November 23, 2017

Archives for September 20, 2011

State Judicial Issues Revised Certification of Indigency Form

The Colorado State Judicial Branch has issued a revised form for a legal service provider to certify that their client is indigent. Once certified as indigent, the client is eligible to have most court-related fees waived. Practitioners should begin using the new form immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download the new forms from State Judicial’s individual forms pages, or below.

Filing Fees

  • JDF 203 – “Certification of Determination of Indigency” (revised 8/11)

Revised Finding and Order Form to Waive or Defer Filing Fees Issued by State Judicial

The Colorado State Judicial Branch has issued a revised finding and order form to be used for granting eligibility to proceed without the payment of a filing fee, to have the filing fee paid in installments, or to deny eligibility to proceed without payment. Practitioners should begin using the new form immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download the new forms from State Judicial’s individual forms pages, or below.

Filing Fees / Domestic/Family

  • JDF 206 – “Finding and Order Concerning Payment of Fees” (revised 8/11)

[UPDATED] Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena; Comments Sought

Editor’s Note: State Judicial posted a revised version of the proposed changes in October. The links below now direct readers to the updated recommendation.

The Colorado Supreme Court is requesting written public comments by any interested person on proposed changes to Crim. P. 17(h). The Honorable Judge Morris Hoffman of the Denver District Court has written a letter that summarizes the proposed revisions to the rule and outlines arguments for and against the change, which adopts the common understanding that judges have the power to issue bench warrants when witnesses fail to appear for a criminal trial.

Click here to review the changes to the rule and the red line edits.

Click here to read Judge Hoffman’s letter regarding the recommended changes.

The Advisory Committee on Rules of Criminal Procedure has recommended two changes to Crim. P. 17(h), which deals generally with a subpoenaed witness’ failure to appear at a trial or hearing:

  1. A clarification that such a failure to appear is indirect contempt that may be dealt with under C.R.C.P. 107; and
  2. An addition codifying, but also limiting, what many trial judges across the state have always believed was their inherent power to issue bench warrants when witnesses fail to appear for a criminal trial.

The Committee recommends four limitations to this power to issue arrest warrants:

  1. That it be limited to trials, and not apply to hearings;
  2. That the arrested witness must be brought directly and immediately to court;
  3. That a bond be immediately set; and
  4. That the authority to issue the bench warrant automatically expires, and any already-issued warrant automatically is vacated, when the trial is either continued or concluded.

Because the Committee’s recommendations were not unanimous, Judge Hoffman outlined the process by which the Committee came to their conclusions. Due to this conflict, however, it is important that comments regarding the changes be submitted to the Colorado Supreme Court for their review by Wednesday, November 30, 2011 at 5:00 pm.

An original plus eight copies of written comments concerning this rule change should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 W. Colfax Ave., Suite 800, Denver, Colorado 80202.

The Arab Spring: DU Hosting Timely International Law Conference

Whether or not one is interested or engaged in international news or current events, it is nevertheless hard not to be captivated by the recent revolts and democratic movements in the Middle East and North Africa.  Day after day since last spring, the media and the world have watched, captivated, as protests turned into full scale revolutions from Tunisia, to Egypt, and then to Libya, Syria, Bahrain, and Yemen.  And, the revolts have left both experts and laypersons in the United States and around the world to wonder what these revolutions mean for world democratization, human rights, national security, and nations’ sovereignty and geopolitical interests.

Each nation to be touched by the Arab Spring has reacted differently—whereas the regimes in Tunisia, Egypt, Libya, and Syria were unable to avert violence when their people demonstrated, countries like Morocco and Jordan have been able to avert overthrow of their regimes by instituting some of the demanded reforms.  The revolutions have also forced regional players such as Turkey, Israel, and Iran to react, each of them moving to solidify their respective positions vis-à-vis the new governments.

American reaction to the revolts has also been inconsistent.  The Obama administration has been mostly supportive of the revolts, going so far as to use military action in Libya.  However, in places like Syria, and more poignantly in Bahrain, the United States has not publicly supported the movements, or they have given only lukewarm support.

