the legislature ... . An

alternative theory is that in recognizing

an implied private right of action, a

court exercises an inherent judicial

power to create common-law remedies for

Statutory violations." Frankel, supra

note 22 at 557 (footnotes omitted).

Compare J.I. Case Co. v. Borak, 377 U.S.

26, 68 6.Ct. 1555, 12 L.Ed.«.2d 423 (1964)

and Bivens v. Six Unknown Named Agents of

Fed. Bureau 1 of Narcotics, 403 U.S. 388,

Sh Geet. 1999, 29 L.Bee2a 619 (1971)

(Harlan, J., concurring in the judgment)

(following the view that courts have an

inherent judicial power under the common

law to fashion remedies for violations of

statutes) with Transamerica Mortgage

Advisors, Inc. v. Lewis, 444 U.S. 11, 100

Gact. 262, 62 L.EG.2c 146 (1979), Touche

Ross & Co. ve. Redington, 442 U.S. S. 560

99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) and

Cannon v. University of Chicago, 441 U.S.

677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)

(Powell, J., dissenting) (following the

view that courts lack the power to

fashion remedies for statutory violations

absent a clear expression of legislative

intent to create such remedies). See

generally Note, Implied Causes of Action,

Supra note 22.

In view of the Supreme Court's shift

after Borak to a prinary emphasis on

legislative intent, it may be that the

Supreme Court has adopted the former

view--that federal courts lack the power

to imply private remedies without clear

legislative authorization to do so. See

generally Frankel, supra note 22.

68a

the Colorado courts draw “useful

guidance" from the Supreme Court's cases

on the question of implication of

remedies and because our review of

Colorado cases on the subject convinces

us that the Supreme Court's increasingly

23. Continued ...

Because, in this case, we must

construe the law of Colorado on

implication of remedies where statutes

provide none expressly, the Supreme

Court's increasingly restrictive view of

the power of federal courts to imply

private remedies is arguably less

Significant to our decision on state law.

State courts, as courts of general

jurisdiction, are not subject to the same

constraints concerning their power to

imply remedies as are federal courts,

which are courts of limited jurisdiction.

"If the Court's restrictive doctrine of

implication rests on the limited

jurisdiction of the federal courts...

the doctrine poses no obstacle to the

creation of private rights of action

under state law." Frankel, supra note 22

at 36¢€ a.. 64, Nonetheless, as the

Colorado courts, including the lower

court in this case, take “useful

guidance" from the Supreme Court cases,

so do we in endeavoring to construe

Colorado law.

pie

69a

restrictive view of the availability of

such judicially implied remedies is

consistent with Colorado law on that

issue, we view the restrictive trend in

the Supreme Court as Supportive of our

conclusion in this case.

CONCLUSION

For the reasons set forth is this

opinion, the decision of the district

court denying Sears' post-trial motion

for judgment notwithstanding the verdict

is reversed; the judoments for costs and

damages ar vacated; and the case is

remanded for entry of judgment dismissing

the complaint.

70a

MCKAY, Circuit Judge, dissenting:

All panel members occasionally are

tempted to ignore or reject a prior

decision by another panel because it is

inconvenient or, worse, objectionable.

However, without being lawless, we are

not at liberty to do so because of the

clear and uniform rule that only the en

banc court may reject established circuit

authority. See United States v. Villano,

816 F.2d 1148, 1450 (10th Cir. 1987) (en

banc) (en banc rehearing granted "to

consider the propriety of changing [our]

established rule"); Wion V. United

States, 325 F.2d 420, 425 (10th Cir.

1963) (en banc) (en banc court convened

"to reexamine our prevailing rule"),

cert. denied, 377 U.S. 946 84 S.Ct. 1354,

12 L.Ed.2d (1964). The en banc rule isa

sensible one which avoids chaos and makes

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729 G& — Sa q . a

1315 (10th Cir. 1983) (clearly erroneous

~ - ‘ae . , Tt . 5 . :

standard); Guild Trust v. Union Pac. Land

Resources Corp., 682 F.2d 208, 21 10t!

