April 19, 2018

Archives for December 20, 2011

The Life and Times of Brian Boatright: An Interview with the Newest Colorado Supreme Court Justice

I have had the privilege of knowing the newest justice on the Colorado Supreme Court for over 17 years, since September of 1994, when I was hired as a deputy district attorney in Jefferson County.  Brian Boatright was a senior deputy then, prosecuting felony cases in district court.  One of the first memories I have of him was as an instructor of mine at “Baby DA School,” teaching evidence and procedure.  Even then, it was obvious to me that this was a really smart guy.  Scary smart.  In 2006, I joined him as a colleague on the First Judicial District bench.  I recently had the chance to sit down with Justice Boatright for an in-depth chat, something I wish I had done long ago.

Justice Boatright points to his father, an extremely well-respected and honored attorney, for having the biggest impact on his life.  He credits his dad with teaching him humility, and passing on a work ethic that has guided and shaped his career and life.  Professionally, Senior Judge Michael Villano (his godfather), played a huge role in setting the highest example for judicial temperament and demeanor for Justice Boatright to follow.  Judge Villano administered the oath to Justice Boatright at his ceremonial swearing-in at the state capitol on December 13, 2011.

He mentions former Governor Bill Ritter as someone who made a significant impact on him.  When Justice Boatright was nominated as a county court judge, he was told that talking to then-Denver DA Ritter regarding his upcoming interview with Governor Romer would be a good idea.  Brian is still astounded that, although they knew each other only slightly at the time, DA Ritter spent over 45 minutes with him, conducting a mock interview.  Having someone going out of their way for a virtual stranger like that made an impression on Brian that hasn’t faded many years later.

Justice Boatright served as a district court judge in Jefferson County for over ten years.  For the last several years before his appointment to the Supreme Court, he was overseeing a dedicated juvenile docket.  It is his devotion to juvenile issues and children that perhaps defines Justice Boatright the best.  He will miss seeing the joy that resulted from a successful adoption or a positive end to a dependency and neglect case with a family being reunited.  Being a parent had a huge impact on his handling of juvenile cases, giving perspective on virtually every decision.  In recognition of his tireless work on behalf of children, Jefferson County has named a playground at the Human Services Building the Honorable Brian Boatright Playground.

From a long and varied career, Justice Boatright has several ideas regarding the legal profession and the role of the judiciary.  A book he recommends to judges or those interested in the bench is Blink by Malcolm Gladwell.  It deals with preconceived notions, an issue that can obviously impact decisions from the bench.  Interestingly, Governor Hickenlooper has read the book, and it was mentioned during the Supreme Court appointment process by the governor.  One example of the problems preconceived notions can create was a situation that came up during Justice Boatright’s juvenile docket.  He was dealing with a difficult termination of parental rights case where the mother came across as “rough” with a questionable lifestyle.  During the proceedings, Justice Boatright started to question his initial impressions of this woman, wondering if the way she presented herself was prejudicing him against her.  He began to think the termination case might be more based upon her poverty instead of her inability to be a good parent.  In the end, he denied the petition, and did not terminate this mother’s parental rights, despite his initial perception of her.

Justice Boatright would like the attorneys who will be appearing in front of him, as well as all the citizens of Colorado, to know that he respects the separation of powers so fundamental to our system.  He trusts the law, and he trusts in our system of justice.  He knows he’s starting a new phase of his career in which people will likely disagree with him at times, but to the Colorado legal community, he sends the following: he will apply the law to the utmost of his ability, no matter the case or issue.  He is clearly honored to be appointed to the Colorado Supreme Court.  I feel the honor is ours.

