December 17, 2017

Archives for April 2, 2013

Governor Hickenlooper Signs Several Bills Into Law

Governor Hickenlooper signed the first bills of the 2013 legislative session on January 31, 2013. Since then, he has signed an additional 116 bills, for a total of 118 bills.

On March 22, 2013, Governor Hickenlooper signed 29 bills. Five of them are summarized here.

  • HB 13-1126 – Concerning Statutorily Established Time Intervals, by Rep. Jared Wright and Sen. Irene Aguilar. The bill continues amending statutes in order to comply with “rule of seven” date calculations.
  • HB 13-1166 – Concerning the Repeal of Certain Crimes that Include Marital Status as an Element of the Crime, by Rep. Elena Kagan and Sen. Pat Steadman. The bill repeals the crimes of adultery and promoting sexual immorality.
  • SB 13-012 – Concerning Reporting of Suspected Child Abuse and Neglect by Youth Sports Organizations, by Sen. Rollie Heath and Rep. Jonathan Singer. The bill mandates that coaches, directors, and athletic personnel for youth sports organizations report suspected child abuse and neglect.
  • SB 13-078 – Concerning Points of Diversion that are Not Located at the Physical Location Specified in the Decrees for Diverted Water Rights, by Sen. Angela Giron and Rep. Jerry Sonnenberg. The bill allows owners of water rights to correct established but erroneously recorded points of diversion without having to apply for a change in water right.
  • SB 13-118 – Concerning Clarification of the Exemptions from the Laws Regulating Mortgage Loan Originators, and, in Connection Therewith, Exempting Real Estate Licensees Representing Persons Providing Seller Financing for the Sale of a Limited Number of Residential Properties Annually as Allowed by Law, by Sen. Mary Hodge and Rep. Dan Pabon. The bill allows a private property owner to provide seller financing to up to five properties without needing to fulfill licensing and registration requirements of mortgage brokers.

Governor Hickenlooper signed 12 bills into law on March 29, 2013. Four of them are summarized here.

  • HB 13-1016 – Concerning the Distribution to Beneficiaries of Amounts on Payable-on-Death (POD) Financial Institution Accounts Pursuant to Written Designation in the Records of the Financial Institution, by Rep. Bob Gardner and Sen. Cheri Jahn. The bill  specifies that funds held in a payable-on-death account may be distributed in an unequal manner if such intent is clearly written in the records of the financial institution.
  • HB 13-1168 – Concerning an Expansion in the Ability of a Ditch to Operate as an Acequia Ditch, by Rep. Edward Vigil and Sen. Gail Schwartz. The bill allows acequia ditch corporations to operate on properties other than long lots.
  • SB 13-008 – Concerning Elimination of the Waiting Period for Children’s Eligibility Under the Children’s Basic Health Plan, by Sen. Linda Newell and Rep. Beth McCann. The bill removes the waiting period for CHP+ health insurance, in hopes that removing the waiting period will encourage people to leave group plans and join CHP+.
  • SB 13-177 – Concerning Changes to the Juvenile Corrections Programs Resulting in Cost Reductions and Reducing the Juvenile Detention Bed Cap, Reducing the Appropriation for Commitment Beds and Assessment Services, and Making an Appropriation for Transportation, by the Joint Budget Committee. The bill reduces the maximum number of beds available in the Division of Youth Corrections due to a decreased number of youth offenders.

Finally, Governor Hickenlooper signed one bill on April 1, 2013. It is summarized here.

  • SB 13-194 – Concerning a Repeal of a Telephone Assistance Program for Low-Income Individuals and Reducing an Appropriation, by Sen. Pat Steadman and Rep. Cheri Gerou. The bill repeals the Low-Income Telephone Assistance Program.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

Colorado Court of Appeals: Collection of Arrearages of Child Support and Maintenance from ERISA Account Proper Under Qualified Domestic Relations Order

The Colorado Court of Appeals issued its opinion in In re Marriage of Drexler and Bruce, Jr. on Thursday, March 28, 2013.

Dissolution of Marriage—Retirement Funds—Employee Retirement Income Security Act—Qualified Domestic Relations Order—Noncompliance Order.

Husband appealed the trial court’s judgment holding that his retirement funds were not exempt from assignment under a qualified domestic relations order (QDRO) to satisfy domestic support arrearages, and sanctioning husband for noncompliance with the QRDO transfer. The judgment was affirmed.

