April 21, 2018

Archives for March 27, 2014

Winds of Change (Part 6): Learning to Think Like a Lawyer an Entrepreneur

rhodesA June 2011 NBC News story profiled law grads who went solo. They’ve got hutzpah, no doubt:

“I say screw the economy. You worked hard, you got your law degree, so make something happen with it.”

Where did they learn the entrepreneurial ropes? Not at law school. Here’s what they said about that:

“Law schools are not equipped to help you start your own firm.”

“I love some of the classes I took at [law school], but virtually none of them are useful.”

“Considering this amount of debt and that most classes deal with theory rather than everyday, practical law… three years of law school are unnecessary and should be shortened.”

“There’s a whole economic engine behind law practice and to not get that business side of it in law school sucks.”

That’s not the case everywhere. The NBC News article tells this story:

When Dr. Silvia Hodges first proposed a “Law firm as a business” course, Sheila Foster, the associate dean for academic affairs of Fordham University School of Law, was skeptical.

“I wasn’t completely convinced that was a subject that our students would catch on to, so I asked her to further develop the concept,” Foster said.

But Hodges remained persistent. Now students consider the law firm management class and the law firm marketing class Hodges recently began teaching among the most useful courses at the school.

“Just having that technical knowledge is not enough in today’s world anymore. They need a more well-rounded picture,” Hodges said.

Chetson agrees, saying that if law schools really want to place their students in good jobs, they need to teach them to be self-sufficient.

Closer to home, I was recently interviewed by a CU Law student as part of an assignment for a class led by Dean Weiser, in furtherance of his commitment to promoting the “New Normal of legal entrepreneurship.

Private initiatives have also stepped up to fill the gap. Solo Practice University bills itself as “The Practice of Law School” that “picks up where your law education left off.” It offers web-based instruction and opportunities for virtual networking. The Lawyerist blog is chock full of practice management how-to’s. There are others, too – a whole new industry forming around the need to educate and support legal professionals as the practice of law reinvents itself.

The days of hiring law students who’ve been taught to think like lawyers and hoping they’ll learn business development and practice management skills by osmosis are over. The winds of change are blowing; they’re bringing in a sea change. Some lawyers are embracing it, and some are literally dying from it. How about you? Are you sails up, or are you battening down the hatches?

(For those who might be interested, a couple new ABA publications related to topics I’ve been writing about in this series came to my attention this week. One is about reinventing the practice of law, and the other is about different generations working effectively together.)

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Karen L. Brody Appointed to Denver District Court Bench

On Wednesday, March 26, 2014, Governor Hickenlooper appointed Karen L. Brody as District Court Judge in the Second Judicial District. She will fill a vacancy created by the retirement of Hon. Norman Haglund, effective April 18, 2014.

Ms. Brody is currently a member of Lowe, Fell & Skogg, LLC, where she practices commercial, real estate, and eminent domain litigation. Prior to this, she worked at Otten, Johnson, Robinson, Neff & Ragonetti, P.C. as a litigation associate. She received her bachelor’s degree and J.D. from the University of Denver, where she was in the Order of St. Ives, and she received an M.A. in Economics from Tufts University.

Tenth Circuit: Preliminary Injunction Enjoining Implementation of Legislation That Restricted Federal Funding to Two Kansas Planned Parenthood Facilities Vacated

The Tenth Circuit Court of Appeals published its opinion in Planned Parenthood of Kansas and Mid-Missouri v. Moser on Tuesday, March 25, 2014.

The federal government subsidizes the cost of family-planning services for low-income individuals through Title X of the Public Health Service Act, codified at 42 U.S.C. §§ 300–300a-6. Although Title X  authorizes direct federal grants to service providers, most Title X funds flow initially to state and local  governmental agencies. Nonprofit organizations function as intermediaries that distribute the funds to subgrantees who administer the programs. Kansas is one such state.

If a grantee or subgrantee materially fails to comply with any term of an award, the awarding agency may temporarily withhold payments, disallow funding to cover the cost of the noncomplying activities, terminate the award, withhold further awards, or pursue other legally available remedies.