Little-known facts and trivia about Justice Brian Boatright:

  • His dream job?  General Manager of the Colorado Rockies.
  • In the third grade, he appeared in a commercial for JetEx, where he was supposed to say “My dad wears a polka-dotted tie.”  He couldn’t say “polka-dotted,” settling for “poka-a-dot” tie.  He made $25 for the commercial, although he still seems bitter that his parents took 75% of that as his “agents.”  His potential drama career sadly ended after he played Snoopy in a middle school production of “You’re a Good Man, Charlie Brown.”  He seemed strangely reluctant to discuss this episode of his life.
  • He can remember and sing all the words to the Schoolhouse Rock classic “I’m Just a Bill.”  (“I’m just a bill, yes I’m only a bill, and I’m sitting here on Capitol Hill . . . .”). Don’t read anything into the fact that he makes no such claim about the Schoolhouse Rock song about the preamble to the U.S. Constitution.  I’m sure he knows the preamble.  Well, pretty sure anyway.
  • Eating apples make him sweat.  The tarter the apple, the more he sweats.  (Good information for attorneys practicing before the Supreme Court to have.  If you’re planning to bring apples to the justices, a la one for the teacher in school, best to leave Justice Boatright out.  Or bring a very sweet apple.)  He views this . . . ability?  Talent? I’m not sure what to call it . . . as a “good party trick.”  I don’t know what sort of parties he goes to.  Or will get invited to now.
  • Despite last season, he still thinks CU joining the Pac-12 was a good idea.  Clearly, he has trouble leaving some irrational thoughts behind.  (I’m guessing Governor Hickenlooper didn’t ask him this question.)
  • He has thus far resisted the temptation to wear his purple Rockies robe, but doesn’t rule out wearing it if they win the World Series.
  • I’m exercising some discretion, and will not disclose his response to the classic “boxers or briefs?” question.  Just use your imagination here, dear reader.
  • He advises trial judges that he may reverse just so they can have the same attitude he had when he was reversed.  (Not that he was ever reversed.)  That attitude?  “Wow – the upper court really got it right!”
  • His most embarrassing moment on the bench?  (So far.)  When he was presiding over an allocation of parental responsibilities hearing and asked to no one in particular, “Who entered the APR order in this case?”  Following an awkward silence, his long-time clerk Sonya said, “You did. Two weeks ago.”  His response?  “Oh.”
  • His favorite saying while on the bench?  “Closed mouth gathers no foot.”
  • He wanted me to make clear that his brother is older than he is.  Much older.
  • For someone who has shot to the top of his profession, he has a surprisingly lousy sense of direction.  When we finished this interview at Buffalo Wild Wings after two hours or so (and, let’s be clear – no alcohol.  Just iced tea and Coke.  Honest.), Justice Boatright went completely the wrong way and tried to exit the restaurant through the back wall.

My deepest thanks and appreciation to the entire First Judicial District bench for their ideas for questions to their former colleague.  Special acknowledgement to Judge Margie Enquist, who tipped me off about the apple issue, the “poka-a-dot,” and the Bill song.  Justice Boatright expressed that his greatest regret about his appointment is leaving all these great folks behind.  I understand why he feels that way.

Bradley A. Burback is a county court judge in the First Judicial District.

Finalists Selected to Fill Judgeship on Arapahoe County Court

The Eighteenth Judicial District Nominating Commission has nominated three candidates for an Arapahoe County Court judgeship created by the retirement of the Honorable Ethan D. Feldman, effective December 31, 2011.

The nominees for the bench are Michelle Amico of Littleton, M. Paula Ashen of Centennial, and Cheryl Rowles-Stokes of Aurora. All were selected by the Commission on December 19.

Under the Colorado Constitution, Governor Hickenlooper has until January 4, 2012 to appoint one of the nominees as County Court Judge for Arapahoe County.

Comments regarding any of the nominees can be emailed to the Governor’s Office.

Colorado Supreme Court: Each Separately Charged Incident of Sexual Assault on a Child May Be Elevated to a Class 3 Felony, Where Each Incident is Part of a Pattern of Sexual Abuse

The Colorado Supreme Court issued its opinion in People v. Simon; Tillery v. People on December 19, 2011.

Criminal Law—Sexual Assault on a Child by One in a Position of Trust—Pattern of Abuse.

The Supreme Court held that CRS §§ 18-3-405(2)(d) and 405.3(2)(b) unambiguously allow each separately charged incident of sexual assault on a child, or sexual assault on a child by one in a position of trust, to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. The Court further held that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution.