The parties’ marriage ended in 2010 and husband was ordered to pay wife $5,000 per month in child support and $12,000 per month in maintenance for four years, followed by $8,000 per month for two years. Husband, a tax attorney and partner at a large law firm, did not comply, resulting in the accumulation of $101,486 in support arrearages and the suspension of his law license. Wife then moved for a QDRO to collect the arrearages from the funds held in husband’s Employee Retirement Income Security Act (ERISA) retirement plan at the law firm.

Husband objected, arguing that Colorado and federal law prohibited assigning his retirement funds to wife to pay the arrearages. The trial court disagreed and ordered the transfer. Husband did not comply, so the court ordered that the QDRO transfer be completed without his signature, that he reimburse wife for her attorney fees, and that the suspension of his previous contempt sentence for violating other court orders be lifted. He appealed.

ERISA generally prohibits assignment or alienation of retirement plan funds. However, both ERISA and the Internal Revenue Code (IRC) provide that the anti-alienation provisions do not apply to funds assigned to a former spouse under a QDRO. A QDRO is a “domestic relations order” that assigns to an alternate payee the right to receive all or a portion of the benefits payable to a participant. Such an order is defined as made pursuant to a state domestic relations law that concerns the provision of child or spousal support, or marital property rights of a former spouse of a plan participant. Here, the QDRO was entered to satisfy husband’s unpaid obligations relating to the dissolution, and therefore originated under Colorado domestic relations law, and not, as argued by husband, under Colorado collections law.

A QDRO also may be used under ERISA to enforce maintenance and child support obligations imposed under a divorce decree. Thus, the trial court did not violate the anti-alienation provisions of ERISA and the IRC by issuing the QDRO to enforce husband’s unpaid support obligations.

Husband argued that regardless of the QDRO exception to ERISA’s anti-alienation clause, his retirement benefits are exempt under Colorado law because CRS § 13-54-102(1)(s) exempts pension or retirement fund plans, including those subject to ERISA “from levy and sale under writ of attachment or writ of execution.” The Court of Appeals agreed with wife that the statute is preempted by ERISA because it imposes limitations not imposed by ERISA. It found that CRS § 13-54-101(1)(s) conflicts with ERISA and therefore is preempted by ERISA in accordance with conflict preemption to the extent it imposes additional limitations not imposed by ERISA on a spouse’s right to receive retirement plan funds under a QDRO.

Husband also contended that the trial court erred by entering the noncompliance order without a hearing after he did not cooperate with the QDRO transfer. The Court disagreed. Husband did not request such a hearing, so there was no error in the trial court not holding one.

Summary and full case available here.

Colorado Court of Appeals: Colorado Governmental Immunity Act Does Not Provide Waiver for Unimproved Areas of State Park

The Colorado Court of Appeals issued its opinion in Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Outdoor Recreation on Thursday, March 28, 2013.

Negligence—Camping—Immunity—Waiver—Colorado Governmental Immunity Act—Public Facility—Injuries—Dangerous Conditions.

Sara Burnett appealed the trial court’s judgment dismissing her negligence claim against the Colorado Department of Natural Resources (CDNR). The judgment was affirmed.

Burnett was injured while camping in a designated campground in Cherry Creek State Park, which is operated by the CDNR, when she was struck by a falling tree branch while sleeping in her tent. Burnett contended that the trial court erred in determining that the CDNR did not waive immunity for her injuries under the Colorado Governmental Immunity Act (CGIA). Although the campsite and campground were public facilities under the CGIA, the tree itself was not a public facility and the state retained immunity for injuries resulting from branches falling from trees in unimproved parts of a state park. Because there is no waiver of immunity under the CGIA for dangerous conditions in an unimproved area within a state park, the trial court did not err in dismissing Burnett’s negligence claim.

Summary and full case available here.

Tenth Circuit: Coconspirator and Aiding and Abetting Jury Instructions Correctly Stated Law

The Tenth Circuit published its opinion in United States v. Rosalezon Friday, March 29, 2013.

Defendants Mark Rosalez, Juan Ruelas, and Justin Hernandez, all of whom were federal inmates at the time of the underlying crimes, were jointly tried and convicted by a jury of conspiracy to assault another inmate, a fellow prison gang member, in violation of 18 U.S.C. § 371, and murder in the second degree, in violation of 18 U.S.C. §§ 1111(a) and 2(a). All three of the defendants were sentenced to lengthy terms of imprisonment as a result of these convictions. In this combined case, each defendant appealed his convictions.

