June 24, 2017

Archives for January 21, 2016

The Legal Times They Are A-Changin’ (Part Two)

Rhodes_1

This is the second part of two-part miniseries. (Here’s Part One.) The following is taken from the Preface to a just-published collection of these Legal Connection blog posts from the past year.

The Culture of Law

Having followed new practice models and technologies all the way to a new role for the law in human culture, I stumbled across one more stunning realization: In order for the legal entrepreneurial practice models and technologies to sustain themselves within a context still recognizable as what we consider to be the legal profession today, a new law culture would need to arise with them. Without a new law culture, the new law would be patched onto the old version of the legal profession and the garment would tear, leaving what was left of the profession to degenerate into non-visionary squabbling over issues like non-lawyer ownership of legal services and multi-jurisdictional legal entities. The big picture would be lost in a myopic preoccupation with making new developments fit existing paradigms. Meanwhile the larger legal paradigm would keep shifting, resulting in a haphazard and messy arrival.

That realization led to a follow up series on The Culture of Law, which occupied the second half of 2015. Following Prof. Austin’s lead and my personal interest in neuroscience, I examined how culture is formed from the inside out — beginning literally with how lawyers’ brains are re-wired in law school and entry into legal practice. Among other things, I learned that culture is formed and changed in individual brains, and is transmitted from one brain to another until the Tipping Point is reached and the collective brains of the culture find themselves wondering how it is that the old culture seems so entirely gone and the new one so entirely present. When that day comes, the New Normal will be the only normal some people in the law culture have ever known. Pause for a moment and try to get your head around what that would be like, if that were true of you.

Why This Collection?

Rhodes_5You noticed, of course, that this book’s cover and title mimic Bob Dylan’s seminal 60’s album and its anthem “The Times They Are A-Changin’.” Referencing Dylan and the 60’s is not a me-too grab for social revolutionary status, it’s a recognition of the social revolution that is already upon us. Something much, much bigger than new practice technologies and non-lawyer ownership of legal service providers is shaking underfoot. The practice models and cultural dynamics that make up the legal profession’s status quo today simply will not be with us in 50 years. Some won’t be here in 20, maybe not in 5 or 10. Some are gone already. As they disappear — one by one, and in batches — a new world of law will emerge to replace them. And when it does, the law’s role in human society — and thus human society itself — will have changed with it. All of that will happen though a process that is evolutionary, inevitable, and already well underway — begun, literally, in the re-wiring of law student and lawyer brains.

And yet…

In the midst of all of this seismic change, there is yet one essential element waiting to fully play its hand: us — that is, those of us who inhabit the legal profession, who consider it an essential milieu of our work and our lives, and who care enough to lend a hand in creating its new future and culture, which wait for our participation to bring them fully into existence. The question is not whether the new future and culture of law will arrive, it is whether we’ll lend a hand in bringing it about.

“The best way to predict the future is to create it.”

Suddenly Dylan’s lyric has new relevance:

Your old road is rapidly fading
Please get out of the new one if you can’t lend your hand.

The lyric is both a challenge and an invitation, which brings us back to that question about the legal profession’s curious indifference to its own welfare. As it turns out, our neurological wiring has such an innate allegiance to status quo — even to our own detriment — that most of us simply won’t get the invitation, or won’t open it if we do. But for those who do, and who choose to engage with the massive professional and societal developments already underway, change will become not merely evolutionary, but revolutionary. For them, the times will become a once-in-forever passion and opportunity.

Revolutions spawned in changing times require extraordinary visionary courage, expressed ultimately not merely in ideas but in action. Which is why both the Future of Law and Culture of Law blog series ended the same way, with the same insight: “The best way to predict the future is to create it.” And why both offer us the same choice:

Will we rise to the challenge and create the future of law
and a new culture of law to support it?

Or will we simply hunker down and go along for the ride,
letting the unpredictable forces of cultural evolution handle it for us,
at the risk of ending up somewhere we never intended to go?

I would be delighted if this collection helps us to frame our response.

(The quote, “The best way to predict the future is to create it” has been ascribed to a lot of different people, including Peter Drucker and Alan Kay. But according to the Quote Investigator, it appeared first in 1963 in the book Inventing the Future by Dennis Gabor, who was later awarded a Nobel Prize in Physics for his work in holography.)

Rhodes_4This second collection of Kevin’s blog posts focuses on the future and culture of law, including insights on technology, innovation, neuro-culture, and entrepreneurship. Extensively researched, visionary, and written in a crisp, conversational style by a man on a mission to bring wellbeing to the people who learn, teach, and practice the law.

 

 

 

Colorado Court of Appeals: Student Loan Debt Improperly Characterized as Income for Maintenance Determination

The Colorado Court of Appeals issued its opinion in In re Marriage of Morton on Thursday, January 14, 2016.