The Court therefore reversed the court of appeals’ decision in People v. Simon, reinstated Simon’s ten class 3 felony pattern convictions and sentences, and remanded the case to the court of appeals for consideration of the remaining issue raised by Simon on appeal. The Court affirmed the court of appeals’ decision in Tillery v. People and remanded with directions to return the case to the trial court for resentencing in accordance with the court of appeals’ decision.

Summary and full case available here.

Colorado Supreme Court: Attempted Assignment of LLC Member’s Rights Invalid Without Consent of Other Members under Operating Agreement

The Colorado Supreme Court issued its opinion in Condo v. Conners on December 19, 2011.

Limited Liability Company Membership Duties and Rights—Transfer of Voting Rights.

The Supreme Court held that an attempted assignment of a limited liability company (LLC) member’s right to receive distributions and effective transfer of voting rights was invalid because it was made without the consent of the other members of the LLC, in violation of the anti-assignment clause in the LLC’s operating agreement. The Court reasoned that because the anti-assignment clause applied to the assignment of “any portion” of a membership interest, the clause applied to attempted assignments of both rights and duties. Further, because the Colorado LLC statute evinces a preference for the freedom of contract, the Court held that this anti-assignment clause rendered each LLC member powerless to make an assignment without the consent of all members and, therefore, this attempted assignment was without any legal effect.

Summary and full case available here.

Colorado Supreme Court: Approval of Ground Water Management Plan

The Colorado Supreme Court issued its opinion in Concerning the Office of the State Engineer’s Approval of the Plan of Water Management for Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.: San Antonio, Los Pinos, and Conejos River Acequia Preservation Assoc. v. Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.; Rio Grande Water Conservation District v. San Antonio, Los Pinos, and Conejos River Acequia Preservation Assoc. on December 19, 2011.

Approval of Ground Water Management Plan—Role of State Engineer and Trial Court

The Supreme Court affirmed the judgment and decree of the Alamosa County District Court and the water court for Water Division No. 3 approving the ground water management plan adopted by the Special Improvement District No. 1 (Subdistrict), the Rio Grande Water Conservation District, and the State Engineer. The General Assembly has adopted a series of statutes applicable to confined and unconfined aquifers within the San Luis Valley and Water Division No. 3, empowering the Subdistrict to adopt and implement the plan. The plan as approved and decreed adequately addresses the replacement of well depletions that injure adjudicated senior surface water rights, along with restoring and maintaining sustainable aquifer levels in accordance with the applicable statutes. Provisions of the augmentation statutes do not govern approval of the plan. The Subdistrict bears the burden of going forward, as well as the burden of proof to demonstrate that annual replacement plans prevent material injury to adjudicated senior surface water rights caused by ongoing and past well depletions that have future impact.

Summary and full case available here.

Colorado Supreme Court: Trial Court Did Not Err in Rejecting Petitioner’s Suggested Multiple Assailants Instruction

The Colorado Supreme Court issued its opinion in Riley v. People on December 19, 2011.

Criminal Law—Jury Instructions—Self-Defense—Multiple Assailants.

The Supreme Court affirmed the Court of Appeals’ judgment and held that the trial court did not err when it rejected petitioner Anthony Riley’s suggested multiple assailants instruction. The instructions given by the trial court accurately apprised the jury of the law of self-defense, in compliance with People v. Jones, 675 P.2d 9 (Colo. 1984).

Summary and full case available here.

Dance Off Among Past Presidents Planned for 2012 Barristers Benefit Ball

The dance competition at this year’s “Dancing with the Bar Stars for MVL” Barristers Benefit Ball will feature three past presidents, but this year there’s a twist—in addition to those that you’ll see on the dance floor—the dancers will team up with their spouses for the competition.

