April 25, 2017

Archives for March 2016

Professional Paradigms New and Old (Part 2): You Had Me At The Creds

rhodesI met a friend for a beer last Thursday, and told him about my blog post that day about the future (actually the end) of the professions.

“I’ve got a story for you about that,” he said. “I thought now that I’m retired, I should get my affairs in order.”

I practiced estate planning, so my ears perked up. He told me about all the useful information, forms, and software he’d found online, also about the estate planning seminars he’d attended and the presenting lawyers’ “don’t try this at home” pitches. And his incredulous response to their fee quotes “for things I could do myself.”

He’s newly retired from an illustrious teaching career — an Ivy League grad, six published books, awards and accolades everywhere. He has a huge and healthy respect for the professions and professionalism. And he had more to say.

“In education, it’s gotten to the point where it’s, why even bother to go to school? It’s all available online. You can learn what you want, your own way.”

Then he paused. “But I still wouldn’t go to a surgeon who didn’t have the credentials.”

Ah, the credentials. Is that why people still go to law school, med school, get a CPA, a teaching certificate?

Yes, in part, but the world of professional credentials is changing. I talked about this in a post last March called Strange Bedfellows: Commercial Law and Legal Ethics. Here’s an excerpt:

Peer-to-peer is what’s driving the new sharing economy. Consider this from a recent article in Time Magazine:

The key to [the sharing economy] was the discovery that while we totally distrust strangers, we totally trust people — significantly more than we trust corporations or governments. Many sharing-company founders have one thing in common: they worked at eBay and, in bits and pieces, recreated that company’s trust and safety division. Rather than rely on insurance and background checks, its innovation was getting both the provider and the user to rate each other, usually with one to five stars. That eliminates the few bad actors who made everyone too nervous to deal with strangers.

In that post, I made these two predictions (among others):

  • The peer-to-peer dynamic will prevail in significant economic sectors — including the professional service sector of which the legal profession is a part.
  • The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

As for the latter, I said this:

Peer-to-peer is the ultimate in self-policing, which makes its extension to legal ethics unlikely but logical. Rule 8.3 — the duty to report unethical behavior among our peers — has long been a part of the Model Rules of Professional Conduct, but has been more honored in the breach than the observance. The new, democratized marketplace will take this matter into its own hands.

In other words, the professional paradigm will shift — in fact, is already shifting — to include peer-to-peer review as an alternative form of professional credentialing.

True, the typical consumer still wants law school and bar admittance credentials for the legal equivalent of surgery, but for the rest, we’re seeing a major shift in consumer attitudes toward my friend’s — to the point where the consumer is more likely to buy from someone (lawyer or not, which is its own topic) who gets 20 five-star ratings for estate planning offered at a reasonable price (which my buddy gave as 10 percent of what the seminar lawyers were charging). They’ve got the creds the consumer wants… just a different kind.

Like it or not, it’s happening out there in the New Economy marketplace, and we’ll see more of it in our house. We’re not all the way to lawyers posting client ratings on a five-star scale yet, but one day… I’ll bet it happens. I also bet that day will come way sooner than most lawyers would care to predict.

 

For Bill Gates’ take on the value of a college education credentials, check out his post yesterday on LinkedIn Pulse.

And for a toe dip into the New Economy, take a look here and here.

Rhodes_4Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.

Colorado Court of Appeals: Trial Court Not Required to Order Accounting at Request of Interested Person

The Colorado Court of Appeals issued its opinion in Sidman v. Sidman on Thursday, March 24, 2016.

Legal Guardian—Motion for Accounting—Discretion.

In 2002 Michael and Renee Sidman were appointed as legal guardians for their nephew, who was born in 1999. The parents paid child support and filed a motion for an accounting. The trial court denied the motion, and the parents appealed.

The guardians filed a motion to dismiss the appeal, arguing that (1) the order denying the motion for an accounting was not a final, appealable order because a motion to modify child support was pending and the order did not resolve all pending matters, and (2) the court should have followed the law of the case and not reached the merits of the motion, based on its two previous orders denying similar requests for accountings. Even if the order was not final at the time the appeal was filed, the jurisdictional defect was cured when the motion to modify child support was resolved in November 2014. Furthermore, the trial court was not compelled by the law of the case to refrain from considering the parents’ motion; the decision was a matter in the court’s discretion.

The parents contended on appeal that the trial court abused its discretion in denying their motion for accounting. The Court of Appeals determined that CRS § 15-14-207(2)(e) did not require the court to order the guardians to provide an accounting. Instead, the parents’ motion triggered the court’s duty to exercise its discretion as to whether to order an accounting and the extent of any such accounting. The court properly exercised its discretion.

