November 23, 2017

Archives for May 2014

Hon. Richard Gabriel Awarded Highest Honor from Denver Bar Association

This is Part 1 of a series of posts about the DBA Award winners. The article originally appeared in the May 2014 issue of The Docket.

GabrielLawyer. Judge. Trumpet Player. These are just a few of the words that describe Richard Gabriel—and none of them comes close to doing him justice. The two-dimension descriptions don’t catch what makes Judge Gabriel so unique—because he’s also the kid from Brooklyn with big dreams, an avid music lover, a grateful mentor, a social enthusiast, a proud family man, and most of all, a consummate professional.

“As a lawyer, you have your credibility and integrity. Once you lose that, you can’t get it back,” Gabriel says. “It’s critically important to take the high road regardless of what your opponent does.”

Gabriel is clearly the rare example of someone who lives by his words. He was the first generation in his family to attend college—at Yale, no less. After graduation, he went on to law school at the University of Pennsylvania. Gabriel spent more than 18 years at Holme Roberts & Owen before being appointed a judge on the Colorado Court of Appeals.

“I’ve been extremely fortunate to have people and opportunities that opened doors for me,” Gabriel says. “And that’s something, as a mentor, I’ve tried to do for others—it’s part of giving back.”

Citing Dan Hoffman as one of his great mentors, Gabriel says that he gave him the “case of a lifetime.” He worked with Hoffman on a Michael Jackson copyright case, in which a Denver woman claimed she had written Jackson’s hit “Dangerous.” This led to more opportunities for Gabriel to mix his two passions: the law and music. After working on another case for Sony years later, Gabriel was asked to be Local Counsel for Colorado, and later became the Lead National Counsel for the Recording Industry Association of America in its lawsuits against illegal file-sharers.

A strong sense of discipline makes Gabriel successful not only in the law, but also in music. He stills plays his trumpet an hour every day, and can often be found around town playing gigs with groups such as the Colorado Wind Ensemble.

Throughout his impressive career, Gabriel has been a consistent voice advocating for increased professionalism and civility. He explains: “On this side of the bench, I can confirm that Rambo lawyering doesn’t work. You just lose credibility.”

If you need proof that the highest levels of professionalism and civility build a lasting career, look no further than Award of Merit winner Judge Gabriel. He has impacted the legal community in countless ways, from his involvement in the bar association to his renowned work ethic and reputation.

“I’m very surprised and very touched,” Gabriel said of the honor.

Surprised, Judge Gabriel? We can’t think of anyone who is more deserving.

 

 

Nominees Selected for Sedgwick County Court Judgeship

On Thursday, May 29, 2014, the Colorado State Judicial Branch announced the selection of three nominees for appointment to the bench of the Sedgwick County Court in the Thirteenth Judicial District. The three finalists are Pamela Kler of Julesberg, Tara Neugebauer of Ovid, and Kelly Lowery of Omaha, Nebraska. The appointed nominee will fill a vacancy created by the resignation of Hon. Tawna Holmstedt, effective April 30, 2014.

The governor has 15 days from May 30 in which to appoint one of the nominees to the bench. Comments regarding any of the nominees may be submitted to the governor at gov_judicialappointments@state.co.us. Contact information for the nominees is available on the State Judicial website.

Colorado Supreme Court: Defendant Not in Custody When He Made Inculpatory Statements

The Colorado Supreme Court issued its opinion in People v. Begay on Tuesday, May 27, 2014.

Miranda Advisement—Custodial Interrogation—Suppression of Statements.

In this interlocutory appeal, the People challenged the trial court’s order suppressing statements defendant made while waiting for a “show-up” identification and before having received a Miranda advisement,. The trial court trial noted that whether a defendant is in custody is an objective assessment; however, under the totality of the circumstances, a reasonable person would not have believed that he or she was free to leave that situation.

The People conceded that defendant’s questioning constituted interrogation, but they contended that he was not in custody until he was formally arrested. They argued that the trial court erred by applying the wrong legal standard when it analyzed whether defendant felt “free to leave” instead of whether a reasonable person in defendant’s position would have believed himself to be deprived of his freedom to a degree associated with a formal arrest.

