November 26, 2014

10th Circuit BAP Local Rules of Practice Undergo Amendment

The Local Rules for the United States Bankruptcy Appellate Panel of the Tenth Circuit (BAP) were recently updated by the Panel’s Local Rules of Practice Committee.

The 8000 series of the Federal Rules of Bankruptcy Procedure have also been incorporated into the amended Local Rules. The full Rules are available here.

Click here to view a quick guide to the Rules changes.

The changes went into effect May 1, 2010.

Crim.P. 43, Regarding Presence of Defendant by Interactive AV Device, Updated by Colorado Supreme Court

The Colorado Supreme Court this month approved an addition to Colorado Rules of Criminal Procedure (Crim.P.) 43, “Presence of the Defendant,” effective immediately.

Rule Change 2010(12) details the amendment to Crim.P. 43, which now includes a new subsection (e) that specifies the requirements and types of hearings at which defendants may appear via two-way audiovisual (AV) transmission.

Crim.P. 43(e) was approved, en banc, by the Colorado Supreme Court on June 17 and became effective immediately.

Douglas County Judge Michele Marker Announces Retirement Plans

The recent announcement of Douglas County Judge Michele A. Marker’s plan not to seek retention is the latest in a flurry of Colorado judicial retirements announced this summer, according to a press release (pdf) issued by State Judicial.

The Eighteenth District Judicial Nominating Committee will convene at 9:00 a.m. on Thursday, August 12, to review applications and recommend nominees to fill the vacancy. The meeting will be held at the Douglas County Courthouse, 4000 Justice Way, in Castle Rock. Following the interviews, the Commission will recommend finalists for Gov. Bill Ritter to consider for appointment, and the governor will announce his appointee within 15 days.

County court judges receive a provisional, two-year appointment by the governor, after which they are retained by voter approval every four years. The annual salary is $123,067. Judge Marker’s successor will begin his or her term on January 1, 2011.

All attorneys licensed to practice in Colorado and who are registered electors in Douglas County are eligible to apply for the judgeship. Detailed information about the Eighteenth Judicial District and the application are available online. Application packages (consisting of one original application plus seven copies) must be received by the office of Commission ex officio chair, Justice Alex J. Martinez, 101 W. Colfax Ave., Eighth Floor, no later than Wednesday, July 28 at 5:00 p.m.

Other Colorado judges announcing their retirement in recent weeks include Colorado Supreme Court Chief Justice Mary Mullarkey, Fifth Judicial District Judge Terry Ruckriegle, Nineteenth Judicial District Judge Gilbert Gutierrez, Denver District Court Judge Stephen Phillips, and Jefferson County Judge Charles Hoppin.

Jeffco County Judge Charles Hoppin Retiring; Applicants Sought for Vacancy

State Judicial announced this morning the January 2011 retirement of Jefferson County Court Judge Charles T. Hoppin and a request for applications for individuals interested in succeeding him on the bench.

The First District Judicial Nominating Committee will convene on Monday, August 16, to review applications and recommend nominees to fill the vacancy. The meeting will be held in the training room of the Jefferson County Courthouse, 100 Jefferson County Parkway, in Golden. Following the interviews, the Commission will recommend finalists for Gov. Bill Ritter to consider for appointment, and the governor will announce his appointee within 15 days.

Judges in the Jefferson County Court preside over traffic, misdemeanor, and civil cases, as well as process felonies through preliminary hearing proceedings. County court judges receive a provisional, two-year appointment by the governor, after which they are retained by voter approval every four years. The annual salary is $123,067. Judge Hoppin’s successor will begin his or her term in January 2011.

All attorneys licensed to practice in Colorado and who are registered electors in Jefferson County are eligible to apply for the judgeship. Detailed information about the Jefferson County Court and the application are available online. Application packages (consisting of one original application plus seven copies) must be received by the office of Commission ex officio chair, Justice Nathan B. Coats, 101 W. Colfax Ave., Eighth Floor, no later than Wednesday, August 4 at 3:00 p.m.