Cire 1982) (court of appeals woulc fo1l110w

View Ol 11Strict cour;rt as C¢ what

doctrine would be adopted by state

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‘ry }

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i1éw ana appeiiate re Ew is governed Dy

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tne Ci @ariy Prroneous Standarc oO Fed.

74a

Cir. 1980) (views of resident district

judge on matters of state law carry

extraordinary force on appeal), cert.

denied, 452 U.S. 967, 101 S.Ct. 3123, 69

L.Ed.2d. 981 (1981); Obieli v. Campbell

Soup Co., 623 F.2d 668, 670 (10th Cir.

1980) (degree of deference standard);

Farmers Alliance Mut. Ins. Co. v. Bakke,

619 F.2d 865, 868 (10th Cir. 1980)

(extraordinary force standard); Fox V.

Ford Motor Co., 575 F.2d 774, 783 (10th

Cir. 1978) (trial judge presumed to be in

a superior position to predict whether

State supreme court would follow majority

or minority position); Rasmussen

Drilling, Inc. v. Kerr-McGee Nuclear

Corn... S71- Fide 1146, .~ 1148. (10th: Giz.)

(extraordinary force standard, citing

Rule 52(a)), cert. denied, 439 U.S. 862,

SSS. 0. 233%. SEL BG.26 i TL -t23Tsts

Mustang Fuel Corp. v. Youngstown Sheet &

Tune Co,, $6i F.i2G 202, 204 (10th Cir.

1977) (clearly erroneous standard);

Neu v. Grant, 548 F.2d 281, 287 (10th

Cir. 1977) (extraordinary persuasive

force standard); Cox v. Cox, 543 F.2d

1277, 1280 (10th Cir. 1976) (great weight

Standard); Matthews v. IMC Mint Corp.,

542 F.2d 544, 546 n.5 (10th Cir. 1976)

(district judge's view persuasive and

ordinarily accepted); Land v. Roper

Corp., 531 F.2d 445, 448 (10th Cir. 1976)

(great weight standard); United States V.

Bunt; Sil3 Pi2G 229, 136 (20th Cir, 1975)

(extraordinary force standard); Stevens

v. Barnard, 512 F.2d 876, 880 (10th Cir.

1975) (extraordinary persuasive force

standard); Budde v. Ling-Temco-Vought,

Tuc... Siti F.26 1633, T0386 4208 Cis,

1975) (great weight and credence

76a

Standard); United States v. Wyoming Nat'l

Bank, 505 F.2d 1064, 1068 (10th Cir.

1974) (most persuasive standard); Hardy

Salt Co. v. Southern Pac. Transp. Co.,

501 F.2d 1156, 1163 (10th Cir.) (resident

district judge's views are persuaSive and

ordinarily accepted), cert. denied, 419,

95 S.Ct. 515, 42 L.Ed.2d 308 (1974);

Casper v. Neubert, 489 F.2d 543, 547

(10th Cir. 1973) (resident district

judge's view persuasive and ordinarily

accepted); Julander v. Ford Motor Co.,

488 F.2d 839, 844 (10th Cir. 1973)

(clearly erroneous standard); Jorgensen

v. Meade Johson Laboratories, Inc., 483

Pun aff, 289 {200 Cir. 19737 teietriect

judge's views persuasive and ordinarily

accepted); Sade v. Northern Natural Gas

Co., £83 F.2G 230, 234 (10th Cir. 1973)

(resident district judge's views

T7a

persuasive and ordinarily accepted);

Wells v. Colorado College, 478 F.2d 158,

161 (10th Cir. 1973) (clearly erroneous

standard); Stafos vy

477: ¥.20C 369, 373 (18th €iz,)

(extraordinary persuasive force

standard), cert. denied, 414 U.S. 944, 94

S.Ct. 230, 38 L.Ed.2d 168 (1973); United

States v. Hershberger, 475 F.2d 677, 681

(10th Cir. 1973) (great weight and

credence standard); Binkley v.