In May 2011, Kansas Governor Sam Brownback signed into law appropriations bill § 107(l) restricting the classes of entities eligible for Title X subgrants. It limited the recipients to public entities, hospitals, and federally qualified health centers (FQHC) that provide comprehensive primary and preventative healthcare services. This restriction disqualified two family-planning clinics operated by Planned Parenthood of Kansas and Mid-Missouri (Planned Parenthood). These Planned Parenthood facilities performed abortions. Planned Parenthood sued Governor Brownback and Robert Moser, MD, in his capacity as the Secretary of the Kansas Department of Health and Environment (KDHE) for declaratory and injunctive relief, challenging the legislation on the grounds that (1) it violated Title X and was unconstitutional under the Supremacy Clause; (2) it violated Planned Parenthood’s First Amendment rights by penalizing it for associating with providers of abortion and for its advocacy of access to abortion services; and (3) it violated the Fourteenth Amendment by imposing an unconstitutional burden on the rights of women to choose abortion (a claim not raised on appeal).

Ruling that Planned Parenthood had established a likelihood of success on the merits of the first two claims and had otherwise satisfied the requirements for a preliminary injunction, the district court granted the preliminary injunction and enjoined KDHE from implementing the legislation. Accordingly, it enjoined any further enforcement or reliance on Section 107(l) and ordered Moser to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l).

Moser challenged the injunction in the Tenth Circuit on several grounds, most of which the Tenth Circuit did not address. As to the Supremacy Clause claim, the court held that Planned Parenthood could not  establish a likelihood of success on the merits because there was no private cause of action for injunctive relief for the alleged violation of Title X under the Supremacy Clause. The court held that when actual or threatened state action is allegedly contrary to a federal statute, the Supremacy Clause does not necessarily authorize an injunction against the state action when four conditions are all satisfied: (1) the statute does not specifically authorize injunctive relief, (2) the statute does not create an individual right (which may be enforceable under 42 U.S.C. § 1983), (3) the statute is enacted under the Constitution’s Spending Clause, and (4) the state action is not an enforcement action in adversary legal proceedings to impose sanctions on conduct prohibited by law.  The Tenth Circuit concluded that Planned Parenthood had no cause of action under Title X to enjoin the application of § 107(l). The court held Title X simply did not contemplate enforcement through private suits for injunctive relief.

The court noted that § 107(l) does not prohibit Planned Parenthood from doing anything. It does not say that all health-care providers must offer comprehensive care. It does not even prohibit those who do not offer comprehensive care from providing family-planning services. Planned Parenthood can continue to do so. The statute says only that the State will not subsidize family-planning services provided by those who do not offer comprehensive care.

As to the First Amendment claim, the court stated that the challenge would be rejected unless retaliation against the protected conduct was a substantial or motivating factor for taking the action and the official would not have taken the same action in the absence of the protected conduct. The court held that neither of these contexts was present in this case. The first was absent because nothing in § 107(l) prohibited Planned Parenthood from advocating abortion rights or associating with abortion providers. Second, the Tenth Circuit expressed reluctance to invalidate a law because of the process by which it was enacted. Planned Parenthood could not establish a likelihood of success because the legislation did not restrict the rights of speech or association of Planned Parenthood and the motives of individual lawmakers in enacting § 107(l) were irrelevant.

The court VACATED the preliminary injunction, REVERSED and REMANDED for further proceedings.

 

Tenth Circuit: Unpublished Opinions, 3/25/2014

On Tuesday, March 25, 2014, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

United States v. Braimah

United States v. Juarez-Sanchez

Drum v. Northrup Grumman Systems

Gray v. Farris

United States v. Pettigrew

Crawford v. Colvin

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 14-1260: Adjusting Presumptive Ranges for Sexual Intrusion Crimes Against Children 12 and Under When Perpetrator is At Least 10 Years Older