Judge Hoppin has served as Jefferson County Court judge since May 1996. From 1972 to 1996, he was in private practice, specializing in domestic relations and criminal defense cases. He was a Deputy District Attorney from 1969 to 1972.

(image source: State Judicial)

Definition of “Son and Daughter” Now Clarified by FMLA

The U.S.Department of Labor has clarified the definition of “son and daughter” for purposes of interpreting the Family and Medical Leave Act (FMLA). Neither a legal nor biological relationship is required under the FMLA to demonstrate “parental rights” for a person to take work leave to care for a child.

The FMLA grants workers up to 12 weeks of unpaid leave during a 12-month period to care for themselves or a “loved one,” now expanded to include members of non-traditional families.

Of the more inclusive definition of “son and daughter,” Labor Secretary Hilda L. Solis remarked:

No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill. No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT [lesbian, gay, bisexual, and transgender] families, are protected by the FMLA.

(image source: U.S. Department of Labor)

Supreme Court Approves Colorado Rules of Civil Procedure Amendments

Two changes to the Colorado Rules of Civil Procedure (C.R.C.P) were approved recently by the Colorado Supreme Court.

The first change, Rule Change 2010(7) (pdf), amends C.R.C.P. 10(i), “Form and Quality of Pleadings, Motions and Other Documents,” to update the formatting specifications for certain State Judicial forms. This amendment was approved by the court, en banc, on April 5, 2010, and went into effect immediately.

The second change, Rule Change 2010(10) (pdf), amends C.R.C.P. 47(a)(5) and (u), “Jurors,” adding language that limits the circumstances under which an impaneled jury may discuss a case, the evidence presented at trial, and the case’s potential outcome. The language also grants the trial court the discretion to limit “pre-deliberation discussions of the evidence” based on a showing of “good cause.” This amendment was approved by the court, en banc, on June 7, 2010, and went into effect immediately.

Second Judicial District Court on the Move, Literally, This Week

Monday, July 28 is the last day for Second Judicial District Court felony criminal, drug, and juvenile matters to be heard at Denver’s City and County Building.

The Lindsey-Flanigan Courthouse, located at 520 W. Colfax Ave., will open for business on Tuesday, July 6, following the Independence Day holiday weekend. Named for two distinguished Colorado judges, the new $36 million justice center will house 29 spacious new courtrooms and offices for the district attorney, city attorney, clerks of court, public defender, probation, jury assembly, and jury commissioner, as well as temporary inmate holding for both adults and juveniles. An underground tunnel will connect the courthouse to the Van Cise-Simonet Detention Center, specifically designed for the safe transport of inmates between the detention center and courthouse.

During the week of the move, district and county court criminal and juvenile cases will be heard on an as-needed or emergency basis. The full docket resumes for all courts on July 6.

Of the new courthouse, Second Judicial District Chief Judge Robert S. Hyatt said:

“We are very pleased to be making the move to the new courthouse. The Lindsey-Flanigan complex stands as a modern symbol of the rule of law with its safety features and technological capabilities helping to ensure effective and efficient administration of justice.”

Matters to be heard at the Lindsey-Flanigan Courthouse include:

  • Misdemeanors, such as DUI and third-degree assaults;
  • Municipal ordinance violations, such as disturbing the peace, loitering, and domestic violence;
  • Building and zoning code violations;
  • Municipal ordinance violations committed by juveniles, such as petty theft, trespass, and curfew violations;
  • Felonies through preliminary hearing;
  • Felony criminal matters;
  • Drug charges; and
  • Juvenile matters.

Courtroom assignments are detailed here.

Matters heard at the Denver City and County Building after the July 6 move include:

  • Traffic violations; and
  • District court civil matters.

District court family matters are currently being heard at 303 W. Colfax, but will return to the City and County Building on August 16. County court civil (including protection orders) and small claims cases will still be heard at 1515 Cleveland Place, Fourth Floor. Parking violations will still be heard in the Parking Magistrate’s Office at 201 W. Colfax, First Floor.