Manufacturers Line Ins. Co., 471, F.2d

889, 891 (10th Cir.) (clearly erroneous

standard), cert. denied, 414 U.S. 877,

94 S.Ct. 130, 36 L.Fa.26 122 (1973)3 Sta-

Rite Indus., Inc. v. Johnson, 453 F.2d

Tawey 2am 4A0C Cit, i971) (cie@eariy

erroneous standard), cert. denied 406

U.S. 958 (1972); Brennan v. University of

Kansas, 451 F.2d 1287, 1291 (10th Cir.

78a

1971) (clearly erroneous standard);

Sutton v. Anderson, Clayton & Co., 448

P.26 293, 2897 (10th Cis. 2973) teLeariy

convinced to the contrary standard);

Traders State Bank v. Continental Ins.

og 448 F.2¢ 290, 282

(10th Cir. 1971) (clearly erroneous

standard); Hardberger & Smylie v.

Employers Mut. Liab. Ins. Co., 444 F.2d

1318, sO or eS (20 £0 Cir. 2971)

(extraordinary persuasive force

standard); Vaughn v. Chrysler Caorp., 442

F.2d 619, 621 (10th Cir.) (knowledgeable

and persuasive standard), cert. denied,

404 U.S. 857, $2 $.Ct. 106, 30 L.Ed.2c 96

(1971); Goodyear Tire & Rubber Co. v.

1970) (clearly erroneous standard); Nevin

V. Hoffman, 431 F.2d 43, 46 (10th Cir.

1970) (clearly erroneous standard);

79a

Teague v. Grand River Dam Auth., 425 F.2d

430, 134 (10th -Cic. -19790) (Clearly

erroneous Standara); Brunswick Corp. v. J

& P, Inc., 424 F.2d 100, 104 (10th Cir.

1970) (clearly erroneous standard);

Parsons v. Amerada Hess Corp., 422 F.26

610 , 614 (10th it Be aa | ea ee

(Clearly wrong standard); Denning Ve

a1 CGO., 422 F.2d 55, 58 (10th Cir.

1970) (manifestly wrong standard);

Fire & Marine ins. Co. v.

Aliied Steel Constr..Co., 421 F.2a 512,

514 (10th Cir. 1970) (clearly erroneous

Standard); Manufacturer's Nat'l Bank Va

Hartmeister, 411 F.2d 173, 176 (10th Cir.

1969) (clearly erroneous standard);

Douglas-Gardian Warehouse Corp. v. Jones,

405 F.2d 427, 428 (10th Cir. 1969) (not

the province of court of appeal to settle

uncertainties in state law); Continental]

80a «

Casualty Co. v. Fireman's Fund Ins. Co.,

403 F.2d 291, 336 (10th Cir. 1968) (trial

court's conclusion should be accepted on

appeal where there is no compelling

indication of a contrary local rule);

Adams v. Erickson, 394 F.2d 171, 173

—_— ee oe

(10th Cir. 1968) (clearly convinced to

the contrary standard); Smith v Greyhound

Lines, Inc., 382 F.2d 190, i192 (190m €2t.

1967) (clearly erroneous standard); Scott

v. Stocker, 380 F.2d 123, 126 (10th Cir.

1967) (clearly erroneous standard);

Stubblefield v. Johnson-Fagg, Inc., 379

F.2a 270, 273 (10th Cit. i967) 462080. 7

convinced to the contrary standard);

Industrial Indem. Co. v. Continental

Casualty Co., 375 F.2d 183, 185 {10th

Cir. 1967) (clearly wrong standard);

Jamaica Time Petroleum, Inc. v. Federal

Ins. Co., 366 F2d 156, i139 (2008 C22,

8la

1966) (clearly convinced to the contrary

standard), cert. denied, 385 U.S. 1024,

B/ S.Ct. 753, 17 L.Ed.2d 674 (1967);

Pittsburgh-Des Moines Steel Co. v.