So, which past presidents will be busting a move for your enjoyment (and to benefit Metro Volunteer Lawyers)? Former Denver Bar President and Colorado Bar President-elect Mark Fogg and Pat Fogg, former Colorado and Denver Bar President Bill Walters and Christy Cutler, and former Denver Bar President Elsa Martinez Tenreiro and Steve Theis will compete.

In case you missed last year’s inaugural dance off, Cyndy Ciancio took the People’s Choice Award and the top fundraising award for her performance with professional dancer Tim Edgar to Donna Summer’s “Last Dance.” She, Hubert Farbes, Vicki Johnson, and John Moye were paired with professional dancers and showed off their routines in a “Dancing with the Stars”-like competition. Click here to see their practice videos and video of the performances at the ball. Cyndy will also perform before the competition at this year’s ball.

There will be more on the dancers in the coming months in our Docket eFile, but to know who will wow the legal community with their moves, you’ll have to get a ticket to the ball. Tickets for the May 5 event at the Grand Hyatt in Denver are on sale now here.

Tenth Circuit: District Court Used Only Information Available to it in Calculating Fair Market Value or Reasonable Estimated Loss Valuation

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snow on Monday, December 19, 2011.

The Tenth Circuit affirmed the district court’s sentences. Petitioner pled guilty to one count of conspiracy to commit wire fraud and four counts of wire fraud. The district court sentenced him to concurrent ninety-month sentences on each count. Petitioner appeals his sentences, contending the court erred in the methodology it used in calculating the reasonable estimate of victim loss attributable to him. He also appeals his sentences on grounds the district court erred in imposing two-level enhancements for his leadership role in the fraud scheme he perpetrated and use of a sophisticated means in carrying out that scheme.

The Court determined that because Petitioner has not offered any other methodology for calculating the fair market value or reasonable estimated loss valuation, it is unable to conclude that the district court erred in using the only information available to it in estimating the loss. “Because the district court was able to reasonably estimate the fair market value for the loss calculation, [the Court rejected Petitioner’s] contention that actual loss could not be reasonably determined for the purpose of alternatively using his gain on sale of the property as a measure of loss.” Additionally, Petitioner “meets sufficient criteria to qualify him as an ‘organizer’ of the mortgage-fraud scheme for the purpose of warranting a two-level offense enhancement”; the district court also reasonably applied a two-level increase in Petitioner’s offense level under for conduct by sophisticated means, “which involved especially complex conduct in the scheme’s execution as well as its concealment.”

Tenth Circuit: Petitioner Should Have Trained Employee on the Fatal Danger Posed by the High-Voltage Lines in Vicinity of Work Area

The Tenth Circuit Court of Appeals issued its opinion in Compass Environmental Inc. v. Occupational Safety and Health Review Comm’n on Monday, December 19, 2011.

The Tenth Circuit affirmed the Commission’s decision. The Court reviewed a final order of the Occupational Safety and Health Review Commission, which found a serious violation of a safety regulation and assessed a $5,500 penalty against Petitioner. The Commission held that Petitioner failed to train a now-deceased employee to recognize and avoid the electrocution hazard presented by a high-voltage overhead power line at his worksite in Fort Lupton, Colorado. Petitioner argues that the Commission failed to apply the correct legal test and erred in concluding that a reasonably prudent employer would have anticipated this employee’s potential exposure to the power line.

The Court found that although Petitioner “might not have been able to predict the manner in which the trench hand would be exposed to this hazard, . . . the Commission did not abuse its discretion in holding that [Petitioner] should have trained the trench hand on the fatal danger posed by the high-voltage lines located in the vicinity of his work area. Because it is undisputed that [Petitioner] did not give this employee any instructions on this hazard,” there was no abuse of discretion in the Commission’s conclusion that Petitioner violated the regulation.

Tenth Circuit: Unpublished Opinions, 12/19/11

On Monday, December 19, 2011, the Tenth Circuit Court of Appeals issued two published opinions and seven unpublished opinions.


United States v. Williams

Brownfield v. Sanders

Doyle v. Jones

United States v. Onofre-Javier

United States v. Chacon

United States v. Moser

Trinity Mortgage Companies, Inc. v. Dryer

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