On Saturday November 5, 2011 from 8:00 to 5:00 pm, the Ved Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law will host its 44th Annual Leonard v.B. Sutton Colloquium in International Law covering this timely topic.

“The Arab Spring and its Unfinished Business: Law and Policy Issues.”

The conference, which is an all-day event, will attempt to address questions such as:

  • What democracy will look like post-revolution in countries such as Libya, Bahrain, Syria, Tunisia, Morocco, and Yemen;
  • What the Arab Spring means for our own interests; and
  • Whether committing resources for air strikes in Libya is legal, ethical, or appropriate.

The first panel will give some background on the Arab Spring, covering the history and politics of the region.  The second panel will discuss the International Human Rights implications posed both by the revolutions themselves and by outside responses, including the NATO action against Libya.  The third panel will cover the implications for United States foreign policy going forward.

Additionally, two notable speakers will provide keynote addresses:

  • Mr. Edward Luck, United Nation Assistant Secretary General and Special Adviser to the United Nations Secretary General on issues pertaining to the legal “Responsibility to Protect” will be providing the morning’s keynote address.
  • Senator Gary Hart, a former U.S. Senator for the State of Colorado , best-selling author, and expert on national security issues, will be providing the afternoon keynote address.

Colloquium panelists include Professor David Aronofsky from the University of Montana, Professor Orit Bashkin of the University of Chicago, Professors Jack Donnelly and Nader Hashemi of the University of Denver’s Josef Korbel School of International Studies, Professor Ved P. Nanda of the University of Denver Sturm College of Law, Professor Paul Williams of American University, and Lt. Col. Rachel VanLandingham of the United States Air Force Academy.

The Leonard v.B. Sutton Colloquium, which is an over-40-year-old tradition for the International Legal Studies Program at the University of Denver Sturm College of Law, was named for a former Chief Justice of the Colorado Supreme Court who was a close friend and longtime supporter of the International Legal Studies Program.

Held annually since 1967, the Colloquium unites students, faculty, and members of Denver’s legal community. Well-known authorities and foreign dignitaries present lectures and panel discussions on current international issues. The resulting papers are then collected into a special issue of the Denver Journal of International Law and Policy. As is the case with most of the Nanda Center’s programming, student members of the International Law Society and Denver Journal of International Law and Policy collaborate with staff of the Ved Nanda Center for International and Comparative Law to coordinate all aspects of the program—from speaker invitations to publication of the papers.

Click here to Register for the event. For more information, please contact Karlyn K. Shorb, Administrative Director of the Ved Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law. Email: kshorb@law.du.edu. Phone: 303-871-6655. CLE Credits pending.

Want to learn more about legal issues surrounding the Arab Spring, or other relevant legal issues in international law?  Visit the Ved Nanda Center’s comprehensive International Law related blog: The View From Above: International Law at 5,280 Feet.

Expanded Media Coverage in Colorado Courts, Continued

by Rudy E. Verner, Steven D. Zansberg

This article provides an overview of the constitutional basis for open courts, Colorado’s expanded media coverage rule, and the history of television and other news media gaining access to courtrooms. It also discusses the use of blogging, tweeting, and other forms of new media to report on court proceedings. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 39) and will publish in two CBA-CLE Legal Connection blog posts. The first part of the article can be found here. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Expanded media coverage (EMC) refers to the news media’s use of cameras and microphones to record judicial proceedings, such as a trial, a sentencing hearing, or other court proceeding. Although courtroom proceedings presumptively are open to the public and members of the press, media organizations are required to get permission from the judge before gaining access for EMC. Private attorneys, prosecutors, and state trial judges will benefit from understanding how the EMC process works and the standards governing EMC.