The Lindsey-Flanigan Courthouse was once the former Rocky Mountain News building and was “deconstructed,” rather than demolished, a process utilizing recycled building materials in keeping with earth-friendly construction practices. It features many of the sustainability merits needed to qualify for the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) designation (still pending), including two “green” roofs, systems for efficient lighting and water usage, a naturally ventilated atrium, recyclable item collection, and bicycle storage.

The legal legacies of Judge Benjamin Barr Lindsey and Judge James C. Flanigan are commemorated in the naming of the new courthouse. Judge Lindsey is remembered for establishing the stand-alone juvenile court system in Denver and for fighting the rise of the Ku Klux Klan. Judge Flanigan was the first African American in Colorado to serve as deputy district attorney, Denver municipal court judge, and Denver District Court judge. The courthouse also features the Cisneros Jury Assembly Room, named after Judge Roger Cisneros, a Colorado State senator, WWII veteran, founder of the Mexican American Legal Defense and Education Fund (MALDEF), and the Latin American Research and Service Agency (LARASA). Though retired, Judge Cisneros remains active in legal and judicial activities.

(image source: City of Denver)

Holder v. Humanitarian Law Project: Material Support to Foreign Terrorist Organizations

Editor’s Note: CBA CLE Legal Connection staff track U.S. Supreme Court cases and reactions, but we only post on select cases. We do, however, welcome and encourage members of the Colorado legal community to submit guest posts on recent cases. Please email your submissions to legalconnection@cobar.org.

In Holder v. Humanitarian Law Project, the United States Supreme Court considered the constitutionality of 18 U. S. C. §2339B of the Patriot Act, which outlaws “knowingly provid[ing] material support or resources to a foreign terrorist organization.” According to Eugene Volokh, “material support resources” covers an extensive scope of categories, including “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.”

The Humanitarian Law Project (HLP) argued unsuccessfully that the breadth of the statute made it unconstitutionally vague and such a provision was a violation of free speech and association. The Court disagreed in its 6-3 decision, finding that the speech in question does not prevent the HLP or any other person or group from advocating on the behalf of any designated foreign terrorist organization, even if the speech could potentially benefit the organization; the statute does not even prevent one from becoming a member of any such organization or penalize one for doing so. The only limitation is that such “supportive” speech cannot be engaged in directly with a terrorist group. The statute “cover[s] only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.”

The HLP’s primary objective in advocating for communication with certain classified terrorist groups was to train their members on how to use humanitarian and international law to peacefully resolve disputes or petition the United Nations. However, according to the Supreme Court, this speech is prohibited as speech that “imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge.'” Support of this kind, regardless of the good underlying intentions, “frees up other resources within the organization that may be put to violent ends.”

The response to the ruling has varied greatly. The Center for Constitutional Rights attorney David Cole suggests that the “Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime.” Alex Newman suggests that former president Jimmy Carter “could now be prosecuted for his work,” with the Carter Center, a humanitarian organization which operates to aid in international conflict resolution; Cole believes that “under this ruling, President Jimmy Carter, in monitoring an election in Lebanon, would be providing ‘material support’ to Hezbollah.” Renee Newman Knake posits that the case could even have implications for attorney advice to clients who may be members of designated terrorist organizations.

Others, however, have lauded the Supreme Court’s decision. Andrew C. McCarthy suggests that the decision is common sense; “teaching terrorists how to manipulate the international legal system makes them more efficient, and more deadly.” The good intentions of “transnational progressives” operating under the auspices of humanitarian law have monumental unintended consequences. The Court, he argues, rightfully deferred to the government’s competence and interest in combating terrorism.

While there is certainly no consensus as to the whether the Supreme Court concluded correctly, the Court’s decision brings to an end a controversy that has lasted over a decade and could have lasting implications.

(image source: United States Supreme Court)

Colorado Court of Appeals: Statute of Limitations in Construction Defect Case Triggered by Fire

The Colorado Court of Appeals issued its opinion in United Fire Group v. Powers Electric, Inc. on June 25, 2010.

Summary Judgment—Statute of Limitations—Construction Defect Action Reform Act.

Plaintiff United Fire Group (insurer) appealed the trial court’s summary judgment in favor of defendants Powers Electric, Inc. and Gary J. Powers (collectively, electrician). The judgment was affirmed.