The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Constitutional Claim Requires Inquiry into Reasonableness of Statutory Ammunition Limits

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, March 24, 2016.

HB 12-1224—HB 13-1229—Firearms—Colorado Constitution—Right to Bear Arms—Police Power—Legislative Powers—Executive Powers—Due Process Clause.

In 2013, the Colorado General Assembly passed House Bills 13-1224 and 13-1229, which banned the sale, possession, and transfer of “large capacity ammunition magazines,” and expanded mandatory background checks to recipients of firearms in some private transfers. Plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S, LLC (collectively, plaintiffs) filed a complaint challenging the constitutionality of both bills. The district court analyzed the bills under a “reasonable exercise of police powers” test rather than an intermediate or strict scrutiny test and dismissed the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, plaintiffs contended that the district court erred in dismissing their claim that HB 13-1224 violated the Colorado Constitution’s right to bear arms clause. Because this case presented a challenge based on the Colorado Constitution, the district court did not err in using the “reasonable exercise of police power” test to assess the validity of HB 13-1224. However, the district court erred in its application of that test to this case. At a minimum, the claim asserts that the magazine limits violate the constitutional right to bear arms, which requires a factual inquiry into the reasonableness of the limits. When viewed in the light most favorable to plaintiffs, the allegations state a claim for relief, and plaintiffs are entitled to present evidence of the basis for their claim.

Plaintiffs contended that HB 13-1229 is unconstitutional because it (1) infringes on individuals’ rights to keep and bear arms; (2) delegates legislative and executive licensure powers to nongovernmental agents; and (3) violates the Due Process Clause, because licensed gun dealers will refuse to facilitate background checks, and they have discretion to impose criminal liability and punishments.

As to the first argument, HB 13-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties as those required for retail sales and sales at gun shows. Thus it does not prevent the sale of firearms but merely creates an additional step for those sales not taking place through a licensed gun dealer. Furthermore, HB 13-1229 does not implicate a fundamental right and does not infringe on individuals’ rights to keep and bear arms for a lawful purpose; both Colorado and federal law bar certain individuals from possessing firearms.

Second, HB 13-1229 does not unconstitutionally delegate legislative or executive powers. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; they are required to follow the same procedures in place for retail firearm transactions. The fact that they are not legally obligated to facilitate sales between private parties is not a delegation of legislative authority. Similarly, HB 13-1229 does not unconstitutionally delegate executive powers. Again, the process for these transfers is no different than that for retail firearm transactions and gun show sales. Licensed gun dealers are not agents of state law enforcement charged with keeping firearms away from criminals; they are only required to initiate a background check.

Third, plaintiffs presented no facts that licensed firearm dealers will refuse to facilitate background checks, thus depriving parties of a right to firearms sales. Additionally, licensed firearms dealers merely collect information; they do not have the discretion to impose criminal liability and punishments. Thus HB 13-1229 does not violate the Due Process Clause.

Therefore, the district court correctly concluded that plaintiffs failed to state a claim for relief on HB 13-1229.

As to HB 13-1224, the case was reversed and remanded. Other aspects of the court’s decision were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Failure to File Timely Response to Summary Judgment Motion Precludes Reversal

The Colorado Court of Appeals issued its opinion in People v. Wunder on Thursday, March 24, 2016.

Colorado Consumer Protection Act—Injunctive Relief—Civil Penalties—Restitution—Subject Matter Jurisdiction—Victim’sResidences—Summary Judgment—Vague—Overly Broad—C.R.C.P. 65—Evidentiary Hearing.

Wunder operated Sea to Ski, LLC, a Colorado-based vacation and travel club. The Attorney General (AG) sued Wunder and related parties under the Colorado Consumer Protection Act (CCPA). The trial court granted the AG’s motion for summary judgment on whether Wunder had violated the CCPA. On motion of the AG and without holding a hearing, the court thereafter ordered injunctive relief, civil penalties, and restitution.

On appeal, Wunder contended that the money judgments and injunction were void because the district court lacked subject matter jurisdiction over CCPA violations committed against those Sea to Ski members who were nonresidents of Colorado. The CCPA itself does not limit the court’s jurisdiction based on the residency of the victims of deceptive trade practices, thus the court had subject matter jurisdiction.

Wunder also asserted that the district court erred when it granted summary judgment against him. The record established that the AG and district court complied with C.R.C.P. 56 and the AG was entitled to judgment as a matter of law, and Wunder did not timely respond to the AG’s motion. Therefore, the district court did not err in granting the motion.