American Sur. Co., 365 F.2d 412, 416

(10th Cir. 1966) (where state supreme

court has not considered question, court

of appeals will follow decision of

resident district judge); Solomon v.

Downtowner of Tulsa, Iinc., 357 F.2d 449,

451 (10th Cir. 1966) (in absence of

ruling of state court, court of appeals

would accept opinion of resident federal

judge); Bushman Constr. Co. V. Conner,

391i F.2G 681, 684 (10th Cir. 1965)

(clearly erroneous standard), cert.

denied, 384 U.S. 906 (1966); Bledsoe v.

United States, 349 F.2d 605, 606 (10th

Cir. 1965) (clearly erroneous standard);

First Nat'l Bank & Trust Co. v. Foster,

82a

346 F2d 49, 51 (10th Cir. 1965) (clearly

wrong standard); Glenn v. State Farm Mut.

Auto. Ins. Co., 341 F.24 S$. 39 (10th Cir.

1965) (clearly wrong standard); United

States Fidelity & Gar. Co. v. Lembke, 328

F.2d 569, 572 (10th Cir. 1964) (clearly

convinced to the contrary); Missouri Pac.

R.R. Co. v. American Refrigerator Transit

Co., 328 F.2d 569, 569 (10th Cir. 1964)

(clearly erroneous standard); Robert

Porter & Sons, Inc. v. National

Distillers Prod. Co., 324 F.2d 202, 205

(iGch Cir. 1963) (trial judge

determination accepted if it is within

general authorities on point); F & 8S

Constr. Co. v. Berube, 322 F.2d 782, 785

(10th Cir. 1963) (clearly convinced to

the contrary standard); Buell v. Sears,

Roebuck & Co., 321 F.2d 468, 470 (10th

Cir. 1963) (clearly convinced to the

83a

contrary standard); Crigui v. Blaw-Knox

Corp... 318 F.2d 811, 812-13 (10th Cir.

1963) (clearly convinced to the contrary

Standard); Dallison v. Sears, Roebuck &

Co., 313 F.24 343, 347 (10th Cir. 1962)

(clearly convinced to the contrary

standard); Hamblin v. Mountain States

Tel. & Tel. CoO., 271 F.2d 562, 564 n.l

(iGth Ciz, 1959) (extraordinary

persuasive force standard); Cranford v.

Farnsworth & Chambers Co., 261 F.2d &, 10

(10th Cir. 1958) (court of appeals would

leave undisturbed state law

interpretation by local resident judge);

Mitton v. Granite State Fire Ins. Co.,

196 F.2d: 988, 932 tiGCh Cir. 123932)

(clearly erroneous standard).

The local judge rule is written for

and applies only to cases, like the

present, in which there is no direct

84a

state supreme court precedent regarding

the matter of state law in dispute, for

the rule is unnecessary when the state

supreme court has already spoken and has

resolved the issue. As the majority

concedes, the Colorado Supreme Court has

not ruled on the question of whether

there is a private cause of action for

employment discrimination in Colorado.

Yet, uSing as its justification the very

absence of Supreme Court precedent that

requires application of a clearly

erroneous standard in this circuit, the

majority proceeds to make its "own

independent inguiry into the proper

interpretation of state law," maj. op. at

911-912, unabashedly adopting a de novo

standard of review.

The answer to the legal question

given by the local district judge sitting

in Colorado in thi

aa)

¢p)

cand

BE@eVGELSAivpiec unaery a GHiscipliined

elaborate avoidance of the clear]

erroneous rule and its application of

de novo standard. How could we conclude

otherwise when trial courts ir

eight cases, poth state and federal,

have divided equally on the issue of

whether Colorado law provides a right tc

be compensated for wrongful discharge?

