April 28, 2017

Archives for January 15, 2016

Molly Kocialski Named Director of Rocky Mountain Region U.S. Patent and Trademark Office

KocialskiOn Thursday, January 14, 2016, the United States Patent and Trademark Office named Molly Kocialski director of its Rocky Mountain Regional Office in Denver, effective immediately. Kocialski has contributed extensively to the intellectual property community in Colorado, and has been a speaker at CLE’s Rocky Mountain Intellectual Property & Technology Institute each year since 2007. Kocialski is a past chair of the CBA’s Intellectual Property Section. Prior to becoming Director of the USPTO, Kocialski was Senior Patent Counsel for Oracle, Inc., where she was responsible for managing an active patent prosecution docket and for patent investigations for Oracle and its subsidiaries, as well as providing IP support for mergers and acquisitions. She received her law degree from State University of New York at Buffalo School of Law and her undergraduate degree from the University of New Mexico.

Amanda Hunter Appointed to Custer County Court

On Thursday, January 14, 2016, Governor Hickenlooper’s office announced the governor’s appointment of Amanda Hunter to the Custer County Court, effective immediately. Hunter will fill a vacancy created by the appointment of Hon. Peter Michaelson to the Eighteenth Judicial District Court.

Hunter currently works at the Colorado State Public Defender’s Office in Salida, where she has been since 2011. Prior to that, she was a law clerk at the Office of the Colorado State Public Defender for four months and a law clerk at the Iowa State Public Defender’s office for four months. She also worked at the Credit Advisors Foundation for seven years. She received her undergraduate degree from the University of Iowa in 2002 and her law degree from the University of Nebraska College of Law in 2011.

For more information about the appointment, click here.

Tenth Circuit: Garcetti and Lane Require Showing of Whether Speech Within Employee’s Official Duties

The Tenth Circuit Court of Appeals issued its opinion in Holub v. Gdowski on Thursday, September 24, 2015.

Gina Holub was employed as an internal auditor for the Adams 12 school district beginning in 2007, and she reported to the district’s Chief Financial Officer. In late 2011, the district hired Shelley Becker as the new CFO, who implemented measures to ensure the accuracy of the district’s budget. At Becker’s request, district employee Tracy Cantrell analyzed the district’s salary expenses. Cantrell determined that the budget included $12 million more in salary funding than required to pay all the full-time employees. Cantrell reported her findings to Becker, and when Becker failed to address the issue, she reported them to Holub. Holub agreed with Cantrell that the salary budget was inflated, but found that it included $17 million more than necessary, thereby affecting the budget’s required 10% reserves. Holub conveyed her concerns to district superintendent Chris Gdowski, who advised her to speak to Becker about the concerns. Holub expressed to Gdowski that speaking to Becker would create a conflict of interest, and Gdowski advised her to research to whom she should be reporting. Holub ultimately concluded she was required to share her concerns with senior management, including Becker, and the school board.

District employees held four separate meetings in July and August 2012 to address Holub’s concerns. Becker explained Holub had erred in her analysis by incorrectly assuming the salary budget only included base salaries of full-time employees. Rather, Becker informed Holub that the salary budget also included many other items, including overtime pay and coaching stipends. This information satisfied Gdowski that Holub’s concerns were unfounded. However, Holub was not satisfied, and a few days later she approached the board president, Mark Clark, and shared her concerns with him. Two days later, Gdowski introduced Holub to the board and indicated that, as internal auditor, she could be a resource for the board. Holub requested that Gdowski allow her to present her findings to the board, but Gdowski replied that he believed her concerns were unfounded and would not recommend that the board hear her concerns in a public meeting. Holub prepared and delivered to Gdowski a memorandum citing state law and accounting standards in which she asserted the district had acted illegally and unethically in concealing excess budget reserves. The district hired an independent expert, Vody Herrmann, to review the budget.

