November 21, 2014

State Board of Health Amends Rules Regarding Medical Marijuana Indigency Qualification and Doctors’ Good Standing

The Colorado State Board of Health has proposed amendments to the Medical Use of Marijuana rules. The amendments:

  • Modify the indigence standard to conform with HB 11-1043, to clarify how an indigent person can prove qualification; and
  • Clarify the definition of “in good standing” in accord with HB 11-1043, to better delineate the standard for when a doctor can prescribe medical marijuana to a patient.

A hearing on the amended rules will be held on Wednesday, November 16, 2011 at the Department of Public Health and Environment, Building A, Sabin-Cleere Conference Room, 4300 Cherry Creek Drive South, Denver, Colorado 80246, beginning at 10:00 am.

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

Domestic Violence Awareness Month: Should Sole-Parent Decision-Making Really Be the Last Resort?

As an attorney, Child and Family Investigator, and parenting coordinator/decision-maker, I frequently find myself struggling with our parental decision-making paradigm.  Unlike parenting time, decision-making can only go three ways:  joint/shared decision-making, split decision-making, and sole decision-making.  Yet, these three options are fraught with philosophical and practical implications under the best of circumstances.  They are even more problematic where domestic violence exists in the relationship between the parents.

There is a presumption among family law practitioners that shared decision-making is the ideal.  The predominant belief is that excluding a parent from major decisions in a child’s life is tantamount to excluding a parent from the child’s life entirely.  When it come to cases regarding their children, one parent acts with the assumption that the other parent must be made an enemy in order to make themselves appear as a model parent.  Demanding sole decision-making becomes the weapon of choice, intended to punish and hurt the other parent.

Shared decision-making presumes that what is best for children is that both parents participate equally in all major decisions.  (I’ll leave a discussion of what a major decision actually is for another day, but for now let’s assume we are truly talking about major decisions regarding education, extra-curricular activities, health care, or religious upbringing.)  The reality, however, is that for most parents who are no longer living together, this is a recipe for disaster.  There are, of course, former couples that are able to maintain a civilized relationship and focus on the children, but they are not the couples that we all see in our offices on a daily basis.  Frankly, if this worked so well, we wouldn’t have a need for the roles of parenting coordinator and decision-maker.

The average person leaves a relationship angry, bitter, and convinced that his or her former partner is the worst parent imaginable.  If there is domestic violence in the relationship, shared decision-making becomes a means for the abuser to continue to exercise power and control over the victim, to manipulate the victim and the system, and to ultimately abuse the child.  This is why C.R.S. § 14-10-124(1.5)(b)(V) specifically states, albeit weakly, that shared decision-making should not be awarded in cases of domestic violence.

Split decision-making, on the surface, looks like a fine alternative in those cases where couples simply cannot make joint decisions.  Dividing the responsibility prevents the need for couples to cooperate.  This could mean that one parent makes educational and health decisions while the other makes religious and extra-curricular decisions.  Like shared decision-making, this works for some.

But, consider the myriad intersections between areas of decision-making:  school and religion (especially for those children in parochial schools); extra-curricular activities and educational activities; healthcare and religion for some; and on and on.  If someone wishes to constrain the other parent’s or the child’s choices, split decision-making is ripe for that sort of abuse.  For example, the parent with extracurricular decision-making might decide the child is to participate in weekly karate classes, while the other parent is forced to take the child to those classes across town at an inconvenient time.  It is a perfect storm for one parent to exercise power and control over the other and the child.

This leaves us with sole decision-making, which is frowned upon except in the most egregious circumstances.  As I mentioned above, taking away a parent’s decision-making authority is viewed as second-class parent status.  This is for people who have supervised visits and limited contact, right?

But should it be?

The Supreme Court has told us that parents have a constitutional right to the care for and have control of their children; so restricting that right must have a basis in substantial facts.  Must this option really be reserved for only the worst of the worst?  Isn’t it possible that it is in the children’s best interest far more often than we are willing to acknowledge?

Sole decision-making is supposed to be presumed in cases of domestic violence, for obvious reasons.  But what often happens instead is that abusers argue they are not abusive and victims equivocate to avoid the conflict and abuse, only to end up with a decision-making order that perpetuates the dynamics of the relationship and further expands the children’s role as pawns.

I’ve spent a lot of time pondering these three options, and particularly their implications in cases of domestic violence.  I am left wishing for better choices that will ensure the best interests of children.  I’m left wondering if we, as attorneys, should reconsider our position on sole decision-making.  I am also left pondering how attorneys can better assess for domestic violence and better support victims.  During the month of October, Domestic Violence Awareness Month, I challenge you to give these questions some thought as well.

