January 20, 2018

Archives for May 2, 2012

Tenth Circuit: Venue Proper and Sufficient Evidence to Show Copilot Was Under the Influence of Alcohol During Flight

The Tenth Circuit Court of Appeals published its opinion in United States v. Cope on Tuesday, May 1, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of one count of operating a common carrier—a commercial airplane—under the influence of alcohol. He now challenges his conviction based on improper venue, insufficiency of the evidence, and improper reliance on federal regulations.

Petitioner argues that there is no evidence that he was under the influence of alcohol in Colorado and thus venue in the District of Colorado was improper. The Court disagreed, finding that because he was operating a common carrier in interstate commerce, it is immaterial whether he was “under the influence of alcohol” in Colorado. “Venue is proper in any district through which Mr. Cope traveled on the flight, including the District of Colorado.”

Petitioner also argues that the district court put improper weight on the breathalyzer tests, which he contends are invalid, and that there was insufficient evidence that he was “under the influence of alcohol.” The Court found that the district court was entitled to weigh competing testimony about the tests. Additionally, his “high BAC combined with the evidence that [Petitioner] drank a significant amount of alcohol the night before the flight, implicitly admitted that he would fail a breathalyzer test, smelled of alcohol, and had red eyes and a puffy face before the flight, is sufficient evidence for a reasonable fact-finder to find that [Petitioner] was ‘under the influence of alcohol.'”

Tenth Circuit: District Court Lacked Jurisdiction to Consider whether Confinement Violated Extradition Treaty

The Tenth Circuit Court of Appeals published its opinion in Palma-Salazar v. Davis on Tuesday, May 1, 2012.

The Tenth Circuit affirmed in part and vacated in part the district court’s decision. Petitioner “was indicted in 1995 for conspiracy to distribute cocaine; he was arrested in Mexico in 2002. After he was extradited to the United States pursuant to an extradition treaty between the United States and Mexico, [Petitioner] pleaded guilty and began serving his sentence. In 2010, [he] filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus, challenging his confinement at the Administrative Maximum Prison in Florence, Colorado (ADX). He alleged his confinement at ADX violates his Fifth and Eighth Amendment rights and also the extradition treaty. The district court denied [the] petition. It concluded it lacked jurisdiction under 28 U.S.C. § 2241 to consider his Fifth and Eighth Amendment claims because they are challenges to the conditions of his confinement and must, therefore, be brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).” However,  it did conclude that Petitioner’s confinement at ADX does not violate the extradition treaty.

The Tenth Circuit held that the district court lacked jurisdiction under 28 U.S.C. § 2241 to consider any of Petitioner’s claims, including whether his confinement violated the treaty. “Because he seeks a change in the place of his confinement, which is properly construed as a challenge to the conditions of his confinement, [Petitioner]’s claims must be brought pursuant to Bivens.”

Tenth Circuit: Unpublished Opinions, 5/1/12

On Tuesday, May 1, 2012, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Unpublished

Gose v. Douglas, Wyoming

Seymore v. Astrue

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

Colorado Court of Appeals: Workers’ Compensation Benefits Correctly Reduced by Amount of Social Security Award but No Reduction Allowed for Retirement Benefits from Different Employer

The Colorado Court of Appeals issued its opinion in Zerba v. Dillon Companies, Inc. on April 26, 2012.

Offsetting Social Security Payments Against Permanent Total Disability Benefits—Offsetting Military Retirement Benefits—Equal Protection.

Both parties sought review of the final decision of the Industrial Claim Appeals Office (Panel). The Panel’s decision allowed employer, Dillon Companies, Inc., doing business as King Soopers, to offset the old-age Social Security payments (SSA) received by claimant Robert Zerba against his permanent total disability (PTD) benefits, but denied King Soopers’ request to offset Zerba’s military retirement benefits. The order was affirmed.

Zerba contended that the administrative law judge (ALJ) and Panel erred in granting King Soopers an offset of his SSA benefits against the PTD benefits he was awarded. Specifically, Zerba claimed that this offset disproportionately harms elderly and poor workers by depriving them of the full sum they were receiving when they supplemented their SSA benefits with income. However, Zerba failed to establish that his right to equal protection under the law was violated because the SSA offset has a rational basis and therefore met constitutional scrutiny. Therefore, neither the Panel nor the ALJ erred in determining that King Soopers was entitled to an offset of Zerba’s SSA benefits against the PTD award. Additionally, the ALJ did not abuse its discretion in calculating Zerba’s PTD benefits before offsetting his SSA benefits.

In its cross-appeal, King Soopers contended that the ALJ and the Panel erred in denying it an offset for Zerba’s military retirement benefits. CRS §8-42-103(1)(c)(II.5), however, does not provide for an offset of military retirement benefits because that provision permits an offset only of “employer-paid retirement benefits.” Because King Soopers is not the employer providing Zerba with the retirement benefits in question, it was not entitled to the statutory offset. Therefore, neither the Panel nor the ALJ erred in denying King Soopers’ request for an offset of Zerba’s military retirement benefits.