See maj. Op. at 9l1l. I fing it hard to

believe that this court could, with a

Straight face, conclude that either side

of this deep division among respected

State and federai juristS 1S clearly

erroneous. Sound judgment surely

Suggests that one side does have the

86a

better'of the argument, of course, but

that observation is a far cry from

establishing that the other side is

Clearly erroneous under a logical and

Gesciplined application of that standard

of review.

I would happily join the panel in

seeking the en banc abandonment of the

clearly erroneous standard of review of

State law issues. See Rhody, 771 F.2d at

1421 (McKay, J., concurring). This

panel, however, is without power to

ignore, rewrite, or reject it.} So long

1. The majority's citation of Catts Co.

v. Gulf Insurance Co., 723 F.2d 1494,

1503-04 (10th Cir. 1983) (McKay, Jd.,

dissenting) for the proposition that

"deference is inappropriate where local

district judges differ," maj. op. at 912

n.7, is inapposite. In that dissent, I

urged only that our own prior appellate

precedent regarding the interpretation of

Oklahoma law controlled rather than the

Oicaeenentennetnlll

87a

1. Continued...

district judge's contrary -analysis in

that case. No conflict among federal

district courts existed in Oklahoma

with respect to the issue in question,

and the Oklahoma courts had not

addressed the subject. My dissent stood

for the unremarkable proposition that we

should abide by our own Tenth Circuit

precedent under principles of stare

decisis in the absence of subsequent

Oklahoma authority.

The quotation excised from my

footnote in Maughan v. SW Servicing,

Inc., 758 F.2d 1381, 1384 n.2 (10th Cir.

1985), see maj. op. at 911, while

concededly accurate, was notably

selective. As a full reading of the foot

note makes clear, the district court's

opinion regarding the state law issue in

that case was merely dicta and was

therefore not controlling on appeal. The

note's additional reference to the

conflict with another district judge

would not have been sufficient a:one to

justify deviation from our embedded rule.

Of course, the absurdity of

deferring in separate cases to

irreconcilable interpretations of the

Same state law issue is obvious, as my

concurrence in Rhody, 771 F.2d at 1421,

discusses at some length. My implied

reference to this absurdity in Maughan is

indicative of the temptation to which I

alluded at the beginning of this opinion.

My dicta in Maughan presaged the fuller

88a

as the rule governs circuit review in

diversity cases, this panel cannot

Overturn the trial court's interpretation

of state law without rendering nugatory

the clearly erroneous standard of review-

-a much greater mischief in the long run

than affirming a result inthis case with

which the majority disagrees as a matter

of first impression.

Even if we were at liberty to apply

the majority's proposed de novo review

standard, I cannot agree with its

analysis of what Colorado law is or will

1. Continued...

development of that concern in Rhody and

my Supplication for en banc

reconsideration of the local judge rule

herein. However, Maughan is not

authority for deviating from the local

judge rule when the district court'

interpretation is not merely dicta but

the basis upon which the holding rests.

Admittedly, seeds were planted ir

Maughan, but only en banc action can

harvest them.

63)

89a

be when the Colorado Supreme Court_has

occasion to rule on the matter ina pre-

statute case.2

My point of departure

from the majority is a fundamental one,

as it is rooted in our differing

perspectives of what our proper judicial

role should be in those diversity cases

in which neither legislation nor prior

Judicial precedent clearly controls

disposition. When the state legislature

is silent or gives ambiguous messages,

the majority perceives its hands to be

tied; it considers itself without power

to recognize a cause of action not

explicitly blessed by the legislature.

2. As the majority notes, the Colorado

lecqislature has settled the matter for

all future cases by placing complaints

for Ciscriminatory discharge based on age

within the purview of the Colorado Civil

Rights Commission. See Colo. Rev. Stat.

Sections 24-34-401 to 406 (1982 & Supp.

1986).

