December 17, 2017

Archives for April 17, 2013

Fifth Annual Sean May Memorial Run/Walk Set for May 11

Sean May

Sean May

The Fifth Annual Sean May Memorial Run/Walk will be held on Saturday, May 11, at Barr Lake State Park in Brighton. The run was created to honor May, a chief deputy district attorney with the 17th Judicial District Attorney’s Office who was shot to death in his backyard when he was returning home from work on Aug. 27, 2008.

During his seven years of service in Adams County, May volunteered for the Child Victim Unit, where he pursued justice for children who had been physically and/or sexually abused. At the time of his death, he was responsible for training and supervising new prosecutors.

May always stressed the importance of acting responsibly, including treating victims, the community, defendants and the courts with dignity and respect. Proceeds from the race will benefit Access to Justice programs and activities and May’s family.

The Self-Help Resource Center at the Adams County Justice Center was made possible in part by the proceeds from this event. The center provides computers, information and staff to help people with legal procedural questions. Since opening on Jan. 5, 2011, it has served thousands. The judiciary and legislature have recognized the center as a statewide model, funding staff positions there and self-help centers in other judicial districts.

The race is organized by the 17th J.D. Access to Justice Committee, the Adams/Broomfield Bar Association and the Colorado Bar Association. The race will be professionally timed by Hallucination Sports. To register or fundraise for the race, visit seanmaymemorialrun.org; a list of sponsors and sponsorship information is also available there. In 2012, approximately 200 people participated in the race, and the event raised nearly $4,000.

Tenth Circuit: Unpublished Opinions, 4/15/13

On Monday, April 15, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

United States v. Fivaz

United States v. Lochmiller

Childs v. GEO Group

Hall v. Hupp

No case summaries are provided for unpublished opinions.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

Colorado Court of Appeals: Workers’ Compensation Claimant Jurisdictionally Barred from ICAO Review Because Petition Untimely Filed

The Colorado Court of Appeals issued its opinion in Youngs v. Industrial Claim Appeals Office on Thursday, April 11, 2013.

Workers’ Compensation—Worsening Condition—CRS § 8-43-301(2).

In this workers’ compensation action, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed.

This was claimant’s third appeal arising from his 2005 workers’ compensation claim. Claimant filed a petition to reopen his claim based on worsening condition and fraud. Employer and its insurer sought to have the fraud claim dismissed for failure to establish the elements to support his request to reopen. The administrative law judge (ALJ) agreed and dismissed the fraud claim. The Industrial Claim Appeals Office (Panel) affirmed the ALJ’s order rejecting claimant’s evidentiary and due process challenges.

A hearing was conducted on the worsening condition claim. The ALJ found employer’s retained independent medical examination (IME) physician’s testimony credible and persuasive, and discredited claimant’s testimony as “implausible, inconsistent, and unsupported by the medical records.” She denied and dismissed his petition to reopen based on worsening condition.

On July 15, 2011, claimant filed his petition to review the ALJ’s order regarding fraud, and on July 18, 2011, he filed his petition regarding worsening condition. The Panel affirmed the latter order and determined it lacked jurisdiction to review the former. Claimant appealed.

The Panel dismissed claimant’s appeal for lack of jurisdiction because it was interlocutory and he had failed to file his petition to review within the applicable twenty-day statutory time period after it became final. On June 24, 2011, ALJ Cain granted partial summary judgment to employer dismissing the petition to review based on fraud, but allowed the remaining claim to proceed (the interlocutory order). On June 27, that order was mailed. On June 29, a hearing on the worsening condition claim was heard by ALJ Jones. On July 15, claimant submitted his petition to review ALJ Cain’s order. On the same day, ALJ Jones denied and dismissed the petition to review based on worsening condition. On July 18, that order was mailed. On July 18, claimant submitted his petition to review only ALJ Jones’s order.

CRS § 8-43-301(2) provides that a petition to review an ALJ order “shall be filed within twenty days after the date of the certificate of mailing of the order.” A party missing this time limit is jurisdictionally barred from obtaining further review of the order.