Rosalez’ s Appeal

Rosalez argued the aiding and abetting jury instruction was erroneous because it did not instruct the jury that he intended to bring about the specific result committed by the other principals. The Tenth Circuit rejected this argument because the instruction “encompassed all relevant elements of our court’s precedent on aiding and abetting law, requiring the jury to find that Rosalez shared in the ‘intent to commit the underlying offense,’ ‘willfully associated with the criminal venture,’ and ‘aided the venture through affirmative action.’”

Rosalez also argued that the coconspirator liability instruction should not have been given because the conspiracy ended when the assault on the victim began. The court disagreed and rejected Rosalez’s due process argument as well. The murder of the victim was a direct and foreseeable result of the assault that was intended to be so severe he would need to be carried out on a stretcher and taken to a different facility. Because death was a natural consequence of the beating, liability attached.

The court rejected Rosalez’s argument that a constructive amendment or a variance occurred and held that Rosalez was on notice that the government might rely on a Pinkerton theory to prove his guilt on the murder count.

Ruelas’s Appeal

Ruelas argued that the district court committed plain error by omitting an essential element from the coconspiracy jury instruction. The court rejected this argument because the instruction correctly stated the law. Ruelas also argued that the admission at trial of statements that Ruelas made during a pretrial suppression hearing violated his Fifth Amendment right against self-incrimination. Because Ruelas did not have to make incriminating statements at the suppression hearing in order to assert his Fourth Amendment claim that his statements made to an FBI agent were involuntary, this argument failed.

Hernandez’s Appeal

Hernandez argued his Sixth Amendment right of confrontation was violated by the trial court’s refusing to allow his counsel to cross-examine a witness called by a coconspirator. The defense had a joint witness list but Hernanadez objected to a witness called by Rosalez and declined to ask questions of the witness until after the government’s cross-examination. The Tenth Circuit held the court’s refusal to allow questioning was a violation of Hernandez’s Sixth Amendment rights but it was harmless error. The testimony in question was a minor part of the government’s case and was cumulative of other testimony against Hernandez. The evidence against Hernandez was overwhelming. The court also rejected the same argument made by the other defendants regarding coconspirator liability.

The court affirmed the judgment in all three cases.

Tenth Circuit: Denial of Habeas Relief Affirmed in Death Penalty Case

The Tenth Circuit published its opinion in Lockett v. Trammel on Monday, April 1, 2013.

An Oklahoma state court jury convicted Clayton Lockett of 19 counts, including burglary, assault, rape, and first degree murder. He was sentenced to 2,285 years and 90 days of imprisonment for his non-capital crimes and sentenced to death for his murder conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Lockett’s convictions and sentence and later denied post-conviction relief. Lockett filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction and death sentence on 15 grounds. The federal district court denied relief but granted a certificate of appealability (“COA”) on seven grounds, one of which Lockett abandoned. Lockett sought to add three additional COAs in this appeal but the court denied that request.

Lockett’s trial counsel did not present a defense in the guilt phase of the trial but did present mitigation evidence in the death penalty phase focusing on Lockett’s childhood trauma. One witness, a social worker, was prohibited from testifying about facts specific to Lockett or that his childhood experiences affected his behavior as an adult. The court held that while the limitation on her testimony was erroneous, it did not have a “‘substantial and injurious effect’” on the jury verdict.” A second mitigation witness, a psychiatrist, testified to specific abuse experienced by the defendant as a child and how that abuse affected his behavior.

The trial court allowed the admission of a victim impact statement by the murder victim’s family. The Tenth Circuit held that the portions of the statement that included characterizations of the crime, opinions about the defendant, and a request for the death penalty to be imposed violated the Eighth Amendment under Booth v. Maryland, 482 U.S. 496 (1987). The court pointed out that Oklahoma is the only state to allow such statements, despite the Tenth Circuit’s disapproval. The court found that the admission of the unconstitutional portions of the impact statement was, however, harmless error.

Before trial, the defendant was examined at the government’s request by a psychiatrist, Dr. Call, because Lockett was considering pleading insanity. The government called this psychiatrist to testify as a rebuttal witness during the penalty phase. Lockett argued that Dr. Call’s examination of Lockett exceeded the scope agreed to by Lockett’s attorney, which violated the Sixth Amendment. The court rejected this argument.

The court also rejected Lockett’s argument that the evidence was insufficient to support the jury’s finding with respect to one of the five aggravating circumstances: that he created a great risk of death to more than one person.

Lockett argued cumulative error in the penalty phase was prejudicial and required reversal. The court disagreed.

