# Petition for Writ of Certiorari — Rawson v. Sears

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1006

## Text

NO.

IN THE SUPREME COURT
OF THE UNITED STATES

October Term, 1987

GARY RAWSON,
Petitioner,

Ve

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

~

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.

11

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

12

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

re

Appendix Part II:

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Fourteenth Amendment to the United States

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14

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

c

company-wide plan to reduce the number of

POT TT

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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

be

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

16

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,

17

TRIAL COURT PROCEEDINGS

Mr. Rawson filed his complaint in
State district court at Pueblo, Colorado

July, 1981. Sears removed the case to

rh

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

P
Colorado law. ~ (172a)
in 1986, C.R.S. 8-2-116 was repealed

by the Colorado legi

tn

ature, and age

discriminat

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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.

18
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.

Lo
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

ry

impression under Colorado law. (10a) The

.

a

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

.

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certified to the Colorado Suprem
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or make Known in any manner, that tney

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woulda not be applying the time nonorea
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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,

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the clearly erroneous rule and its

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

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Judge McKay further stated that this
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cannot overturn the trial court's

interpretation cf state law without

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pliaintiff has been wronged in violation

yo Continued. ..

Since the trial court found Mr. Rawson
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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.

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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

2)
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pa

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:

25
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:
I

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

27

ights., Such an

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JUQCde, Wistric t UO OKianoma.
_ , an « - f . - eZ c
Sears, ROECDUC! Cx ~-OMpa}l appeadai Ss
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¢ = + e100 n - ’ ~ . }
- ¥ «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 -«

3a

ermination he either failed or chose not

ct

(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 -

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

ee

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

14

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

4
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
f

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

of

ial

O

47a

10n.°* id. at 892-93

b4

(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

we

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

a)

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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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

4
/

2a

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

rn
2)
0
w
aa)
+

¢p)
cand
oO
ct

BE@eVGELSAivpiec unaery a GHiscipliined

elaborate avoidance of the clear]

a

erroneous rule and its application of

iy

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
e
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

BEST AVAILABLE COPY

————————— : 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

.
0)
—/
"
+
2)
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

i

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
is
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1067%3A1. Public record. Not legal advice.