The Supreme Court agreed, finding that defendant was not in custody for the purposes of Miranda until he was formally arrested and read his Miranda rights. The trial court erred by suppressing the statements after applying the standard governing seizure under the Fourth Amendment instead of custody under the Fifth Amendment. Accordingly, the trial court’s suppression order was reversed and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Insurer May Offset Amount of Uninsured Motorist Benefits by MedPay Benefits Already Paid

The Colorado Court of Appeals issued its opinion in Calderon v. American Family Mutual Insurance Co. on Thursday, May 22, 2014.

Setting Off Uninsured/Underinsured Motorist Benefits—“Coverage” Versus “Benefit.”

Calderon sustained multiple injuries in an automobile accident with an uninsured driver, requiring him to seek medical treatment and miss work. Calderon was insured by American Family Mutual Insurance Co. (American Family) under an insurance policy providing a total of $300,000 in uninsured/underinsured motorist (UM/UIM) coverage and $5,000 in medical payment (MedPay) coverage.

After the accident, American Family paid Calderon $5,000 under the policy’s MedPay provision. Calderon filed a claim under the UM/UIM provision, but the parties could not agree on the benefit amount due. Calderon sued for breach of contract, violation of CRS § 10-3-115, and breach of the duty of good faith and fair dealing.

A jury returned a verdict of $68,338.97 in favor of Calderon, including $34,394.65 for past medical expenses. The trial court reduced the amount awarded by $5,000 to set off the medical payments Calderon had already received. After adding prejudgment interest, judgment was entered against American Family in the amount of $77,459.

On appeal, Calderon argued he was entitled to the full amount awarded by the jury because CRS §§ 10-4-609(1)(c) and -635(3)(b)(II) prohibited the trial court from setting off his UM/UIM benefits by the amount of MedPay benefits he received. The Court of Appeals disagreed.

The Court noted that setoff is not allowed where the benefits are impaired, but it is allowed to prevent a double recovery. Calderon argued that the statutory sections expressed a legislative intent to prevent insurance companies from using a MedPay setoff to reduce UM/UIM benefits. The Court found that Calderon was incorrectly equating the term “coverage” with the term “benefit.” The sections prohibit a reduction in coverage by a setoff from another coverage but not a benefit. “Coverage” refers to the upper limit for which an insurer may be liable; “benefit” refers to the actual payments made under the policy. Here, Calderon’s UM/UIM coverage was not reduced (he was awarded $68,338.97 with coverage limits of $300,000), but the amount he was awarded was properly reduced by the $5,000 he had already received.

Calderon also argued that the setoff provision was void as against public policy. The Court found that the insurance policy did not dilute, condition, or limit his statutorily mandated coverage and therefore was not void as against public policy. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Inmate Correctly Charged with Possessing Contraband Under Language of Code of Penal Discipline

The Colorado Court of Appeals issued its opinion in Dawson v. Executive Director of the Colorado Department of Corrections on Thursday, May 22, 2014.

Prison Disciplinary Conviction.

In September 2012, Dawson was assisting another inmate with a legal matter. On his way back to the living area, Dawson was carrying the other inmate’s legal papers, but was not accompanied by the inmate. Prison officials charged Dawson with unauthorized possession, a class 2 violation of the Code of Penal Discipline (Code).

The hearing officer determined that the legal papers became contraband when Dawson possessed them outside the presence of the inmate to whom the papers belonged. He was found guilty of unauthorized possession, and the conviction was upheld on administrative review.

Dawson challenged his disciplinary conviction in district court under CRCP 106(a)(4). The district court affirmed. On appeal, Dawson argued that his conduct did not violate the Code. The Court of Appeals disagreed.

Review was limited to whether prison officials exceeded their jurisdiction or abused their discretion. A disciplinary decision must be upheld if there is some evidence to support it.