Summary and full case available here.

Colorado Court of Appeals: Summary Judgment That Resolves All Issues Does Not Terminate Accepted Settlement Agreement

The Colorado Court of Appeals issued its opinion in Rose v. Atkinson on April 26, 2012.

Enforcement of Settlement Agreement—Summary Judgment Does Not Terminate Settlement Offer.

Defendant Lynn Atkinson appealed the trial court’s order enforcing the settlement agreement she entered into with plaintiff Kristine Rost on her minor daughter’s behalf. The order was affirmed.

Plaintiff sued defendant for injuries her daughter sustained on defendant’s property. Defendant served plaintiff with a statutory settlement offer. The next day, the court issued an order granting summary judgment for defendant, resolving all issues in the case. Plaintiff accepted the settlement offer after receiving notice of the summary judgment order. Later that same day, defendant e-mailed plaintiff’s counsel and withdrew the settlement offer. The court rejected defendant’s argument that the summary judgment order terminated the settlement offer and entered an order enforcing the settlement agreement.

Defendant contended that the court erred in enforcing the settlement agreement because the entry of summary judgment in her favor nullified the settlement offer before she accepted it. A summary judgment order resolving all issues in a case does not terminate a valid statutory settlement offer. Only two conditions terminate a valid settlement offer under CRS §13-17-202(1)(a): (1) the offer’s withdrawal, or (2) expiration of the fourteen-day period. Here, neither condition occurred before plaintiff’s acceptance, and the offer therefore became a binding settlement agreement once plaintiff accepted it. Accordingly, the court did not err in enforcing such an agreement.

Summary and full case available here.

Colorado Court of Appeals: People Failed to Prove All Elements of Crime Against Delinquent Juvenile for Bomb Threats

The Colorado Court of Appeals issued its opinion in People in the Interest of C.F. on April 26, 2012.

False Reporting of Bomb—Location of Person When Threats Made—Failure to Prove Elements of Offenses.

The People appealed the district court’s rulings that the prosecution had not proved that C.F., a juvenile, had committed acts that, if committed by an adult, would constitute the offenses of (1) falsely reporting an explosive, weapon, or harmful substance; and (2) interfering with the staff, faculty, or students of an educational institution. The rulings were approved.

C.F. left telephone messages for two schools threatening to blow up the schools. At trial, C.F. essentially conceded that he had made the calls and did not dispute the substance of what he had said. The district court acquitted C.F. of all charges, however, finding that the prosecution had failed to prove an element of the charges.

The People argued that CRS §18-8-110 does not require proof that C.F. reported that a bomb (or other prohibited item or substance) had been placed. The statute specifically requires, however, that the People prove that the defendant reported that the bomb (or other prohibited item or substance) “has been placed in any public or private place or vehicle designed for the transportation of persons or property.” The substance of C.F.’s reports did not support an inference that bombs had been, at the time of the reports, placed somewhere.

The People also argued that CRS §18-9-109(2) does not require proof that C.F. was at the schools when he interfered with school operations. The clause in this statute, however, unambiguously concerns where the person charged is located when he engages in activity proscribed by the statute. Because C.F. was not at the schools when he made these threats, the prosecution failed to prove this element of the charges. Therefore, the district court did not err in finding that the prosecution had failed to prove all elements of these offenses beyond a reasonable doubt.

Summary and full case available here.

Colorado Court of Appeals: Office of Attorney Regulation Counsel is Part of Judicial Branch and Is Not Subject to the Colorado Open Records Act

The Colorado Court of Appeals issued its opinion in Gleason, Supreme Court Regulation Counsel v. Judicial Watch, Inc. on April 26, 2012.

Colorado Open Records Act—Colorado Judicial Branch.

Both petitioner, the Supreme Court Regulation Counsel, and the Office of Attorney Regulation Counsel (collectively, regulation counsel) and respondent, Judicial Watch, Inc., appealed the trial court’s order granting most of respondent’s request for records and denying the rest. The order was affirmed in part and reversed in part, and the case was remanded.

Judicial Watch requested that regulation counsel grant it access to certain records under the Colorado Open Records Act (CORA). The records pertained to the appointment of regulation counsel by the Chief Justice of the Colorado Supreme Court, at the request of the Chief Justice of the Arizona Supreme Court, to investigate the conduct of lawyers in Arizona. Regulation counsel denied Judicial Watch’s request.

Regulation counsel asserted that the trial court erred in granting any of Judicial Watch’s request for records. Regulation counsel is subject to the direction of the Supreme Court, and participates in the process of regulating attorneys. Thus, regulation counsel is part of Colorado’s Judicial Branch of government. CORA does not include the judiciary within the terms “state” and “state agency.” Because regulation counsel is part of the Judicial Branch, it likewise is not part of the state or a state agency for the purposes of CORA. Therefore, the trial court erred when it concluded that CORA governed Judicial Watch’s request for regulation counsel’s records and that those records must be disclosed under CORA. The case was remanded to the trial court to enter an order denying Judicial Watch’s entire request.