Before Herrmann completed her review, Holub again insisted to Gdowski that even if Herrmann disagreed with her, Holub had a responsibility to present her conclusions to the board. The district’s general counsel responded, advising Holub that the board was aware of her concerns, her responsibility was to raise concerns to management, and the board would determine whether further action was necessary after receiving the independent review. About three weeks later, Herrmann presented her findings to Holub, Gdowski, and Becker. Herrmann explicitly concluded Holub’s concerns were unfounded. Holub then met with two board members, Schaefer and Winsley, at Schaefer’s home office. Both board members then met with Gdowski to discuss Holub’s concerns and left the meeting satisfied that they were unfounded.

In early October 2012, Gdowski, Becker, and the district’s Chief Human Resources Officer met to discuss Holub’s unwillingness and apparent inability to move past her budget concerns. They decided to terminate Holub’s employment, and Becker and the CHRO met with Holub on October 19, 2012, to inform her of their decision, telling her that her inability to move past her discredited budget concerns meant she could no longer be an unbiased and productive employee. In February 2013, a local news station aired a story featuring an interview with Holub in which she accused the district of inflating its salary budget. Before the story aired, Gdowski posted a statement on the district’s website in which he informed the district’s staff, parents, and community that Holub’s concerns were unfounded, and also questioning Holub’s credibility.

Holub eventually filed this action against the school district, Gdowski, and Becker, alleging a 42 U.S.C. § 1983 claim against all defendants for terminating her employment in retaliation for protected First Amendment speech, a breach of contract claim against the district, intentional interference with contract claims against Gdowski and Becker, and a defamation claim against Gdowski. The district court granted summary judgment to defendants on all Holub’s claims, and she appealed.

The Tenth Circuit, applying de novo review, first analyzed Holub’s First Amendment claim using the Garcetti/Pickering test. The Tenth Circuit found Holub’s claims failed at the first prong of the test because she spoke pursuant to her official duties. Holub argued that the Supreme Court’s recent opinion in Lane v. Franks, 134 S. Ct. 2369 (2014) changed the Garcetti test, and that the district court should have focused on whether the speech was “ordinary” in the sense that it was customary or regular. The Tenth Circuit corrected Holub that Lane directed it to focus on whether the speech was within the employee’s usual duties, not whether the speech was frequent or customary. Even if it had accepted Holub’s argument, though, the Tenth Circuit found she still failed the first prong of the Garcetti test because she was acting in her official capacity when she spoke to the board members.

Next, the Tenth Circuit evaluated whether the district court correctly granted summary judgment on Holub’s state law breach of contract claims. Holub argued that the district’s stated reason for her termination, that she was unable to perform her official duties because she could not move past her unfounded budget concerns, was a ruse created by Gdowski and Becker to silence her complaints about the budget. Holub first argued the district lacked cause to terminate her contract. The district contended its reasons for terminating Holub were uncontroverted and provided more than sufficient cause for her termination. Holub failed to point to whether the district had cause to terminate her, instead arguing again that her budget calculations were correct. The district court noted that Holub supplied no indication that the district feigned engagement with her budget concerns just to fabricate an excuse to terminate her, and that indeed the district took several measures to address her concerns before considering termination. The Tenth Circuit found Holub failed to show any indicia of her alleged conspiracy theory.

Finally, the Tenth Circuit addressed the district court’s grant of summary judgment to Gdowski and Becker on Holub’s intentional interference with contract and wrongful discharge claims and to Gdowski on Holub’s defamation claim. The district court granted immunity to defendants, basing its decision on its conclusion that there was no evidence either Gdowski or Becker had acted willfully and wantonly in terminating Holub. The Tenth Circuit concluded that, even in the light most favorable to Holub, there was no evidence showing that Gdowski’s or Becker’s actions were unreasonable or reckless.

The Tenth Circuit affirmed the district court’s grant of summary judgment to defendants on all counts.

Tenth Circuit: Unpublished Opinions, 1/14/2016

On Thursday, January 14, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Muse

United States v. Harris

Griffin v. Scnurr

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

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.