The Code defines “contraband” as any item that an offender is not specifically authorized to have in his or her possession. The regulation clearly covers possessing another inmate’s legal documents outside the presence of the owner. Because the evidence supported that Dawson possessed contraband in violation of the Code, Dawson was guilty of unauthorized possession and the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 5/29/2014

On Thursday, May 29, 2014, the Colorado Court of Appeals issued no published opinion and 43 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 5/29/2014

On Thursday, May 29, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Bellman v. i3Carbon, LLC

Romero v. Colvin

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

Enlightenment Made Simple (Part Two): Evolution’s Case for Enlightenment

rhodesWe wouldn’t want enlightenment if we couldn’t have it. All those things we called “enlightenment” last time – less stress, more peace, more freedom and autonomy, more meaning, satisfaction, fulfillment, purpose – are there for the taking.

At least, evolutionary neurology thinks so. I found that out recently when I tackled a stack of books on the subject. The books weren’t exactly a beach read; they went back to the library mostly unread, but not before leaving me with two astounding bits of awareness.

First, creation evolves. That’s a fact – not a desire or aspiration, not a random shot in the dark, not a maybe or a guess, but a fact. Every created thing is encoded with an irrepressible urge for growth, change, improvement, progress.

Second, evolution is efficient. It doesn’t waste itself on what isn’t going to happen. It plays its hand carefully, places bets where the odds are good. No, it’s not infallible, but its batting average is enviable.

Put those two ideas together, and that’s why enlightenment is possible for all of us, not just for people who can sit in the lotus position. “Life, liberty, and the pursuit of happiness” aren’t just political ideals, they’re an evolutionary impulse evident in the wide world and embedded in the human soul. That dynamic isn’t only in us, but in everything we create – personally, professionally, artistically, and otherwise. We were born this way, and we endow everything we create with the same energy.

Which is why we’re going to see more Star Wars movies.

You’ve heard the quote, “’Whatever the mind can conceive and believe, it can achieve.” Napoleon Hill said that in his 1937 self-help classic Think and Grow Rich. I confess – that’s another book that went back to the library mostly unread. Maybe the book isn’t my cup of tea, but the quote is neurologically defensible: if our brains have evolved to the place where they can hold big ideas about how wonderful our lives can be, then they’re probably ready to take on the project.

We quickly dismiss our big ideas as pipedreams. We might want to rethink our practice, suspend our skepticism, and entertain those ideas instead. The notion that they might become reality isn’t just positive thinking, it’s a possibility supported by evolutionary neurology. Maybe we can’t get all the way to the top of the mountain just by thinking positively, but we can make a start, knowing the odds of getting there are probably better than we think.

If enlightenment is so possible, then why don’t we just grab it? Ah, not so fast, Grasshopper! Probably we don’t leap into the arms of bliss because we know it’s going to cost us. We talked a little about that last time. We’ll talk more about it next.

To be continued.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. He has also been in and out of the practice more times than anyone can count, and his reflections on that topic will appear in an upcoming article in The Colorado Lawyer. He also plans to publish a book on that topic later this year. He’s a certified mentor with the Colorado Attorney Mentoring Program, offers career and performance coaching, and leads workshops for a variety of audiences, including University of Denver Law School, the CBA’s Solo and Small Firm Section, and the CBA’s Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Colorado Supreme Court: Dog, Not Property, Should Be Under Control of Owner for Exemption from Liability for Dog Bite

The Colorado Supreme Court issued its opinion in Robinson v. Legro on Tuesday, May 27, 2014.

Civil Actions Against Dog Owners—Working Dog Exemption—Statutory Interpretation.

The Supreme Court interpreted for the first time the phrase “on the property of or under the control of the dog’s owner” within the working dog exemption of Colorado’s civil dog bite statute, CRS § 13-21-124(5)(f). The Court held that the working dog exemption applies when a bite occurs on the dog owner’s property or when the dog is working under the control of the dog owner. Therefore, the court of appeals erred in interpreting CRS § 13-21-124(5)(f) to mean that the property, rather than the dog, must be under the dog owner’s control for purposes of exemption from strict liability. Although the court of appeals erred in interpreting the statute, it correctly reversed the district court’s summary judgment order as to respondents’ claim under the dog bite statute. Accordingly, the judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Statements to Deputy were Voluntary and Need Not Be Suppressed

The Colorado Supreme Court issued its opinion in People v. McIntyre on Tuesday, May 27, 2014.