On March 6, 2006, a fire damaged property owned by Metamorphosis Salon (salon). Neither the salon nor its insurer knew what caused the fire. Three weeks later, a fire investigator gave the insurer a report stating that the cause was faulty wiring in an electrical exit sign. The electrician had installed the sign.

Insurer made a series of payments to the salon to compensate for its losses. On March 11, 2008, insurer filed a subrogation claim against the electrician, alleging negligent installation of the exit sign that caused the fire. The electrician moved for summary judgment, alleging that the case was barred by the statute of limitations and that the time began to run on the date of the fire. Insurer replied that the statute began to run either on the date insurer received the investigator’s report or the date the salon cashed the insurance payments. The trial court granted the electrician’s motion for summary judgment. Insurer appealed.

This is a construction defect case brought under the Construction Defect Action Reform Act. The parties agreed such cases are governed by a two-year statute of limitations. They also agreed that the two-year period begins to run when a claimant “discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately causes the injury.” They also agreed that the improvement in this case was the electrician’s installation of the exit sign.

Insurer argued it could not determine the cause of the fire until the investigator provided his report and, therefore, could not have discovered in the exercise of reasonable diligence the physical manifestation of the defect in the exit sign installation. The electrician countered that the fire was the physical manifestation of the defect; thus, insurer could have discovered in the exercise of reasonable diligence that there had been a fire on the day it occurred. The Court of Appeals agreed with the electrician and affirmed the summary judgment.

The Court also rejected the insurer’s argument that, as a subrogee, it did not suffer any injury until the salon cashed the insurance payments. The Court held that case law is clear that the insurer stands in the shoes of its insured and has no greater rights than the insured.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.

Colorado Court of Appeals: Customers of Adult Video Arcades Subject to Sales Tax

The Colorado Court of Appeals issued its opinion in Romantix, Inc. v. City of Commerce City on June 25, 2010.

Summary Judgment—Sales and Use Tax.

The City of Commerce City (City) appealed the district court’s summary judgment in favor of plaintiff Romantix, Inc. (Romantix). The judgment was reversed.

Romantix operates an adult video arcade in the City. Customers are given the opportunity to view various films. They can purchase prepaid cards that enable them to activate a “film preview” or an “arcade” feature in a private room on the premises using equipment furnished by Romantix.

In the film preview option, the customer chooses a film to watch inside a private room. The customer can fast-forward, adjust sound, and start and stop the viewing. The charge is based on the size of the room. In the arcade option, the customer may view any of approximately fifty film channels. Charges are $5 for the first twenty minutes and 25 cents for each additional minute. The customer can switch channels, fast-forward, adjust sound, and start and stop the viewing.

Romantix collected City sales tax from its customers based on the price the customer paid for the prepaid cards for tax years 2005, 2006, and 2007. It later sought a refund. Following a hearing, the City’s hearing officer determined no refund was owed. Romantix appealed to the district court under CRS § 29-2-106.1(8)(a). The court granted summary judgment to Romantix.

On appeal, the City argued that the transactions are taxable for several reasons. The Court of Appeals agreed, holding that the transactions constitute a grant of a license to use tangible personal property and therefore are taxable under CRS § 20-4-1 of the City’s Sales and Use Tax Code (Code). The film-viewing equipment falls under the Code’s definition of “tangible personal property,” and the viewing falls under the Code’s definition of “use.” Further, customers effectively acquire a license to exercise a degree of control over the equipment to customize their viewing experience. Accordingly, the judgment was reversed and the case was remanded to the district court with directions to grant the City’s cross-motion for summary judgment.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.

Colorado Court of Appeals: Petitioners in Proximity of Proposed Drilling Site Have Standing to Request Permit Hearings

The Colorado Court of Appeals issued its opinion in Grand Valley Citizens’ Alliance v. Colorado Oil and Gas Conservation Commission on June 25, 2010.

Standing—Entitlement to an Administrative Hearing.