In this dissolution action, husband and wife were married for approximately six years. During the marriage and after the parties separated but before permanent orders entered, wife attended school to become a radiological technologist and later took a sonogram course. She took out student loans for her schooling. In dividing marital property, the trial court concluded that wife’s student loan debt was her separate debt because it was incurred after the parties’ separation and it was not “fair or equitable” to treat the debt as marital. Wife contended this was an abuse of discretion, and the court of appeals agreed, finding any debt incurred during a pre-decree separation was marital. The court remanded for the district court to first treat the student loan debt as marital and then decide equitable distribution as part of the overall property distribution.

Wife also contended the trial court erred by considering her student loans a financial resource in determining the maintenance award, and the court of appeals again agreed. By considering the loan proceeds as income, the trial court ignored the need for the loans to be repayed with interest. The court determined that by allowing loan proceeds to be counted as income, the trial court thwarted the purpose of the maintenance statute. The court of appeals remanded for reconsideration of the maintenance award without considering the student loans as a financial resource or income of any kind.

Wife further contended the trial court erred in determining the maintenance award before fully dividing the parties’ marital and separate property, and the court of appeals again agreed, noting that the maintenance award depends on its findings and order dividing property. Without first dividing the property, the court cannot reasonably determine the requesting party’s maintenance needs.

Because the court remanded on the issues of maintenance and the division of marital property, it set aside the trial court’s attorney fee award. On remand, after dividing property and determining a maintenance award, the trial court could reconsider an award of attorney fees. The court of appeals instructed the trial court to base its decision on the parties’ financial circumstances at the time of remand.

Colorado Court of Appeals: Property Need Not be Used Exclusively for Religious Purposes for Tax Exemption

The Colorado Court of Appeals issued its opinion in Grand County Board of Commissioners v. Colorado Property Tax Administrator on Thursday, January 14, 2016.

This appeal after remand concerned a religious exemption from property taxes. The YMCA owns properties in Grand County and Larimer County for which it applied for property tax exemptions based on religious purposes and charitable use. The state property tax administrator determined the properties were being used for religious purposes and granted an exemption. The Grand and Larimer County Boards of County Commissioners appealed, contending the YMCA’s use was not sufficiently religious to justify an exemption. The Board of Assessment Appeals held a hearing and found the properties were not used exclusively for religious purposes, reversing the property tax administrator’s determination. The YMCA appealed to the court of appeals and a division reversed the Board’s findings, concluding the Board failed to apply the proper legal standard and setting forth the statutory and constitutional framework for religious exemptions.

On remand, the Board found the YMCA properties qualified for the exemption because the properties furthered the YMCA’s stated religious mission and purposes and the properties were not being used for private gain or corporate profit. The counties appealed, arguing that because the use of the properties was not inherently religious, they should not qualify for the exemption. The court of appeals disagreed, finding the Board applied the correct legal framework on remand.

The court of appeals affirmed the Board’s decision to grant the YMCA properties tax exemptions.

Colorado Court of Appeals: Objection to Special Master’s Attorney Fees Waived When Not Timely Asserted

The Colorado Court of Appeals issued its opinion in Laleh v. Johnson on Thursday, January 14, 2016.

Mr. Johnson was appointed special master during the Lalehs’ complex forcible entry & detainer action. Ali and Kahlil Laleh, brothers, each signed engagement agreements with Mr. Johnson, outlining the scope of work and payment obligations. Mr. Johnson incurred attorney fees because the Lalehs’ former attorney refused to honor a subpoena, and billed the brothers for those fees as costs. Although the brothers settled their cases in February 2014, Mr. Johnson continued invoicing the brothers for costs, including his attorney fees, through May 2014. Kahlil Laleh sent a letter to Mr. Johnson in March 2014 expressing concern about his inclusion of attorney fees in his billings.

Although the trial court dismissed the case in February 2014 pursuant to stipulations by the parties, Mr. Johnson expressed concern to the court about his significant unpaid bills and the court issued an order to show cause as to why Mr. Johnson’s bills had not been paid. The court eventually accepted Mr. Johnson’s proposed order regarding the unpaid fees. The brothers appealed, arguing their due process rights were violated by the court’s entry of judgment against them.

The Colorado Court of Appeals found that the trial court’s order was procedurally deficient because it had issued only three days after Mr. Johnson proposed his order, defeating Rule 121’s requirement of a 7-day objection period. The court of appeals vacated the court’s judgment and remanded.