For those interested in exploring this topic further, there are a couple of excellent resources available:

The Civil Law Manual: Protection Orders and Family Law Cases (Rebecca Henry, Esq., ed., American Bar Association 3rd ed. 2007).  Available at: http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=3480008

Wallerstein, Lewis and Blakeslee, The Unexpected Legacy of Divorce: A 25 Year Landmark Study (Hyperion 2000).

Click here for more information about Domestic Violence Awareness Month.

Jennifer Eyl is an Attorney and Licensed Professional Counselor who has been working with victims of sexual and domestic violence since 1994. Jennifer currently serves as a court-appointed Child and Family Investigator and Parenting Coordinator/Decision-Maker. She is co-chair of the Colorado Bar Association’s Domestic Violence and Legal Issues Committee, a member of the Colorado Coalition Against Domestic Violence’s Public Policy Committee and Subcommittee on Domestic Violence and Domestic Relations, and is the chair of the Colorado Coalition Against Sexual Assault’s Public Policy Committee.

Rule Change Gives Students More Opportunities for Pro Bono Service

Editor’s Note: Pro Bono Week is October 24-28, 2011. In anticipation, CBA-CLE Legal Connection will run weekly articles this month to highlight local pro bono efforts and opportunities. At the end of the month, the Denver Bar Association has put together several days of events and parties for Pro Bono week, to recognize and celebrate the commitment to pro bono client services. Click here for more information.

Recent changes to Colorado’s Student Practice Act have expanded the qualifications for supervising lawyers who work with law students in pro bono cases, allowing students to get more in-court training and expanding attorneys’ ability to volunteer.

Colorado’s Student Practice Act allows currently enrolled second- and third-year law students acting under a qualified attorney’s supervision to draft motions, prepare pleadings, and enter appearances on behalf of consenting clients for civil, administrative, and certain criminal cases. By creating opportunities for hands-on litigation experience, the statute provides law students a meaningful way to learn through exposure to complex procedural issues and common practice strategies that are difficult to teach in a traditional classroom setting.

Before the rule change, law students could operate under the student practice rules only if they worked for an attorney in the public sector, such as the Public Defender’s or District Attorney’s offices, or if they were enrolled in a law school clinical program. The former rule prevented private attorneys working in a temporary or voluntary capacity from supervising a student’s court appearance and restricted the type of work a student could do for pro bono organizations such as Metro Volunteer Lawyers, which relies largely if not exclusively on volunteers’ time and efforts to serve indigent clients.

Law students who have completed at least two years of law school may appear in district, county, and municipal court, according to CRS § 12-5-116. Students must file certification from the dean or registrar of the law school confirming that they have completed two years of law school and are of good moral character. The Office of Attorney Registration provides the form for the dean’s certification. Students also must provide the name of the supervising attorney they will be working with.

A team of collaborators that included MVL staff and board members, professors, administrators at both University of Colorado and University of Denver law schools, and the Office of Attorney Regulation worked together to develop the proposed revision to the Student Practice Rules. In response to these efforts, the Supreme Court has adopted its revised Colorado Rule of Civil Procedure 226.5. The new Student Practice Rule, which has been effective since July 16, is more permissive regarding qualifications for supervising attorneys in that a supervising lawyer must now work for or on behalf of a public sector or nonprofit organization. This language allows private attorneys to serve as supervisory lawyers to law students who work with them on a pro bono case, so long as the case is referred to the law student and supervising attorney by a qualified legal services provider, such as MVL.

Under the new rule, students may offer legal services under the supervision of private attorneys volunteering on behalf of legal services organizations. Further, it increases the level of interaction between law students and practicing attorneys, benefiting both.  The new rule allows attorneys to ask for and expect more from the students they supervise, and acquaints students with more relevant issues in more varied fields of law.

By permitting law students to work with private attorneys on different types of pro bono cases, the new rule teaches students how to address and respond to the substantive and procedural challenges of a case through real-world exposure, and affords them opportunities to work with private attorneys practicing in legal fields that were beyond the scope of the old rule. Colorado’s new Student Practice Rule benefits the state’s legal system as a whole by expanding volunteers’ and private attorneys’ work with law school students to produce better-prepared young lawyers who leave school confident and ready to practice.

Matthew Foster is a third-year student at the University of Colorado School of Law and a student volunteer with Metro Volunteer Lawyers.

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Tenth Circuit: Unpublished Opinions, 10/11/11

On Tuesday, October 11, 2011, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Unpublished

Fox v. California Franchise Tax Board

United States v. Stout

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