Television Coverage of Federal Court Proceedings

The U.S. judiciary has had a longstanding prohibition on television or other electronic coverage of federal court proceedings by the media. However, recent efforts have been undertaken to broaden access to federal courts, including introduction of a bill in the U.S. Senate to permit television coverage of all open sessions of the U.S. Supreme Court,35 and a decision by the U.S. Judicial Conference to expand a two-year pilot program that made audio recordings of court proceedings available through Public Access to Court Electronic Records (PACER) at a handful of federal district and bankruptcy courts nationwide.36

In 2010, the Ninth Circuit Court of Appeals allowed C-Span to televise oral argument in the Proposition 8 case, the legal challenge to California’s voter-approved ban on same-sex marriage. Beginning in July 2011, fourteen federal trial courts are taking part in a three-year pilot program, which will evaluate the effect of cameras in courtrooms.37 The pilot program—in which Colorado was not chosen to participate—involves participation by more than 100 U.S. district judges, including judges who favor cameras in court and those who are skeptical of coverage.38 Districts volunteering for the pilot program must follow guidelines adopted by a committee of the U.S. Judicial Conference and the program will be limited to civil proceedings in which the parties have consented to having their cases recorded.39

Experience Under the EMC Rule

The first case in which cameras were permitted to cover a criminal trial in Colorado occurred during the experimental program that predated adoption of the prior EMC Canon. In October 1984, Boulder County District Judge Murray Richtel presided over the prosecution of Danny Arevalo, who was convicted of murdering Michael Manning, the three-year-old son of his girlfriend. In the twenty-six years since the Arevalo trial, television stations have been granted access to broadcast portions of criminal and civil trials statewide in Colorado, both live and on videotape. Moreover, many high-profile trials have been televised, along with numerous sentencing hearings, advisements, and arraignments. A number of these cases were appealed, but none has been overturned on the basis that EMC was granted.

In one recent example, Weld County District Court Judge Thomas J. Quammen granted the media’s request for EMC of the sentencing of Vance Fulkerson, the University of Northern Colorado professor who pleaded guilty to making surreptitious video recordings of students using the bathroom in his home. In his ruling, Judge Quammen explained why, in his view, granting EMC coverage of a sentencing hearing furthered the same objectives as opening other judicial proceedings, such as trials and arraignments, to public attendance:

The fact that we have a TV camera or a newspaper representative here doesn’t change the public nature of these proceedings. . . .

Anybody can come in here and observe what is happening. This isn’t my court, this belongs to the people of the State of Colorado. . . .

The People have a right to know not only what the Court does, they have a right to know how the Court does it, they have a right to know how their prosecutors handle cases, and this is up for public review, up for public scrutiny. . . .40

Judge Quammen also explained why the sentencing hearing in that case should not be closed to the public, as the defendant had requested, and again described the role that EMC plays:

Only in very, very defined areas do we take the drastic step of closing a courtroom.

Now the Court is satisfied that there has not been a sufficient showing that there is a clear and present danger to warrant that extreme remedy in this case. . . .

[A]s the Court indicated, what happens here is public information and the people have a right out there to draw whatever conclusions that they want to about what happened, why it happened, and whether it should have happened or not have happened, but they can’t make those decisions, informed decision[s], unless they are informed.

And so the Court finds that expanding the media coverage is not going to interfere with the rights of the parties to be treated fairly and have a fair trial; and in this case, a fair sentencing.41

Numerous other criminal proceedings have been opened to EMC in recent years. For example:

> In 2009, Chief Judge Stephen J. Schapanski of the Larimer County District Court granted EMC for the sentencing of Richard Heene, the Fort Collins man who duped police, the Federal Aviation Administration, and the public into believing that his son had accidentally been carried away by an experimental balloon in an attempt to gain publicity for a reality show pitch.

> In 2008, Judge John Madden II of the Denver District Court granted EMC in the trial of Jon Philips, the custodial father charged with child abuse resulting in death for the forced starvation of 7-year-old Chandler Grafner.

> Former Weld County Chief Judge Roger A. Klein granted EMC in People v. Nelson, the murder trial of the Greeley police dispatcher charged with killing the wife of a police officer with whom she was having an affair.

> In another high-profile case, Denver District Court Judge Christina Habas granted EMC for the sentencing of Lisl Auman, the woman who pleaded guilty to accessory to first-degree murder in the slaying of a Denver police officer, and whose case prompted a national debate on the limits of the felony murder rule.