The brothers argued the trial court erred in ordering they pay Mr. Johnson’s attorney fees without express court approval, and in awarding Mr. Johnson’s fees incurred after the litigation settled. The majority disagreed with both contentions. The brothers challenged whether Mr. Johnson had authority to hire counsel, but because they did not object as soon as they learned of counsel’s role, the majority concluded they forfeited any objection, although the preferred option would have been for Mr. Johnson to request permission from the court before hiring counsel. Likewise, the brothers did not object to the first invoice containing a line item for Mr. Johnson’s attorney fees, and the court took this as further indication that they waived any contention. Even though Kahlil Laleh wrote to Mr. Johnson in March 2014 expressing concern about the attorney fees, this was not enough to constitute a sufficient objection.

The brothers also challenged the trial court’s award of post-settlement attorney fees, most of which post-dated Kahlil’s objection to the fees. The court of appeals determined the fees were proper pursuant to the court’s inherent authority. The majority affirmed the trial court’s order for the Lalehs to pay Mr. Johnson’s outstanding fees and costs. The dissent, written by Judge Webb, outlined how he would have disallowed any fees incurred after the parties settled.

Colorado Court of Appeals: Attorney Fee Request Under 42 U.S.C. § 1988 Not Moot

The Colorado Court of Appeals issued its opinion in Libertarian Party of Colorado v. Colorado Secretary of State on Thursday, January 14, 2016.

Two recall election candidates, Gordon Roy Butt and Richard Anglund, requested the Secretary of State’s approval to circulate petitions as successor candidates in a General Assembly recall election. The Secretary denied their petitions as untimely because they were submitted after a deadline in C.R.S. § 1-12-117. The candidates and the Libertarian Party (collectively, “Libertarian Party”) appealed, arguing the Secretary violated their constitutional right to access to the ballot because the statutory deadline conflicted with a later deadline in the Colorado Constitution.

The Libertarian Party asked the court to order the Secretary to accept candidate petitions until the constitutional deadline, requested injunctive and declaratory relief under § 1983, and requested attorney fees under § 1988. In an expedited proceeding, the district court held that the statute conflicted with the constitution and therefore was void and ordered the Secretary to enforce only the constitutional deadline, but did not address the §§ 1983 and 1988 claims. The Colorado Supreme Court denied certiorari.

The Libertarian Party then moved for summary judgment on its §§ 1983 and 1988 claims, but the district court ruled that the federal claims were effectively dismissed when the Libertarian Party failed to file a Rule 59 motion for amended judgment. On appeal, the court of appeals found the § 1983 claim was moot, because the Libertarian Party’s claim for injunctive relief was satisfied by the district court’s original order and the claim for declaratory relief became moot when the General Assembly amended the statute. However, the court of appeals found that the § 1988 claim may have survived. Because the Libertarian Party prevailed on its state law claim, it still may be entitled to attorney fees under § 1988 because its federal claims were joined with its state law claims.

The court of appeals remanded for determination of the Libertarian Party’s § 1988 claim.

Colorado Court of Appeals: Unique Circumstances Doctrine Disfavored; Appeal Dismissed as Untimely

The Colorado Court of Appeals issued its opinion in Heotis v. Colorado Department of Education on Thursday, January 14, 2016.

In this appeal after remand, Heotis was a teacher who had criminal charges filed against her and entered into a plea agreement with a deferred judgment. In 2011, after fulfilling the conditions of her plea agreement, the court allowed Heotis to withdraw her guilty plea and dismissed the criminal case. Heotis sought to renew her teaching license in 2012 and discovered the Department had revoked her license based on her involvement in the criminal case. Heotis sought reinstatement of her teaching license.

In mid-January 2013, Heotis filed a motion in district court to seal the records in her criminal case, which was referred to a magistrate. The magistrate recommended against sealing the records, and the district court adopted the magistrate’s recommendations. Heotis appealed, and a panel of the court of appeals remanded with instructions for the magistrate to consider four factors in its review, adding that Heotis could appeal the magistrate’s decision to the district court and then the court of appeals.

On remand, the magistrate again recommended against sealing the records, and Heotis appealed to the district court within 14 days. The district court ruled on her motion 33 days later, and Heotis filed her appeal with the court of appeals 49 days after that. The court of appeals dismissed Heotis’ appeal as untimely, ruling that because her case was governed by C.R.M. 7(b), she should have immediately appealed to the court of appeals and had a 49-day deadline in which to do so. Even providing for excusable neglect, Heotis must have filed her appeal within 84 days, which she did not. The court refused to apply the unique circumstances doctrine based on the first panel’s incorrect statement about Heotis’ appeal rights, noting that the doctrine was disfavored by the U.S. Supreme Court.

Heotis’ appeal was dismissed.

Tenth Circuit: Unpublished Opinions, 1/20/2016

On Wednesday, January 20, 2016, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

L’Ggrke v. Asset Plus Corp.

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