On February 3, 2014, Rep. Mike Foote and Sen. Mike Johnston introduced HB 14-1260 – Concerning the Creation of Three Mandatory Minimum Presumptive Ranges for Defendants Convicted of a Felony Sex Offense Involving Intrusion Against a Child who is Under 12 Years of Age when the Adult Defendant is at Least 10 Years Older that has One of the Ranges Starting at 10 Years as the Minimum in the Range, and, in Connection Therewith, Creating an Indeterminate Lifetime Sentence with a Mandatory Minimum Presumptive Range of 10 to 16 Years for a Class 4 Felony; a Mandatory Minimum Presumptive Range of 18 to 32 Years for a Class 3 Felony; and a Mandatory Minimum Presumptive Range of 24 to 48 Years for a Class 2 FelonyThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a court to impose a sentence within an indeterminate minimum presumptive range to a maximum of the offender’s life upon an adult offender if he or she commits a class 2, class 3, or class 4 felony sexual assault that includes intrusion or penetration against a child who is under 12 years of age at the time of the offense and the offender is at least 10 years older than the child. For a class 2 felony the presumptive range is 24 to 48 years, for a class 3 felony it is 18 to 32 years, and for a class 4 felony it is 10 to 16 years.

The bill passed out of the House on March 18. On March 21, the bill was assigned to the Senate Judiciary and Appropriations Committees.

HB 14-1257: Allowing Audit of Colorado Health Benefit Exchange/Connect for Health Colorado

On February 3, 2014, Reps. Jerry Sonnenberg & Dan Nordberg and Sens. David Balmer & Steve King introduced HB 14-1257 – Concerning the Authority of the State Auditor to Conduct a Performance Audit of the Colorado Health Benefit Exchange. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Legislative Audit Committee

The bill allows the state auditor to conduct a performance audit of the Colorado health benefit exchange and submit a written report to the legislative audit committee with any findings and recommendations. The authority to conduct performance audits continues as long as the state auditor or the legislative audit committee deems it appropriate.

The bill passed out of the House on March 7. On March 12, the bill was assigned to the Senate Health & Human Services Committee.

Since this summary, the bill was postponed indefinitely in the Senate on March 26, 2014.

SB 14-161: Implementing Provisions of the Voter Access and Modernized Elections Act of 2013

On March 18, 2014, Sen. Jessie Ulibarri introduced SB 14-161 – Concerning the Modernization of Provisions of the “Uniform Election Code of 1992” that Ensure Voter Access for Eligible Electors, and, in Connection Therewith, Reducing the Deadline by which a Voter Registration Application Must be Submitted Via Certain Methods, Altering Procedures Pertaining to National Change-of-Address Searches, Allowing Emergency Ballots to be Obtained for Nonmedical Reasons, Amending Provisions Relating to Military and Overseas Voters, Increasing the Penalty for Providing False Residential Information, and Making the Aiding or Abetting the Provision of False Residential Information a New Felony Offense. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The “Voter Access and Modernized Elections Act,” enacted in 2013, made various changes to the “Uniform Election Code of 1992.” To facilitate implementation of that act and the conduct of elections generally, the bill makes various corrections, clarifications, and alterations to the code.

The bill defines the term “post office box” as compartments on premises administered by the United States postal service or other commercial mail service entity.

Currently, when a person moves from one county or precinct in the state to another with the intention of making the new county or precinct his or her permanent residence, the person is considered to reside in that new county or precinct. The bill modifies this provision to apply to any in-state changes of residence when the elector intends the new residence to be his or her sole legal place of residence.

Various deadlines apply by which voter registration must be completed, depending on the method of application. The bill imposes the same deadline (i.e., eight days prior to the date of an election) for voter registration applications by any method of submission, except for applications submitted through voter registration drives or at voter service and polling centers (VSPCs). Further:

  • The bill requires a person to register to vote on or before the eighth day before an election in order to receive a mail ballot for that election;
  • The bill clarifies the time during which voter registration applications may be submitted at VSPCs for elections, other than general elections, coordinated by a county clerk and recorder; and
  • The bill allows voter registration applications to be processed after the 8-day deadline, though voters so registering must still obtain ballots in person.