In the civil arena:

> Retired Chief Judge Larry Naves of the Denver District Court granted the medias request to show live coverage of the trial in Ward Churchill’s wrongful termination and First Amendment retaliation suit against the University of Colorado.42

> A judge has granted EMC in a state enforcement action under the Colorado Consumer Protection Act,43 a suit against the Colorado Rockies for the right to distribute team programs on the sidewalk in front of Coors Field,44 and a defamation and invasion of privacy case brought by a manager of the Denver Athletic Club.45

> Additionally, as noted above, the Colorado Supreme Court has allowed arguments to be televised in Lorenz v. State,46 a case involving the constitutionality of a statute prohibiting public officials from holding interests in gaming establishments.

> The Colorado Court of Appeals permitted television coverage of the arguments in People v. Kriho,47 a case in which a juror was held in contempt for failing to disclose information during voir dire, and People v. Auman,48 an appeal involving the applicability of the felony murder rule to a suspect in police custody.

Denial of EMC

Courts periodically will exercise their discretion to deny EMC requests or impose additional restrictions on coverage to protect a litigant’s rights. Sometimes, the denial or restriction is motivated by a professed concern for the safety of the parties or witnesses. For example, in advance of the trial of Willie Clark, the gang member convicted of murdering Denver Broncos cornerback Darrent Williams, Judge Christina Habas denied EMC for still and video cameras, citing concerns over the safety of witnesses (including one in the federal witness protection program) but granted access for microphones and audio transmission of the trial.49

The EMC Rule in Practice

Practitioners faced with a request for EMC should consult the standards for granting coverage in subsection (a)(2) of the EMC rule50 and the procedures for filing an objection in subsection (a)(6).51 Because the facts and circumstances of criminal matters tend to vary significantly, there are no standard grounds for opposing EMC. In the past, defendants have argued that photographs or video showing them entering a not guilty plea or appearing in prison clothes during an advisement or arraignment could taint the pool of potential jurors and substantially prejudice their right to a fair trial. Also, concerns are frequently raised that the presence of cameras will have a chilling effect on a witness’s willingness to testify openly and fully about the events at issue. Finally, counsel has objected on grounds that allowing video coverage will cause opposing counsel to “play to the camera” and foster a “circus atmosphere” by encouraging inflammatory sound bites and histrionic performances, above and beyond what would be done for the benefit of the seated jurors and others attending the trial.

By and large, such grounds have not been deemed a sufficient basis to deny EMC. Judges have on occasion imposed limitations on EMC by, for example, prohibiting the media from recording the testimony of minors or sexual assault victims. However, judges have not required the news media’s representatives to be present during the entire course of a trial, rejecting claims that such a requirement was necessary to avoid the impression on the part of jurors that a certain witness’s testimony should be afforded greater weight than others.

New Media Coverage of Judicial Proceedings

In advance of the Supreme Court’s 2010 rule change, there had been some preliminary discussion about extending the EMC rule to Blackberries, iPhones, and other electronic devices that allow live text transmission—but not video, photographs, or audio from the courtroom. Reporters and members of the public increasingly use Twitter, blogs, and other forms of new media to report on judicial proceedings. The Supreme Court did not extend the Rule 2 requirements to these relatively novel methods of reporting. Therefore, tweeters, bloggers, and other reporters sending live text transmissions generally do not need to seek permission from the court before reporting on a trial or hearing. However, such persons should be aware of any standing orders from the court in a given case regarding the use of such technology.

Recent experience with live text transmission in Colorado courtrooms has been positive. For example, the Greeley Tribune blogged live from the trial of Shawna Nelson, the Greeley police dispatcher convicted of killing the wife of a police officer with whom she was having an affair. The Tribune reportedly experienced a record number of hits to its website during the trial,52 bolstering the role of blogging as an effective tool for reporting on high-profile trials. A number of other recent trials have been successfully covered by live blogging from the courtroom, including the trial concerning the firing of CU professor Ward Churchill and, from a “spillover” courtroom, the murder trial of Willie Clark.

