August 22, 2014

Tenth Circuit: Opinions, 8/2/10

The Tenth Circuit on Monday issued two published opinions and no unpublished opinions.

Published

In Braxton v. Zavaras, the Court affirmed the district court’s granting of Respondents’ motion to dismiss. Petitioners claimed that the statute of limitations should be tolled while administrative remedies were being exhausted for their claims concerning civil rights violations during a public strip search at a correctional facility. The Court disagreed, finding that the statute of limitations is not automatically tolled while pursuing administrative remedies; additionally, equitable tolling was not appropriate as Petitioners have not diligently pursued their claims.

In McKeen v. United States Forest Service, the Court affirmed the district court’s granting of summary judgment for Respondent United States Forest Service, and found the remainder of Petitioner’s claims moot. Petitioner claimed that the Forest Service acted arbitrarily and capriciously in permanently canceling 25% of his grazing permit and in issuing its environmental assessment decision notice. However, the Forest Service has discretion as to the issuing and limitation of permits, and Petitioner’s repeated noncompliance with permit regulations served as adequate grounds for canceling a portion of Petitioner’s grazing permit.

Judge Evaluations Available Online August 3

Evaluations and recommendations for the 134 Colorado justices and judges up for retention in this fall’s general election will be available for public review on Tuesday, State Judicial announced yesterday.

The State Commission on Judicial Performance, together with local judicial evaluation commissions, surveyed over 63,000 Coloradoans having professional encounters with members of the state’s judiciary to evaluate the justices and judges on their “integrity, legal knowledge, communication skills, judicial temperament, and administrative performance.” The commissions reviewed these surveys alongside data from other sources to form the basis of their recommendation for retention for individual justices and judges.

The Judicial Performance Review for each judge is available on the State Commission website as of the afternoon of Tuesday, August 3. Also available online are sample questionnaires used in the commissions’ survey, FAQs, and relevant statutes and rules pertaining to the retention of Colorado’s judiciary.

20th Anniversary of Americans with Disabilities Act Commemorated with Revisions

Commemorating the 20th anniversary of the Americans with Disabilities Act (ADA), U.S. Attorney General Eric Holder in late July authorized revisions to federal regulations pertaining to the “accessible design” of public buildings and facilities.

The revisions affect Title II of 28 C.F.R. Part 35 and Title III of 28 C.F.R. Part 36, adopting particular design standards in recreational and public facilities, as well as making changes to the 1991 Standards. Fact sheets and the full text of the revisions are available on the U.S. Department of Justice’s ADA page.

The revised regulations will take effect six months after publication in the Federal Register.

The landmark Act was signed into law by President George H.W. Bush on July 26, 1990, and guarantees civil rights protections to Americans with disabilities, ensuring equal opportunity to employment, government services, public accommodations, commercial facilities, transportation, and telecommunication.

Todd L. Taylor Appointed to Weld County’s 19th District Court Bench

Gov. Ritter has appointed Greeley criminal defense attorney Todd L. Taylor to succeed retiring Judge Gilbert A. Gutierrez on the Nineteenth Judicial District Court bench, the governor’s office announced Monday.

Todd was one of three finalists recommended to the governor by the Nineteenth Judicial District Nominating Committee, which met in mid-July to vet and interview applicants for the judgeship. He is a longtime Weld County resident and previously served as a municipal judge for the City of Gilcrest and a deputy district attorney for the Nineteenth Judicial District. He is currently a partner at the Greeley law firm of Taylor & Rapp, LLP, where he specializes in trial law. Todd’s appointment is effective August 22.

Judge Gutierrez announced his retirement in June, after nearly eight years on the bench.

Supreme Court Committee Rewriting Criminal Jury Instructions into Plain English

When faced with reading legal texts, many non-lawyer end users find that too much gets lost in translation from English to legalese, with the result that they often comprehend as little about the law after their reading as before. A subcommittee of the Colorado Supreme Court’s Jury System Standing Committee, along with the Judicial Advisory Council, hopes to throw that in reverse by rewriting into user-friendly plain English the state’s Criminal Jury Instructions.

On behalf of Plain Language Subcommittee tasked with drafting the rewrite, Supreme Court Justice Michael L. Bender explains:

Nationally, a broad movement has been underway to rewrite jury instructions using plain language to eliminate ‘legalese’ that can generate questions and confusion for jurors. While Colorado has been a leader in jury reform, until now Colorado had not launched a focused effort to rewrite its criminal jury instructions in plain language.

Studies have shown that rewriting instructions into plain language can lead to vastly improved comprehension, while retaining legal accuracy. Many states, including Arizona, California, Utah, and Washington have successfully rewritten their criminal jury instructions into plain language.

The subcommittee has completed its redraft of Chapters 1 and 2 of the Criminal Jury Instructions, with more chapters in progress. The complete 2008 Colorado Jury Instructions are available for free at State Judicial, as we reported in March.