Suppression of Statements—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing inculpatory statements made by defendant. The trial court found that defendant did not voluntarily make the statements. The Supreme Court disagreed, holding that, when considering the totality of the circumstances, the police did not improperly coerce defendant into making the statements and defendant instead spoke voluntarily. Accordingly, the Court reversed the trial court’s suppression order and remanded the case to the trial court.

Summary and full case available here.

Colorado Court of Appeals: Potential Father Entitled Appointed Counsel in Termination of Parental Rights Hearing

The Colorado Court of Appeals issued its opinion in In re Petition of R.A.M. on Thursday, May 22, 2014.

Parental Rights—Termination—Due Process—Right to Counsel.

Mother filed a petition to relinquish her parental rights to the child and named father as the only potential father of the child. With her petition for relinquishment, mother also filed a petition to terminate father’s parental rights. Father was served the petition, summons, and notice to terminate in jail. Father responded to the petition by indicating that he did not wish to relinquish his rights. The court proceeded to hearing without advising father of his rights or considering his request for counsel, and began the hearing without father’s presence. After considering the matter, the court found by clear and convincing evidence that father was the child’s parent. The court agreed with the adoption agency’s interpretation of the relinquishment statute and found that the law required that father be able to assume legal and physical custody of the child “at the time of the hearing.” Because father was incarcerated and thus unable to assume legal and physical custody of the child that day, the court granted the petition and terminated father’s rights.

On appeal, father contended that the trial court violated his due process rights when it failed to appoint counsel for him at the termination hearing. The Court of Appeals agreed. First, father sufficiently expressed his desire for the assistance of counsel. Also, father had an important interest, the state’s interest was not weak, and the risk of error in this case was extremely high. Before the hearing, neither the petition to terminate his rights, nor the notice to terminate his rights or the summons advised father of the allegation to be proven at the hearing: that he cannot personally assume legal and physical custody of the child, taking into account the child’s age, needs, and individual circumstances. Therefore, taking into consideration all of these factors, father had a due process right to counsel. The court’s order denying father’s CRCP 60(b)(3) motion was reversed, the judgment terminating his parent–child legal relationship was vacated, and the case was remanded.

Summary and full case available here.

Colorado Court of Appeals: No Error in Delay Between Request and Delivery of Records

The Colorado Court of Appeals issued its opinion in Madrigal v. City of Aurora on Thursday, May 22, 2014.

Colorado Criminal Justice Records Act.

In July 2011, an Aurora Police Department (APD) officer shot and killed plaintiffs’ husband and father, Juan Contreras, in a parking lot. Pursuant to the Colorado Criminal Justice Records Act (CCJRA), plaintiffs requested from the City of Aurora (City) various records pertaining to this incident. The City initially denied inspection of the records and failed to respond to plaintiffs’ subsequent request for a written statement of the grounds for the denial. On plaintiffs’ application, the district court issued an order directing the City to show cause why it should not permit inspection. The City ultimately disclosed almost all of the records requested. The court determined that the City did not abuse its discretion either in delaying release of the records disclosed or in denying release of the records not disclosed until after the conclusion of the criminal investigation.

On appeal, plaintiffs contended that the district court erred in determining that the City did not abuse its discretion in handling their records request. The City (or, more precisely, the official custodian of the records) did not abuse its discretion in delaying the release of the records for ten months, pending the completion of the criminal investigation into Contreras’s death. Furthermore, the plain language of the statute did not authorize the district court to order the custodian to pay court costs, attorney fees, or penalties. Therefore, the court did not err in denying plaintiffs request for sanctions.

Summary and full case available here.