Currently, to change an address or political party affiliation using the on-line voter registration system, an elector is required to provide the last four digits of his or her social security number. The bill makes the provision of this information optional. The bill also eliminates the requirement that a county clerk and recorder send a nonforwardable postcard to an elector’s former address of record after the elector effects a change of residence using the on-line voter registration system.

The bill harmonizes the self-affirmation a person makes when registering to vote with the statutory residency requirements.

Regarding the monthly national change of address search that the secretary of state must undertake, the bill:

  • Specifies that the search must be performed using the database maintained by the United States postal service;
  • Allows elector registration records to be changed only if the elector has signified that his or her move was permanent;
  • When a search indicates that an elector has added or changed a post office box, directs the county clerk and recorder to update only the elector’s deliverable mailing address and to notify the elector of such change by sending him or her a conformation card;
  • Repeals the prohibition on changing an elector’s record within 60 days of a primary or general election; and
  • Requires that electors who appear, pursuant to such change of address search, to have moved within a county be treated the same whether active or inactive, requires the new addresses of such electors be kept current when confirmation cards mailed to their old addresses are returned as undeliverable.

Because registration records are maintained and accessible electronically, the bill removes obsolete requirements that county clerk and recorders maintain original records at their offices.

The bill makes the use of ballot stubs and duplicate stubs optional and repeals provisions relating to acceptance and processing of those stubs and instead requires election judges to issue credit for ballots provided to each elector in the voter registration list.

The bill eliminates the requirements for electors to manually write in signature card information and instead directs election judges to prepare signature cards using elector information contained in the on-line voter registration system for those cards. The bill also harmonizes the self-affirmation contained on signature cards with those that appear on return envelopes for voted mail ballots.

The bill consolidates provisions pertaining to persons who assist electors with disabilities or who do not speak English. As a result of this consolidation, the bill makes a conforming amendment, and updates terminology pertaining to the physical area in which an elector votes.

The bill modifies the bases on which VSPCs are required for certain elections.

With respect to military and overseas voters:

  • The bill clarifies that ballots cast in accordance with the “Uniform Military and Overseas Voters Act” (UMOVA) are deemed timely and are counted pursuant to that act;
  • In the same way that children are covered by the UMOVA, the bill adds spouses and civil union partners of UMOVA-covered voters who are United States citizens to the purview of that act;
  • The bill removes the deadline by which an election official must receive a declaration from such voters in order for processing prior to an election; and
  • The bill deems electronic requests for ballots to be timely if received any time through seven days prior to election day.

Currently, an elector may obtain an emergency replacement ballot if he or she, or a member of his or her family, is confined to a hospital or residence on election day. The bill allows electors to obtain and vote such ballots for nonmedical reasons, including natural disasters.

The bill requires a self-affirmation on a mail ballot to be signed by the elector, and not a person acting on the elector’s behalf, to be valid.

The bill makes corrections to the bases on which the residency or age of voters are challenged.

With regard to criminal offenses relating to elections:

  • The bill makes the tampering with, or unauthorized opening of, a ballot box a class 5 felony.
  • Currently, the offense of knowingly giving false information regarding an elector’s place of present residence constitutes a class 6 felony. The bill makes that offense a class 5 felony.
  • The bill makes knowingly aiding or abetting an elector in committing the offense of knowingly giving false information as to the elector’s place of present residence a class 6 felony.

Currently, county clerks and recorders are directed to verify the changes of addresses of voters who, pursuant to information received from the United States post office or a driver’s license examination facility, appear to have moved in-state. The bill repeals this verification requirement.

The bill is assigned to the State, Veterans, & Military Affairs Committee.

Since this summary, the State, Veterans, & Military Affairs Committee referred the bill, amended to the Appropriations Committee, and the Appropriations Committee referred the bill, amended, to the Senate Committee of the Whole.

SB 14-160: Removing Time Limitation on Transitional Living Programs for Persons with Brain Injuries

On March 17, 2014, Sen. Linda Newell introduced SB 14-160 – Concerning Removing Limitations on a Transitional Living Program for a Person with a Brain Injury. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, for persons with a brain injury, the transitional living program is limited to a 6- to 12-month period. The bill removes this limitation.

The bill is assigned to the Health & Human Services Committee.