Wunder further argued that because the initial injunction was defective, the court was prohibited from correcting the error and entering a later injunction conforming to C.R.C.P. 65. This was not a jurisdictional defect, and the corrected injunction complies with C.R.C.P. 65. Wunder also attacked the substance of the district court’s revised injunction, claiming that it is vague and overly broad. Paragraph 5 of the injunction does not define the term “vacation or travel related services or products,” thus it is vague and overly broad. The case was remanded for the trial court to reformulate that portion of the injunction.

Lastly, Wunder argued that the district court improperly calculated the civil penalty and restitution amounts. Because an evidentiary hearing was required before imposing civil penalties and restitution and the trial court failed to hold a hearing, the judgments were reversed and the case remanded for a hearing.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/30/2016

On Wednesday, March 30, 2016, the Tenth Circuit Court of Appeals issued no published opinions and eight unpublished opinions.

Miller v. Johnson

United States v. Gandara-Delgado

Dune Citizens Against Ruining the Environment v. United States Office of Surface Mining Reclamation & Enforcement

United States v. Mewhinny

United States v. Mendoza

Sweesy v. Sun Life Assurance Co. of Canada

Sullivan v. Rios

Galindo v. Gentry

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

Nominees Selected for Vacancies on Second Judicial District Court

On Tuesday, March 29, 2016, the Second Judicial District Nominating Commission announced its selection of six nominees to fill two upcoming vacancies on the Second Judicial District Court. The nominees are Christopher J. Baumann, Jay S. Grant, Frances E. Simonet, Jay B. Simonson, Jennifer B. Torrington, and Christine A. Washburn.

Christopher J. Baumann is the head of the Denver office of the Colorado State Public Defender. Jay S. Grant is lead attorney at the same office. Frances Simonet is a magistrate in the Seventeenth Judicial District. Jay B. Simonson is a First Assistant Attorney General. Jennifer B. Torrington is a magistrate in the Second Judicial District. Christine A. Washburn is the Chief Deputy District Attorney for the Denver District Attorney’s Office.

Under the Colorado Constitution, the governor has 15 days from March 29 in which to appoint two of the nominees to the vacancies. Comments regarding any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Colorado Court of Appeals: Prosecutor “Channeling” Victim in Opening Statement was Error but Not Plain

The Colorado Court of Appeals issued its opinion in People v. Manyik on Thursday, March 24, 2016.

Prosecutorial Misconduct—Amended Information—Crim.P. 7(e)—Jury Instruction—Mistaken Belief—Hearsay.

Adams was romantically involved with Manyik and lived in his house. Adams remained in contact and continued to socialize with the victim, with whom she previously had been in a relationship. Adams invited the victim to Manyik’s house and told victim that Manyik was out of town on a hunting trip. When the victim arrived, Manyik shot and killed him.

Manyik was convicted of second-degree murder, aggravated robbery, and tampering with physical evidence.

Manyik raised five arguments on appeal. First, he argued that the prosecutor’s “channeling” (a technique by which a lawyer speaks to the jury in the first person as though he is the injured or deceased person) constituted prosecutorial misconduct and required reversal of his convictions. Although the prosecutor’s opening statement was impermissible, under the limited circumstances of this case it was not plain error and did not require reversal of Manyik’s convictions.

Second, Manyik argued that the trial court erred in allowing the prosecution to amend the aggravated robbery charge during trial. Because the amended information charged a different offense and subjected Manyik to mandatory sentencing for a crime of violence, while the original charge did not, Crim.P. 7(e) precluded the amendment. Manyik’s conviction for aggravated robbery was reversed and the case was remanded for a new trial on that charge.

Third, Manyik argued that the court erred in rejecting his tendered jury instruction about evaluating statements he made to police officers. The tendered instruction emphasized only selective evidence that was favorable to Manyik and thus was improper. The trial court did not err in rejecting Manyik’s proposed jury instruction on this issue.

Fourth, Manyik contended that the court’s jury instruction on the defense of mistaken belief of fact was incorrect. The language of the instruction given was almost identical to that in the relevant statute, CRS § 18-1- 504(1)(c). Additionally, defense counsel’s argument about Manyik’s mistaken belief made the jury aware of his mistake of fact defense. Therefore, the given instruction was proper.

Lastly, Manyik argued that the court erred in excluding evidence of recorded statements he made during telephone conversations with family members when he was at the police station. Because the statements contained impermissible hearsay, the court did not err in excluding them.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 60(b)(1) Motion Incorrectly Deemed Denied by Operation of C.R.C.P. 59(j)

The Colorado Court of Appeals issued its opinion in Harriman v. Cabela’s Inc. on Thursday, March 24, 2016.