Claimant argued that he was entitled to automatic review of ALJ Cain’s order when he filed a timely petition for review of ALJ Jones’s order. The Court of Appeals disagreed, finding no authority for such an argument. The Panel correctly determined it had no jurisdiction to review ALJ Cain’s order.

In addition, under CRS § 8-43-301(2), claimant was required to submit a petition to review ALJ Cain’s order after ALJ Jones issued her final order. Filing the petition before ALJ Cain’s interlocutory order became final and appealable does not satisfy the statutory requirement, because it was not within the permissible twenty-day filing period. The Panel therefore had no jurisdiction.

Claimant also challenged the merits of ALJ Jones’s order denying and dismissing his petition to re-open based on worsening condition. ALJ Jones found that claimant failed to establish that his right shoulder pain was related to and caused by his work-related injury to his left shoulder. The Court found the record supported the ALJ’s decision and there was no abuse of discretion in her evidentiary rulings.

Summary and full case available here.

Colorado Court of Appeals: Defendant Who Committed Non-Homicide Crimes as a Juvenile Sentenced Correctly Because Opportunity Exists for Parole

The Colorado Court of Appeals issued its opinion in People v. Lucero Jr. on Thursday, April 11, 2013.

Crim.P. 35(b)—Sentencing—Juvenile—Life Without Parole.

Defendant appealed the trial court’s order denying his Crim.P. 35(b) post-conviction motion seeking reduction of his aggregate eighty-four-year sentence for non-homicide crimes he committed as a juvenile. The order was affirmed.

In 2008, defendant was convicted of conspiracy to commit first-degree murder, attempted first-degree murder, and two counts of second-degree assault. The sentences for all were aggravated as crimes of violence. Defendant was 15 at the time of the incident giving rise to his convictions, but he was charged and tried as an adult.

On appeal, defendant asserted that his sentence violates the Cruel and Unusual Punishments Clause of the federal constitution’s Eighth Amendment and article II, § 20 of the Colorado Constitution. In Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010),the U.S. Supreme Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes. Defendant argued that his sentence constitutes a de facto LWOP sentence. Defendant will be eligible for parole when he is 57 years old. Because defendant’s sentence provides a meaningful opportunity for release, however, it does not amount to LWOP.

Summary and full case available here.

HB 13-1271: Creation of a Child Abuse Reporting Hotline

On March 18, 2013, Rep. Jonathan Singer and Sen. Linda Newell introduced HB 13-1271 – Concerning Methods to Respond to Initial Contacts Made to a Child Abuse Reporting Hotline System, and, in Connection Therewith, Authorizing the State Board of Human Services to Adopt Rules Governing the Hotline System and Providing Consistent Practices in Response to Contacts and to Reports of Known or Suspected Child Abuse or Neglect. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As introduced, the bill authorizes the creation of a child abuse reporting hotline system (hotline system) that provides a uniform method of contact that directly, immediately, and efficiently routes the person to the applicable entity responsible for accepting a report about possible child abuse or neglect, and that is advertised to the public as a place for reporting known or suspected child abuse or neglect (report) or for making a request for information or services (an inquiry). The hotline system will be developed through a statewide child abuse hotline steering committee (steering committee) that includes state, county, and comprehensive and appropriate stakeholder representation.

The bill declares that the purpose of the hotline system is to enhance the current child welfare system and to provide an additional option for the public to make an initial report or inquiry. The bill further states that a county department of social services (county department) will retain screening responsibilities, unless the board of county commissioners of that county has approved the use of the hotline system on behalf of the county and such arrangement has been approved by the executive director of the state department of human services (state department).

The purpose of the steering committee is to develop an implementation plan for the hotline system to be advertised to the public and to make recommendations for rules relating to the hotline system and providing consistent practices in response to reports and inquiries. The steering committee shall submit a report no later than July 1, 2014, containing its recommendations to the executive director of the state department, who shall provide the report to the state board of human services (state board).