90a

This perspective is perhaps

excusable, or at least understandable,

given the defined and restricted role of

federal courts in adjudicating causes of

action under federal law. After all,

there supposedly is no "federal general

common law." Erie R. R. Co. v. Tompkins,

$64 U.S. 44, 78, S.CE. 017. 622, 82 Lee.

1188 (1938). We are taught that eithe:

Congress or the Constitution, see Bivens

v.- Six Unknown Named Fed, Narcotics

Agents, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971), creates all federal

actions. We become accustomed to

continually looking to the legislature

for signs and clues as to the existence

of and extent of the federal rights it

establishes. When Congress appears to

create a right without a remedy, we

proceed to analyze under the principles

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————————— : 5 —————

9la

of Cort v. Ash, 422 U.S. 66, 95 S.Ct.

2080, 45 L.Ed.2d 26 1975), whether

Congress impliedly fashioned a remedy,

for we have no independent power to

invent a federal cause of action. We

must always look elsewhere.

This ingrained habit of envisaging

all causes of action aS emanating solely

from either the legislature or the

Constitution can easily skew the analysis

in a diversity case. The majority in

this case, borrowing heavily from federal

principles and specifically citing Cort

v. Ash, see maj. Op. at 914-922 fell

victim to this constraining habit of

locking solely to statutory law in

deciding whether Mr. Rawson has a cause

of action in Colorado.

In a diversity case, however, our

role is radically different, for there we

92a

have the privilege of sitting as a

common-law court. That Colorado courts

are common-law courts is beyond dispute.

See e.g., People v. Montgomery, 669 P.2d

1387. 1390 (Coio. 1983) (en banc)

(recognizing discretionary sentencing

power of courts as "derived from the

common law"). The fixet tack of a common-

law court, of course, iS to Carry out, or

abide by the restraints imposed by, the

will of the legislature unless that will

be prohibited by either the state or the

federal constitution. Its second task is

to fill in the interstices left by

legislative enactments that are either

general in nature or amibiguously express

the legislative will. Its duties do not

end there, however. Its further task,

which is grounded in conservative

doctrine antedating the founding of the

93a

State of Colorado and even the nation, is

to expand and contract causes of action,

particularly those sounding essentially

in tort, aS wisdom and experience

dictate. That function is, indeed, the

majesty of the common law. Tort law

itself was born and evolved not in

legislative enactment er by this common-

law method so fully accepted as a part of

the traditional function of common-law

courts. "Perhaps more than any other

branch of the law, the law of torts isa

battle ground of social theory." W.

Prosser, Handbook of the Law of Torts

Section 3 at 14-15 (4th ed. 1971).

The most common source of support

for either the evolution of existing

causes of action or for the first

recognition of what is sometimes called a

new cause of action is public policy.

94a

Awards for pain and suffering and

punitive damages are venerable examples

of judicially evolved recoveries. The

soundest and most conservative source

traditionally tapped by courts when

discerning public policy within the

context of evolving tort actions has been

legislative declarations that certain

conduct is criminal.

Criminal cases may be useful as

guides to the type of conduct

which the law will condemn or

excuse, and the existence of a

Criminal statute may indicate a

legislative policy which the

courts will further by creating

tort liability.

(T]he courts are seeking, by

something in the nature of

judicial legisiations, . €o

further the ultimate policy for

the protection of individuals

which they find underlying the

statute, and which they believe

the legislature must have had

in mind.

95a

Id. at Section 2 at 9, Section 36 at 191

(emphasis added). Thus directed by the

clearest of all public policy guideposts,

the courts need only award properly

measured compensation to the victims of

breaches of such unequivocally deciared

public policies.

Indeed, even the oft-used argument

that the legislature would have

explicitly created a private cause of

action for breach of a criminal statute

if it so intended is itself a common-law

creation of the courts. It ought to be

applied sparingly, if at all, because it

turns the traditional presumption of the

common law--that injuries occasioned by a

known wrong are compensable--on its head.