Motion to Dismiss—C.R.C.P. 12(b)(5)—Motion to Set Aside—C.R.C.P. 60(b)(1)—C.R.C.P. 59(j).

Plaintiff sued Cabela’s Inc. after he was injured while testing a hunting bow at an archery range in one of its stores. The trial court granted Cabela’s C.R.C.P. 12(b)(5) motion. Plaintiff filed a C.R.C.P. 60(b)(1) motion asking the trial court to set aside its judgment. The court denied the motion because it concluded that the motion to set aside had been deemed denied by operation of C.R.C.P. 59(j).

On appeal, plaintiff contended the trial court erred in concluding that his C.R.C.P. 60(b)(1) motion to set aside had been deemed denied by operation of C.R.C.P. 59(j). The Court of Appeals agreed. C.R.C.P. 59(j) states that the court must decide a C.R.C.P. 59 motion within 63 days of when it was filed or the motion is deemed denied. The C.R.C.P. 59(j) time limit, however, does not affect motions that are properly filed under C.R.C.P. 60. Plaintiff’s timely filed motion to set aside alleged that the store had agreed to his filing a response to the store’s C.R.C.P. 12(b)(5) motion beyond the regular time limit. The motion added that “due to an oversight” plaintiff had not informed the trial court of this agreement. This allegation generally falls within the scope of C.R.C.P. 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect), and does not generally fall within the scope of C.R.C.P. 59(d) or (e). The trial court’s decision to deny the motion to set aside was based on a misunderstanding of the applicable law.

Cabela’s asserted that this appeal should be dismissed because of the Court of Appeals’ decision to dismiss a prior appeal in this matter. The Court disagreed, determining that the motion to set aside at issue in this appeal did not contravene the mandate issued by the Court in the prior appeal.

The order was reversed and the case was remanded to the trial court to hold an evidentiary hearing to consider plaintiff’s motion to set aside.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/29/2016

On Tuesday, March 29, 2016, the Tenth Circuit Court of Appeals issued three published opinions and seven unpublished opinions.

United States v. Tobanche

Ortega v. New Mexico Legal Aid, Inc.

McGrath v. Fogarty

United States v. Jimenez

Lane v. Colvin

United States v. Porter

Webb v. Smith

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

Two JDF Forms Amended in March

The Colorado State Judicial Branch has amended two JDF forms this month: JDF 604, “Notice and Order to File JDF 601 District Court Case Cover Sheet,” and Form 32, “Writ of Garnishment – Judgment Debtor Other Than Natural Person.” Additionally, one JDF form was amended in February: JDF 100, “Instructions for Forcible Entry and Detainer (FED)/Evictions.” The JDF forms are generally available as PDFs and Word documents on the State Judicial forms page. For all of State Judicial’s JDF forms, click here.

Tenth Circuit: Unpublished Opinions, 3/28/2016

On Monday, March 28, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Burks

Hodson v. Weld County Sheriff

Estate of Bleck v. City of Alamosa

People of the State of Colorado v. Carrillo

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

SB 16-026: Preventing Restriction of Communication Rights of Protected Persons

On January 13, 2016, Sen. Laura Woods introduced SB 16-026Concerning Personal Rights of Protected Persons, and, In Connection Therewith, Limiting the Ability of a Guardian or Conservator to Isolate a Protected Person. The bill was assigned to the Senate Judiciary Committee, where it was amended and referred to Appropriations.

The proposed bill provides that a guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons. Unless a restriction is authorized by a court order, this includes the right to receive visitors, telephone calls, or personal mail. A court may issue such order restricting communications, visitations, or interactions if good cause can be shown by a guardian or conservator.

Additionally, an interested person, including the protected person, who has a reasonable belief that the guardian or conservator has violated the court order may move the court to do any one of the following: (1) require the guardian or conservator to grant a person access to the protected person; (2) restrict, or further restrict, a person’s access to the protected person; (3) modify the guardian or conservator’s duties; or (4) remove the guardian or conservator.

The proposed bill also provides that a guardian or conservator who knowingly isolates a protected person in violation of the law or a court order is subject to removal.

The bill also proposes certain instances in which the guardian or conservator must notify the protected person’s closest known family members or person designated by the protected person. These instances are: (1) if the protected person changes his or her residence; (2) if the protected person resides at a location other than his or her residence for more than 7 days; (3) if the protected person is admitted to a medical facility for acute care or emergency care; or (4) if the protected person dies.

Mark Proust is a 2016 JD Candidate at the University of Denver Sturm College of Law.