The hotline system will provide some method of contact to the public that is available 24 hours a day, 7 days a week. The hotline system shall be operational and publicized to the public statewide no later than Jan. 1, 2015.

With the express written consent of the board of county commissioners, a county department may request that the state department assist that county department with taking reports of possible child abuse and neglect and inquiries from the public. The executive director must approve of this arrangement in writing.

The state board is given rule-making authority to adopt rules, based upon the recommendations of the steering committee, governing the following:

  • The type of technology that may be used by the hotline system for directly routing initial contacts from the hotline system to the applicable entity responsible for taking a report or responding to an inquiry, including but not limited to a single statewide toll-free telephone number, with flexibility to adapt the methods to changing and emerging technologies as appropriate;
  • The operation of the hotline system, including the central record-keeping and tracking of reports and inquiries statewide, and a requirement that record-keeping and tracking of reports and inquiries be accessible to all counties;
  • Standards and steps for information and referral (instances where there is no report of abuse or neglect but the person contacting the county department or the hotline system is making an inquiry);
  • How an initial contact to the hotline system is directly routed to the applicable entity responsible for taking a report or responding to an inquiry;
  • A formal process for a county department to opt to have the state department receive reports or inquiries on behalf of the county department after hours subject to a requirement that the board of county commissioners must officially approve the use of the hotline system on behalf of the county and that the arrangement must be approved by the executive director;
  • A process for a county department to opt to have another county department receive reports or inquiries on behalf of the county department after hours or on a short-term basis with notification of such arrangement to the executive director;
  • Standardized training and certification standards for all staff prior to receiving reports and inquiries;
  • A consistent screening process with criteria and steps for the county department to respond to a report or inquiry;
  • A consistent decision-making process with criteria and steps for a county department to follow when deciding how to act on a report or inquiry and when to take no action on a report or inquiry.

The state department is directed to report about the hotline system and the adoption of rules as part of the state department’s annual SMART act presentations to the general assembly.

The bill makes conforming amendments to the statutes concerning reports made by the public or by a mandatory reporter to allow a report to be made through the hotline system when the county commissioners have given prior approval for the report to be filed through the hotline system and the executive director of the state department has approved such an arrangement.

On April 9, the Public Health Care & Human Services Committee amended the bill and referred it to the Appropriations Committee for consideration of the fiscal impact to the state.

Since this summary, the bill was amended in the Appropriations Committee and sent to the Committee of the Whole for Second Reading.

HB 13-1268: Requiring Separate Disclosure in Sale of Real Property Regarding Separate Ownership of Mineral Estate

On March 18, 2013, Rep. Dominick Moreno and Sen. Mary Hodge introduced HB 13-1268 – Concerning a Disclosure of Possible Separate Ownership of the Mineral Estate in the Sale of Real Property. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a seller to disclose in the sale of real property that a separate mineral estate may subject the property to oil, gas, or mineral extraction. A standard disclosure or a substantially similar disclosure is required. A seller that provides this disclosure is not liable for any damages of the purchaser from oil, gas, or mineral extraction. The bill cleared the House on April 2 and is assigned to the State, Veterans, & Military Affairs Committee in the Senate.

HB 13-1279: Instructing Courts to Seek to Limit Premature Waiver of Counsel by Juveniles

On March 25, 2013, Rep. Jeanne Labuda introduced HB 13-1279 – Concerning Detention Procedures for Juveniles. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill instructs the courts in juvenile cases to seek to limit premature waiver of counsel by a juvenile in detention hearings. The bill also requires juveniles to be free of physical restraints during hearings unless the court makes specific findings of fact to the contrary that allow for physical restraints to maintain order in the courtroom, prevent the juvenile’s escape, or provide for the safety of the courtroom.

The bill was introduced on March 25 and was assigned to the Judiciary Committee; the bill is scheduled for committee review on April 16 at 1:30 p.m.

Since this summary, the bill was amended by the Judiciary Committee and referred to the House Committee of the Whole for consideration on Second Reading.