Common-law courts have not hesitated to

be creative in defining causes of actions

whenever a well-litigated case makes

96a

clear that the-new action carries out the

basic tenet of awarding just compensation

to the victim of a wrong. Nor have they

hesitated in abandoning or reformulating

dated concepts when their obsolescence

is made plain. See, e.g., O'Connor v.

Boulder Colorado Sanitarium Ass'n, 105

Colo. 259, 96 P.2d 835 (1939) (en banc)

(charitable immunity does not bar tort

action, merely prevents levy against

Charitable trust).

3. Unlike the majority, I perceive no

Sigificance in Mr. Rawson's failure to

appeal the dismissal of several common-

law causes of action.See maj. op. at 909

nol. Mr. Rawson was the eventual victor,

and his decision not to appeal the

Gismissal of his alternative grounds for

victory only makes sound economic sense

to me. Such failure does not reflect

either positively or negatively on

whether the Coloradc Supreme Court would

recognize this cause of action.

97a

TO its credit, the Colorado

legislature in 1903 early recognized, by

making such conduct criminal, that public

policy clearly condemns the injury of an

employee by unwarranted discriminatory

discharge. Although the Colorado Supreme

Court has not to date acknowledged the

right of recovery for such injury,

neither has it denied the right; it

simply has not ruled on the issue. We

can and must safely assume that the

delay, in the grandest traditions of all

common-law courts, is due to the absence

of a well presented and soundly argued

case, rather than indicative of some

invented implication that no such right

of recompense lies under tation

principles.

In my view, the Colorado Supreme

Court will be more likely, now that a

98a

solid body of proper cases awaits

appellate review, to include this cause

of action among its cousins rather than

invent some notion that the legislature

intended by its silence to affirmatively

prohibit the traditional exercise’ of the

judicial function of fashioning sound

remedies for known wrongs. It would be

difficult for a common-law court to

resist at this late date the recognition

of the action, especially if it tried to

resist by espousing its own invented rule

regarding legislative action by silence.

The fact that the legislature has

entered the field since these causes of

actions arose and tailored a different

kind of remedy for the future has no

reasonable implication for these injuries

of the past. As the courts are so fond

of saying, the legislature is well aware

99a

of the common-law process and function

and, had it intended to limit this

—/

Cv)

‘Ommon-law function by

retrospeetive application of the new

Statute, it would have said so.

The trial court in this case has

developed a more-than-adequate record to

show that this plaintiff has been wronged

in violation of both general and

legislatively declared public policy.

The application of ancient and well

respected rules of decision mandates that

its judgment and that of its fact-finding

common-law jury be affirmed.

Finally, even if I were to restrict

myself to a statutory analysis in this

case, I am persuaded that the district

court's extensive and specific analysis

of Colorado law with respect to express

100a

and implied statutory rights of action is

correct. See Rawson v. Sears, Roebuck &

Co., 530 F. Supp. 776 (D. Colo. 1982);

85 P

WwW

Rawson v. Sears, Roebuck & Co.,

Supp. 1393 (D. Colo. 1984).

In view of this court's rejection of

the basic cause of action, I need not

reach the other issues raised by Mr.

Rawson in his briefs and arguments. Had

we recognized the right of recompense, we

might have then examined whether the

evidence supported the full amount of the

award in this case. That examiration

might well have been disciplined by the

Subsequent legislative enactment. It is

Clear that the legislature, even with

hindsight, did not reject the idea that a

Claim of discriminatory discharge based

On age could be heard outside the

101a

criminal context; it merely tailored and

disciplined the application of the idea.

With that in mind, we likely would have

Strictly scrutinized whetner the

laintiff's evidence fully sustained the

damages awarded.

| .

102a

Appendix

JULY TERM - July 28, 1987

Before Honorable William J. Holloway,

Jr.,, Chief Judge, Honorable Monroe G.