Plaintiffs appealed a district court order dismissing their claim for a hearing before the Colorado Oil and Gas Conservation Commission (Commission). The order was reversed.

Plaintiffs are two organizations and four individuals. They collectively own, reside on, and use land in Garfield County, near Rulison. This area was the site of a 1969 federal agency experiment dubbed Project Rulison. The project involved detonation of a large nuclear device 8,400 feet below ground to determine whether the explosion could stimulate natural gas production. Nothing marketable was produced; however, the liberated gas contained radioactive matter, and subsurface toxic and radioactive contaminants are still present.

In the late 1990s, companies began seeking to drill in the area. In 2004, the Commission ruled that a hearing would be required for any permit application involving drilling within a half mile of the blast site. In 2008, EnCana Oil & Gas (EnCana) applied for permits to drill wells less than three miles from the blast site. Because the proposed wells were beyond the half-mile radius, a hearing was not automatic. Plaintiffs petitioned the Commission for intervention and a hearing on EnCana’s applications. The Commission Director denied the hearing requests and approved the permit applications. Plaintiffs sued, alleging they were statutorily entitled to a hearing. The district court granted EnCana’s motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. The Court of Appeals reversed, holding plaintiffs had standing and are entitled to a hearing.

Colorado has a relatively lenient standing test: (1) the plaintiff must have suffered an injury-in-fact; and (2) this harm must have been to a legally protected interest. The Court held that the denial of plaintiffs’ claimed statutory right to a hearing to contest the permit application was a cognizable injury (procedural in nature). In addition, the allegation that the proposed drilling would threaten substantive injury to land they owned, resided on, and used, also conferred standing (substantive in nature).

Plaintiffs’ claimed right to a hearing is provided in CRS § 34-60-108(7), which mandates a hearing on the filing of a petition requesting one concerning any matter within the jurisdiction of the Commission. The Court held this language clearly entitled plaintiffs’ to a hearing.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.

Colorado Court of Appeals: Collateral Source Statute Does Not Abrogate the Common Law Rule Prohibiting Evidence of Collateral Sources

The Colorado Court of Appeals issued its opinion in Crossgrove v. Wal-Mart Stores, Inc. on June 25, 2010.

Personal Injuries—Collateral Source Rule.

In this personal injury case, plaintiff appealed the judgment for damages entered on a jury verdict against defendant Wal-Mart Stores, Inc. (Wal-Mart). The judgment was vacated in part and the case was remanded.

Plaintiff was struck on the head by a manually operated overhead garage door while delivering cookies to a Wal-Mart store. Based on a negligence theory, he sued Wal-Mart for injuries, claiming in pertinent part more than $240,000 in billed medical expenses. The trial court allowed Wal-Mart to present evidence to the jury that plaintiff’s medical providers accepted $40,000 in full satisfaction of his medical bills. Plaintiff also testified to the full amount ($242,293.86) billed by his providers, as well as his loss of income ($101,520). The jury returned a verdict for plaintiff, awarding him a total of $50,000 for economic losses and an additional $27,375 in noneconomic damages. The jury also determined plaintiff was 20 percent at fault. The court thereafter reduced the award by the 20 percent, plus the $40,000 paid by third parties.

On appeal, Wal-Mart contended that the collateral source rule is not implicated by presentation of the discounted amount paid in satisfaction of plaintiff’s medical bills, as long as the source of payment is unidentified. Colorado’s common law collateral source rule is not limited to protecting the cash amounts paid to providers for services rendered. Evidence of the amount paid by third-party payors and, conversely, the amount discounted (or written off) from the billed amount due under a contract between the third-party payor and the provider, is inadmissible under the common law collateral source rule even to show the reasonable value of services rendered, because these payments and discounts constitute collateral sources. Further, the collateral source statute does not abrogate the common law rule prohibiting evidence of collateral sources at trial as it applies only after the verdict is received from the fact finder. Therefore, the trial court erroneously admitted collateral source evidence. The judgment was vacated as to the amount of damages, and the case was remanded for a new trial on the issue of damages, after which the trial court shall adjust the verdict in accordance with the collateral source statute.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 25, 2010, can be found here.