Lockett argued that he received ineffective assistance of counsel at the guilt phase of his trial because his attorney conceded his guilt to the jury and allegedly failed to notify him of the strategy. Because conceding guilt can be a reasonable trial strategy, Lockett failed to meet the Strickland standard of deficient counsel performance that prejudiced him. The Oklahoma Criminal Court of Appeals’ decision to apply Strickland rather than Croncic was reasonable and entitled to AEDPA deference.

After rejecting Lockett’s motion to add COAs, the Tenth Circuit affirmed Lockett’s conviction and death sentence.

Tenth Circuit: Unpublished Opinions, 4/2/13

On Tuesday, April 2, 2013, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

ClearOne Commc’ns v. Bowers

Cook v. Wells Fargo Bank

Lord v. Hall

Moreno v. Cozza-Rhodes

United States v. Chaco

United States v. Figueroa-Mijares

Faine v. Jones

Reagle v. Jones

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

Tenth Circuit: Unpublished Opinions, 4/1/13

On Monday, April 1, 2013, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Cross v. Franklin

Warner v. Workman

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

HB 13-1222: Expanding Group of Family Members for whom FMLA Leave May Be Taken

On February 7, 2013, Rep. Cherylin Peniston and Sen. Jessie Ulibarri introduced HB 13-1222 – Concerning the Expansion of the Group of Family Members for whom Colorado Employees are Entitled to Take Leave from Work under the Federal “Family and Medical Leave Act of 1993.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under the federal “Family and Medical Leave Act” (FMLA), an employee is entitled to 12 work weeks of leave during a 12-month period to care for his or her spouse, child, or parent who has a serious health condition. In the case of a parent using FMLA leave to care for a child, the FMLA permits the leave only for the parent of a child who is under 18 years of age or is incapable of self-care because of a mental or physical disability. Current Colorado law is silent with regard to required family and medical leave, so Colorado employees are entitled to leave as specified in the FMLA.

The bill expands the group of family members for whom employees in Colorado may take FMLA leave when the family member has a serious health condition to include a person to whom the employee is related by blood, adoption, legal custody, marriage, or civil union, or with whom the employee resides and is in a committed relationship. As a result, an employee is permitted to use FMLA leave for a child, regardless of the age or dependency of the child, as well as for a sibling, partner in a civil union, grandparent, grandchild, or in-law.

An employee who is denied leave to care for a person in the expanded group of family members has the right to recover damages or equitable relief, as is currently the case for persons denied leave to care for a family member for whom leave is permitted under the FMLA. The bill cleared the House on Monday, March 25; it awaits a committee assignment in the Senate.

Since this summary, the bill was introduced in the Senate and Health & Human Services Committee.

HB 13-1214: Reclassifying Certain DUI Offenses as Felonies and Requiring Alcohol Monitoring and Use of Vehicle Interlock Devices

On February 1, 2013, Rep. Mark Waller introduced HB 13-1214 – Concerning the Classification of Certain Drunken Driving Offenses as Felonies, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, a conviction for DUI, DUI per se, or DWAI is considered a misdemeanor offense. The bill states that such an offense is a class 5 felony if:

  • The violation occurred not more than seven years after the first of two prior convictions, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, for DWAI, DUI, or DUI per se; vehicular homicide; or vehicular assault; or
  • The violation occurred after three prior convictions, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, for DWAI, DUI, or DUI per se; vehicular homicide; vehicular assault; or any combination thereof.

Under current law, when a person is sentenced to a period of probation as part of a second or subsequent conviction for DUI, DUI per se, or DWAI, the court:

  • May require the person to use an approved ignition interlock device during the period of probation at the person’s own expense; and
  • May require the person to submit to continuous alcohol monitoring using such technology or devices as are available to the court for such purpose.

Under the bill, the court is required to impose these conditions on such offenders.

If a person is sentenced to a period of probation pursuant to a class 5 felony conviction of DUI, DUI per se, or DWAI, the court shall not grant early termination of probation before the person has successfully completed at least two years of probation.

The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. On Feb. 21, the Judiciary Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact to the state.

Are Lawyers Unhappy? (Part 6) – Lessons from Aristotle

rhodes

Editor’s Note: This is Part 6 in a series of posts about lawyer happiness. For Part 1, click here; forPart 2, click here; for Part 3, click here; for Part 4, click here; and for Part 5, click here.

I’ve been blogging on the topic of lawyer happiness for a while. Aren’t we getting a little carried away? I mean, yes, we live in a country founded on “the pursuit of happiness,” and a lot of the guys who endorsed that idea were themselves lawyers, but that was then but this is now, so let’s not get carried away.