Conclusion

EMC in Colorado has been successful for more than two decades; as a result, Colorado citizens have had the opportunity to observe first-hand the workings of the state’s judicial system. Colorado’s recently re-adopted EMC rule facilitates the people’s constitutional right to “attend” judicial proceedings and does not specifically require users of new media technology to gain permission from the judge to report on courtroom proceedings. As video and audio signals continue to be disseminated over more convenient and accessible platforms—from streaming video over websites to mobile digital television—the citizens of Colorado will have additional opportunities to monitor the conduct of their government, ensuring that the Founders’ vision for a transparent and account able system of justice is not lost.

Notes

35. See Bill to Permit the Televising of Supreme Court Proceedings, S. 446, 111th Cong. (2010).

36. “Judicial Conference Moves Federal Courts Toward More Public Access,” available at www.law.com/jsp/article.jsp?id=1202446305242.

37. “14 U.S. Courts, Not Colorado, Will Pilot Courtroom Cameras,” available at www.lawweekonline.com/2011/06/14-u-s-courts-not-colorado-will-pilot-courtroom-cameras.

38. Id.

39. Id.

40. People v. Fulkerson, Case No. 09-CR-1187, 38 Med.L.Rptr. (BNA) 1513 (Weld Cty. Dist. Ct., March 3, 2010) (reporter’s transcript of motions hearing on file with authors).

41. Id.

42. Churchill v. Univ. of Colorado, Case No. 06-CV-11473 (Denver Dist. Ct., Nov. 24, 2010).

43. Martinez, supra note 18.

44. Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d 266 (Colo. 1997) (Judge Herbert Stern III).

45. Roberts v. Scheriff, July 1995 (Judge Edward Simons).

46. Lorenz v. State, 928 P.2d 1274 (Colo. 1996).

47. People v. Kriho, 996 P.2d 158 (Colo.App. 1999).

48. People v. Auman, 67 P.3d 741 (Colo.App. 2002), rev’d, 109 P.3d 647 (Colo. 2005).

49. Judge Habas also imposed a strict prohibition on photography outside the courtroom and in the hallways of the fourth floor of Denver’s City and County Building while court was in session. Although blogging and tweeting were prohibited from the courtroom, in this case they were permitted from the nearby spillover courtroom. Judge Habas later authorized still and video photography EMC for Willie Clark’s sentencing hearing.

50. See Rule 2(a)(2)(A) to (C).

51. See Rule 2(a)(6).

52. See Machuca, “Web readers can’t get enough of Shawna Nelson trial,” The Tribune (March 3, 2008), available at www.greeleytribune.com/article/20080303/NEWS/329307688&parentprofile=search.

Rudy E. Verner is a civil litigator at Berg Hill Greenleaf & Ruscitti L.L.P. in Boulder. Steven D. Zansberg is a civil litigator at Levine Sullivan Koch & Schulz, L.L.P. in Denver.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

State Board of Human Services Amends Home Care Allowance and Adult Foster Care Rules

The Colorado State Board of Human Services has proposed rules to implement requirements of HB 10-1146, effective January 1, 2011, regarding Home Care Allowance and Adult Foster Care. These proposed rules focus on three elements:

  • Recipients of Supplemental Security Income to receive a full Home Care Allowance benefit;
  • Changes existing eligibility rules for dual recipients of Home Care Allowance, Adult Foster Care, and other long-term care programs; and
  • Changes in responsibilities of the county financial technicians in relation to the Home Care Allowance and Adult Foster Care programs.

The changes implemented in HB 10-1146 required changes to the Colorado Benefits Management System that could not be completed until January 2012.  Therefore, there has been a delay to implement for one year from the effective date of the bill.

Currently, any Home Care Allowance applicants or recipients can be eligible to receive both Home Care Allowance benefits and Home and Community Based waiver services.  Due to changes in statute, the rules will reflect that recipients will not be allowed to receive benefits from both the Home Care Allowance and Home and Community Based Services simultaneously.  This will require current recipients to choose a single benefit program.