Summary and full case available here.

Colorado Court of Appeals: Attractive Nuisance Doctrine Applies Only to Children Who Trespass and Not to Licensees

The Colorado Court of Appeals issued its opinion in SW v. Towers Boat Club, Inc. on April 26, 2012.

Attractive Nuisance Doctrine—Child Licensee—Not Trespassing Child Enticed Onto Property.

Plaintiffs SW, David Wacker, and Rhonda Wacker appealed the trial court’s summary judgment in favor of defendant Towers Boat Club, Inc. (landowner). The judgment was affirmed.

On August 2, 2008, SW, who was 11 years old, attended a social gathering at Poudre Reservoir Number 6. While he was playing on an inflatable structure rented by landowner for the gathering, wind lifted the structure into the air and SW fell to the ground, sustaining severe injuries. Plaintiffs asserted claims against the landowner, including a claim for attractive nuisance.

Plaintiffs contended that the trial court erred in granting landowner’s motion for summary judgment and dismissing their attractive nuisance claim against landowner. As an issue of first impression, the Court of Appeals held that under the premises liability statute, a child licensee may not assert a claim based on the attractive nuisance doctrine. The doctrine unequivocally applies only to children enticed by an attractive nuisance to trespass on another’s property. Because SW was not a trespassing child who was enticed onto the property by an attractive nuisance, he could not assert a claim for attractive nuisance.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 4/30/12

On Monday, April 30, 2012, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Unpublished

Walker v. United States

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

It’s Elder Law Month: Do You Have a Plan for Your Own Disability or Unexpected Events?

May 1 is law day, we all know that, but did you also know that it’s Elder Law Day? Well, technically, May is Elder Law Month. What does that mean for attorneys? Well, for many of us that means taking a look in the mirror! You might have noticed that the average age of attorneys in Colorado is getting a bit older. From what I could dig up, somewhere around 36% of CBA members (April 2011 CBA demographics, supplied by Heather Clark via Reba Nance) are over the age of 55. Based on another statistic (let’s call it anecdotal evidence), I’m pretty sure most of them aren’t reading this post . . . !

For solo and small firm attorneys in particular, the “age thing” has important consequences for our law practices. But the bigger issues for solo and small firm attorneys have not so much to do with age as with planning. I won’t beat around the bush here – I’m talking about disability, destruction, and death. Yep, it’s why my policy is always to eat dessert first! But seriously, as the number of solo attorneys grows and many of us (yours truly included) are eligible for AARP membership, are we making the necessary plans to protect our loved ones, our law practices, and our clients? The ABA’s Law Practice Today has a good article about this, even if it is a couple years old.

If you are like the majority of my trusts & estates colleagues (I informally “interviewed” about a dozen lawyers a couple years ago), you don’t have anything in place. A couple years back I participated in a CLE program called “Planning Ahead” and we prepared some forms as part of the CLE. I think the occasion of Elder Law month is an excellent time to revisit some of the themes in that CLE. Where do we start? At the beginning!

Start with two basic questions. Ask yourself:

  • What would happen if ________?
  • What will happen when _________?

Do you have an idea of the answers? Many of us don’t! So what is the next step? Forms of course! These forms are designed to get the process started and are meant only as guidelines to help you get some strategy or plan in place with documentation to support it.

How do you get started?

How about the 15-Minute Fix? Okay, it will take longer than that – but at least the forms could be easy. Here are a few suggestions to get you started:

  1. Checklist for An Assisting Lawyer to Protect the Interests of  an Affected Attorney’s Clients (read office/file management policies and procedures)
  2. Checklist for Closing a Law Office
  3. Trust and Bank Account Considerations
  4. Business Access Considerations (agreement between attorneys to manage/close a practice)
  5. Limited Power of Attorney for Assisting Lawyer (you can have an escrow holder for this one)
  6. Casualty Clause for Engagement Letter (to tell your clients you’ve made arrangements)
  7. Will Provisions Relating to Law Practice (mine is three pages long)

If this exercise doesn’t get you thinking about your practice and how it factors into your life and your legacy (read: mindful law practice planning), I don’t know what will.

Need some more thoughts about what to consider in a plan? Another helpful article with a good list is here. If you need to be scared into considering this “for real,” read this cautionary tale from the April 2012 California Bar Journal.

For Colorado information, Colorado Attorney Regulation has a lengthy pdf from 2007 here, which contains several helpful checklists. Please, don’t give inventory counsel more work to do!

You want to read more about this in book form (with a CD with forms)? Go to the CBA lending library and check out “Being Prepared: A Lawyer’s Guide for Dealing with Disability or Unexpected Events” (2008:ABA).

Start planning – even a small plan – right now.

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She also edits the SOLOinCOLO blog and contributes content for the site. She can be contacted at barb@DenverElderLaw.org.