Not so fast. How about we go back, much further back, to Aristotle – not exactly everybody’s first choice as the Mr. Sunshine poster boy. Here’s what Aristotle said about happiness:

Happiness is the meaning and purpose of life, the whole aim and end of human existence.

Wow. THE meaning and purpose and life, not just one option among many.

Plus here’s what he said about work:

Pleasure in the job puts perfection in the work.

Ever notice that people doing what they love do it really well? Think about yourself:  what do you love to do – in work or in life – that you do or would do for free? How well do you do it? Really well, I’ll bet.

Where ever did we get the idea that we can be unhappy in our work and do it well? Or be unhappy in our work and still be happy in the rest of our lives?

What if we lived in a world – and practiced a profession – where the norm was for each of us to be doing what we love to do? What would that do for lawyer happiness, both on the job and in life? Can you imagine that?

I can, and I’m on a mission to help create that world and that profession, one happy lawyer at a time. Maybe you’d like to join the cause?

What would it take? For one thing, courage. Here’s what Aristotle said about that:

You will never do anything in the world without courage.

If we want that world, and that profession, we’re going to have to get brave. Really brave. Are you up for it?

Kevin Rhodes is on a mission to help lawyers be happy. No kidding. In his writing, workshops, coaching, and consulting, he helps individuals and organizations to make transformative changes. He leads workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. You can email him at kevinzdr@gmail.com.

Calling All Creative Lawyers – Enter Your Work in Creative Arts Contest

Are you an attorney with an artistic inclination or a way with words? The submission period is open to enter your creative works in the 2013 Denver Lawyers Arts & Literature Contest, sponsored by The Docket. Contest submission categories include: Writing—Fiction, Nonfiction, Poetry, and Humor; and Visual Arts—Painting (watercolors and oil/acrylic/mixed media), Drawing, Sculpture, and Photography. In all categories, the subject matter is open to the artists’ choice—no legal subject matter is required. Deadline to enter is 11 p.m. on  Monday, April 15. Winners will be recognized in the September issue of The Docket.

When entering, consider these guidelines: Writing entries should not exceed 1,500 words. For visual entries, please only send a digital file showing the work, not the original piece. Please do describe the scale of the work; if helpful to understanding the work, please provide multiple photo views of the work (particularly if submitting for Sculpture). In Photography submissions, please explain how the shot was obtained, as well as any post-production (i.e., Photoshop).

All Denver Bar Association members are eligible to enter the contest, except staff of the DBA, members of The Docket Committee (the judges), and any of these groups’ immediate family. For full entry details and rules, click here; download an entry form here. Questions? Email Sara Crocker at scrocker@cobar.org.

e-Legislative Report, 4/1/13

CBA Director of Legislative Relations Michael Valdez prepared this week’s e-Legislative Report. He discusses the activities of the Legislative Policy Committee and important bills at the capitol, and provides summaries of 20 bills of interest (15 from the House and 5 from the Senate).

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

On Friday, March 29, the LPC voted to support the Family Law Section’s proposed amendments to HB 13-1259. Concerning civil actions, and, in connection therewith, procedures for allocating parental rights and responsibilities in the best interests of the child in cases involving child abuse and neglect and domestic violence; provisions relating to parenting time orders; provisions relating to parenting time evaluations and reports; and amending and relocating provisions relating to civil protection orders.

At the Capitol

  • The Long Bill—Center Stage or Center Ring?
  • Starting on Monday, March 25, the Senate tackled the Long Bill, a/k/a the Budget Bill, SB. 13-230. After a series of round robin presentations to committees of reference by the Joint Budget Committee, the Republicans and Democrats broke for caucus meetings to discuss and propose amendments to the long bill. On Wednesday, March 27, the Senate debated the budget bill on 2nd Reading. On Thursday, March 28, the Senate gave final approval on and passed the bill to the House.
  • Both chambers took the day off on Friday, March 29.
  • The Budget Bill will travel a similar route in the House when the legislature returns from the extended weekend.
  • Update: Death Penalty—Two Bills, Similar Fate
  • On Tuesday, March 26, the House Judiciary defeated the proposal to repeal the death penalty in Colorado. HB 13-1264. Repeal of the Death Penalty was failed on a vote of 4–6 with one excused.
  • On Wednesday, March 27, the Local Government Committee voted to postpone indefinitely the proposal to refer the state’s policy regarding the death penalty to the voters. The final vote, 13–0 to defeat the bill ends the journey for HB 1270. Refer Repeal Of Death Penalty To Citizen Vote.

For the complete e-Legislative Report, including summaries of 20 Bills of Interest, click here.