Loyola legal scholar Peter M. Tiersma offers these thoughts on the plain English movement as it relates to “statutory areas that are of intense interest to the public,” examples of which:

… include the criminal law, as well as laws relating to the family, divorce, community property, inheritance, employment, civil rights, landlord-tenant relations, and consumer protection. Surely ordinary citizens ought to be able to understand the rights conferred and obligations imposed by such statutes. … [M]ost criminal statutes have a dual audience: members of the public and adjudicators. … [A]djudicators can tolerate the complexity that is inherent in most current criminal codes but … members of the public have a right to a criminal code that they can understand. In essence, there ought to be two criminal codes, one for the public and one for judges.

Colorado AG’s Office, FTC Instruct Small Businesses in Safeguarding Personal Data

Data security breaches in the private sector have become so commonplace in the digital age that they scarcely shock or make headlines anymore — much to the chagrin and inconvenience of those whose sensitive data has been targeted. But there is much that businesses (including small law firms and solo practitioners) can do to protect their data from malicious or inadvertent loss, and the Colorado Attorney General’s Office and the Federal Trade Commission (FTC) want you to know about it. They’ve collaborated on a free pamphlet, “Protecting Personal Information: A Guide for Business” (pdf), available for download.

The pamphlet summarizes five steps an entity should take to create and maintain a data-protection plan, each step with a wealth of details within.

Take stock. Know what personal information you have in your files and on your computers.
Scale down. Keep only what you need for your business.
Lock it. Protect the information that you keep.
Pitch it. Properly dispose of what you no longer need.
Plan ahead. Create a plan to respond to security incidents.

The FTC website features an interactive tutorial instructing on these measures.

Earlier this month, we reported on related news of interest to business owners: how to safeguard a business entity’s identity against out-of-state crooks hoping to capitalize on its good credit toward malicious ends.

Gilpin County’s Judge Frederic Rodgers Departing the Bench, Nominating Commission Seeks Successor

Gilpin County Court Judge Frederic B. Rodgers announced his retirement, effective January 11, 2011.

The seven-member First Judicial District Court Nominating Commission will convene at the Gilpin County Justice Center in Black Hawk on Monday, August 30, to vet and interview applicants. Following the interviews, the Commission will recommend finalists to Gov. Bill Ritter, who is expected to announce his nominee within the 15-day period proscribed by the Colorado Constitution.

Situated in Colorado’s high country, Gilpin County is home to just over 5,000 residents and incorporates the limited-stakes gambling municipalities of Black Hawk and Central City. The Gilpin County Court judgeship is a part-time (55 percent) position, for which the annual salary is $67,686.85. Judges at the county court level receive a provisional, two-year appointment by the governor, after which they are retained by voter approval every four years. They preside over a mixed docket of traffic, misdemeanor, and civil cases, as well as felony cases through the preliminary hearing stage. Judge Rodgers’s successor will begin his or her term in January 2011.

Registered electors in Gilpin County who are high school graduates or have attained its equivalence (via a GED) are eligible to apply for the judgeship. Detailed information about the First 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 Nathan B. Coats, 101 W. Colfax Ave., Eighth Floor, no later than Wednesday, August 18, at 3:00 p.m.

Judge Rodgers came to the Gilpin County Court bench in 1986, upon his appointment by Gov. Richard Lamm. From 2005 to 2007, he also served as a probate judge in Jefferson County. Prior to his work in the First Judicial District, Judge Rodgers was a magistrate in the Denver Juvenile Court, a chief deputy district attorney in Denver, and one of the first U.S. Army military judges in Vietnam during the Vietnam War.

(image source: State Judicial)

Resource: Enrollments Now Accepted for State-Issued Coverage of Uninsured Coloradoans with Pre-Existing Conditions

If you work in a practice area serving a population with specialized healthcare needs, your clients may be relieved to learn of a new healthcare coverage plan now enrolling uninsured Colorado residents with pre-existing conditions.

GettingUSCovered is part of the national healthcare reform mandated by the recent passage of the Patient Protection and Affordability Act of 2010. It is a statewide program funded through federal dollars and member premiums, and gives previously “uninsurable” Colorado residents affordable options for obtaining heathcare insurance coverage.

Applications for enrollment are processed on a first-come, first-served basis, with coverage going into effect on September 1. For more information about eligibility requirements or to complete an application, go to GettingUSCovered.org.

Applicants who are ineligible for coverage under the GettingUSCovered plan may wish to apply coverage through CoverColorado. Both plans are high-risk pools, but CoverColorado accepts applicants who have had healthcare coverage within the past six months, while GettingUSCovered is limited to those without healthcare coverage in the previous six months. A brief questionnaire appears on both websites to help individuals determine which program is appropriate for them. Neither program is income dependent or needs based for qualification.

Local Bankruptcy Rules Undergo Light Housekeeping

The Local Bankruptcy Rules, Forms and Appendix were recently updated to reflect “minor corrections and clarifications,” pursuant to General Procedure Order 2010-1. The changes were effective July 1.

You may view all 243 pages of the amended Rules and Forms document or take a shortcut by checking out this six-page wrapup.