As of January 1, 2011, eligibility will be expanded to include Supplemental Security Income (SSI) recipients who receive the maximum SSI benefit.  It is anticipated that many new persons will benefit from the rule changes, such as the developmentally disabled persons who are currently on waitlists for HCBS waiver services and who may be able to utilize Home Care Allowance in the interim.

A hearing on the proposed rules will be held on Friday, November 4, 2011 at the Colorado Department of Human Services, 1575 Sherman Street, Conference Room 4A/B, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed rules including red line edits can be found here. Further information about the rules and hearing can be found here.

State Board of Human Services Modifies Resource Limits for Food Assistance Program

The Colorado State Board of Human Services has amended the resource limits for the Food Assistance Program. This rule change is seen as necessary in order for the Colorado Food Assistance Program to respond to a recent memorandum, dated August 25, 2011, regarding an increase in the resource limits for the Program.

Based on the recent memorandum, the resource limit for households that contain at least one member who is elderly and/or is a person with a disability has increased from $3,000 to $3,250.  The only households that this rule change would apply to would be those households that are eligible for the Food Assistance Program under standard eligibility rules, as laid out in rule section B-4011.1, and who meet the criteria of having at least one member who is elderly and/or is a person with a disability.

Households that do not contain a member who is elderly and/or is a person with a disability and who are eligible under standard eligibility rules will continue to meet the $2,000 resource limit.  Effective March 2011, roughly 97% of all households eligible for the Food Assistance Program are not subject to an asset test due to the implementation of expanded categorical eligibility.

The rule change also seeks to modify the current language at section B-4224 to remove the specific dollar amounts for the resource limits because the resource limit will now be indexed to inflation; therefore, there is potential for the limit to change every October, which is the beginning of the Federal Fiscal Year. The annual adjustment in the resource limit, including the one in October 2011, is a national requirement that all states much adhere to.

A hearing on the amended rules will be held on Friday, November 4, 2011 at the Colorado Department of Human Services, 1575 Sherman Street, Conference Room 4A/B, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed rules including line edits can be found here. Further information about the rules and hearing can be found here.

Tenth Circuit: HHS Required to Contract with Tribe for Self-Determination of Clinic with Full Support Costs

The Tenth Circuit Court of Appeals issued its opinion in Southern Ute Indian Tribe v. Sebelius on Monday, September 19, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. This is the second appeal in litigation arising from the Secretary of Health and Human Services’ decision not to enter into a self-determination contract with the Petitioner tribe, to allow them to assume control of a health clinic. In an initial order, the district court ruled that HHS’s decision was unlawful, granted summary judgment to the tribe, and directed the parties to prepare a proposed order for injunctive relief. On remand from the initial appeal, the district court issued a final order, directing the parties to enter a self-determination contract including HHS’s proposed language regarding the contract start date and contract support costs (CSCs), and denying the tribe’s request for damages.

The Court now determines that the Indian Self-Determination and Education Assistance Act (ISDA) “plainly does not authorize HHS to decline the tribe’s contract proposal on the basis that it lacked sufficient appropriations to cover the CSCs requested by the tribe, the amount of which HHS does not contend is unreasonable.” HHS was, therefore, required to contract with the tribe. The Court also found that the tribe “is entitled to a contract specifying the full statutory amount of CSCs . . . subject to the availability of appropriations”; a tribe cannot be forced to enter into a self-determination contract waiving its entitlement to full support costs funding. Lastly, the Court ruled that the ISDA’s model agreement “makes clear that the default start date for a contract is the date on which the contract is approved and executed by the parties“; the tribe in this case did not offer any persuasive authority or rationale to suggest a different rule should apply to their contract.

Tenth Circuit: Unpublished Opinions, 9/19/11

On Monday, September 19, 2011, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Unpublished

Kirby v. Attorney General of the State of New Mexico

Lamkin v. Morinda Properties Weight Parcel, LLC

United States v. McKeighan

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.