McKay, Honorable James kK. Logan,

Honorable Stephanie K. Seymour, Honorable

Stephen H. Anderson, Honorable Deanell R.

Tacha, Honorable Bobby R. Baldock,

Circuit Judges, and Honorable Luther L.

Bohanon, District Judge*

GARY RAWSON,

Plaintiff-Appellee,

ies Nos. 85-1223

and

SEARS ROERUCK & CO., 85-2366

Defendant-Appellant,

EQUAL EMPLOYMENT ADVISORY

COUNCIL,

eee eee eee

Amicus Curiae.

Appellee's petition for rehearing is

denied on the merits by the panel to whom

the case was submitted.

The petition for rehearing having

been denied on the merits, and the en

103a

banc suggestion having failed to obtain a

majority vote of the active circuit

judges who are not recused, the

suggestion for rehearing en banc is

denied.

Judge Moore took no part in the

consideration or disposition of the en

banc suggestion,

ROBERT L. HOECKER

Clerk

By: Patrick Fisher

Chief Deputy Clerk

f the Western District of Oklahoma,

sitting by designation

104a

United States Court of Appeals

Tenth Circuit

Office of the Clerk

C404 United States Courthouse

Denver, Colorado 80294

March 5, 1986

Mr. Gregory A. Eurich

Mr. Charles M. Johnson

Holland & Hart

555 - 17th Street, Suite 2900

Denver, CO 8020]

Mr. Charles G. Bakaly, Jr.

Ms. Joanne B. O'Donnell

Ms. Debra Boyd Secs

O'Melveny & Myers

400 So. Hope Street

Los Angeles, CA 90071

Re: No. 85 - 1223 and 85-2366

consolidated)

Gary Rawson vs. Sears Roebuck

& Co.

Dear Counsel:

This Court has today assigned the

Captioned case to Calendar B, pursuant to

Tenth Circuit Rule 10. Appellant's brief

105a

shall be served and filed 21 days from

the-date of this letter. Appellee's

prief shall be served and filed 21 days

after service of appellant's brief.

Appellant may serve and file a reply

brief within 14 days of service of

appellee's brief.

Ten copies of all briefs are required

to be filed with the Court. Briefs must

comply with Federal Rules of Appellate

Procedure 28, 29, 3l, and 32, except as

otherwise provided by Tenth Circuit Rules

9, 10 and ll.

This appeal will be heard on the

original record. An appendix may not be

used without the Court's permission.

If the parties conclude that oral

argument would not be of material

assistance to the Court, they are

106a

requested to file a motion for

disposition of this case without

argument. If such a motion is filed, the

briefs and the trial court record will be

reviewed by a panel of three judges. If

the panel unanimously deterines that oral

argument is not needed, the case will be

submitted for determination without oral

argument.

The parties are to address whether

the issue of whether there is a private

cause Of action under C.R.S., section 8-

2-116 should be certified to the Colorado

Supreme Court.

Yours very truly,

HOWARD K. PHILLIPS,

Clerk

By: Virginia Booth

Deputy Clerk

eee: James A. Carleo, 10 Boulder

Crescent, Suite 303, Colorado

107a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 85-M-2336

LESLIE O. TAYLOR,

Plaintiff,

Vv.

K MART CORPORATION,

Defendant.

ORDER DISMISSING SECOND CLAIM FOR RELIEF

Pursuant to the defendant's motion to

dismiss, the briefs, and the hearing held

on January 3, 1986, the court finds and

concludes that the second claim for

relief does not state a claim for relief

because in this court's view there is no

private right of action fora violation

of C88 SOC. -O48-1 1S, The motion to

dismiss will be denied as to the third

Claim for relif. Upon the foregoing, it

107aa

ORDERED that the second claim for relif

of the plaintiff's complaint is dismissed

for the failure to state aclaimon which

relief can be granted.

Dated: January 13, 1986

BY THE COURT:

Richard P. Matsch

Judge

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