April 26, 2017

Archives for April 21, 2016

World IP Day Celebration – Cultural Expression through Digital Creativity

World IP Day Celebration – Cultural Expression through Digital Creativity

Event to be held at the following time, date, and location:
Monday, April 25, 2016 from 3:00 PM to 5:00 PM (MDT)
The Commons on Champa
1245 Champa Street
Denver, CO 80204

Attend Event

Hosted by The Commons on Champa, come celebrate World Intellectual Property Day with the Rocky Mountain United States Patent and Trademark Office (USPTO), the Colorado Bar Association IP Section and the American Intellectual Property Law Association.
The program will focus on exploring the role of digital creativity in the evolution of cultural expression.  Guest speakers will include, among others, Melody McCoy from the Native American Rights Fund and Troy Eid from Greenberg Traurig.

  • 3:00 – 3:30 PM: Pre-event Networking Reception
  • 3:30 – 4:30 PM: World IP Day Program & Fireside Chat (moderated by USPTO Regional Director Molly Kocialski)
  • 4:30 – 5:00 PM: Post-event Networking Reception & World IP Day Celebration

Share this event on Facebook and Twitter and please feel free to pass this invitation along to other friends and colleagues who you think would be interested in joining for this special World Intellectual Property Day celebration.
We hope you can make it!

Cheers,
American Intellectual Property Law Association (AIPLA) Colorado Bar Association Intellectual Property Section

HB 16-1356: Modifying the Treatment of a Line of Credit Secured with Real Property

On March 11, 2016, Reps. Tracy Kraft-Thorp and Dan Nordberg, and Sens. Cheri Jahn and Chris Holbert introduced HB 16-1356Concerning Requirements Related to the Satisfaction of Indebtedness Secured by Real Property. The bill was introduced into the House Business Affairs and Labor Committee, where it passed unamended. It passed Second and Third Reading in the House unamended and was introduced into the Senate Finance Committee. It passed through the Senate Finance Committee unamended and is awaiting Second Reading in the Senate.

This bill establishes for indebtedness consisting of a line a credit secured by a lien on real property, any lien on real property securing that line of credit continues, and no lien release is required, until the line of credit expires and all indebtedness has been satisfied, unless, before expiration of the line of credit, all outstanding indebtedness is satisfied and the debtor relinquishes in writing all right to make any further draw upon the line of credit.

Further, the debtor relinquishes the right to make a further draw by either requesting in writing that the line of credit be closed by the creditor, or by written notification by the debtor, or his or her designee, that the real property is being conveyed upon payment of all indebtedness. Upon satisfaction of all indebtedness in connection with the conveyance of the real property and notice to the creditor or holder of the conveyance, the creditor or holder shall terminate the line of credit, record the release of the lien on real property, or in the case of a deed of trust, file with the public trustee the documents required for release, and return all papers and personal property.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-133: Changing Procedures for Affirming Shared Ownership of Real Property at Death of Decedent

On February 18, 2016, Sens. Jack Tate & Michael Johnston and Reps. Dan Pabon & Yeulin Willett introduced SB 16-133Concerning the Transfer of Property Rights upon the Death of a Person, and, in Connection Therewith, Clarifying Determination-Of-Heirship Proceedings in Probate. The bill was introduced into the Senate Judiciary Committee, where it was amended. It passed through the Senate with amendments on Second Reading and passed through the House without further amendments. It is now awaiting the governor’s signature.

Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. First, this bill removes the requirement that the person who swears to and affirms the supplementary affidavit has no record interest in the real property, while requiring that the supplementary affidavit include a statement that the person referred to in the certificate is the same person who is named in a specific recorded deed or similar instrument creating the joint tenancy.

Second, this bill amends provisions concerning determination-of-heirship proceedings, as follows:

  1. Amends the definition of “interested person” to mean an owner by descent or succession so that anyone affected by the ownership of property may commence a proceeding;
  2. Requires the petition to contain additional information with respect to the property at issue, each decedent, any previous administration of the decedent’s property, and any unknown interested person;
  3. Imposes additional requirements upon a petition if the decedent died testate, depending on whether the decedent’s will has or has not been previously admitted to probate, and if the will has not been probated, the petition must contain a statement that the original will is unavailable;
  4. Requires a petitioner’s notice to identify the petition, and include the name of the each decedent, the name of each interested party, a legal description of any real property, the time and place of the hearing on the petition, and that any objection to the petition must be filed in writing with the court on or before the hearing date and served upon the petitioner; notice shall also be published once a week for three consecutive weeks in a newspaper of general circulation in the county in which the proceeding was filing, and in the county in which the real property at issue is located;
  5. Requires upon the entry of a decree affecting title to real property, a certified copy of the decree must be recorded and indexed in the office of the county clerk and recorder of each county in which real property is located, as if it were a deed of conveyance from the decedent; and
  6. Establishes that the admission of a previously unprobated will applies only to the decedent’s particular property interest described in the petition.

Third, this bill enacts portions of section 5 of the “Uniform Power of Appointment Act,” with amendments.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-134: Allowing Qualified Military Veterans Access to Professional Licenses

On February 18, 2016, Sens. Rollie Heath & Leroy Garcia and Reps. Jessie Danielson & Daniel Kagan introduced SB 16-134Concerning Professional Licensing for Military Veterans in Certain Professions. The bill was assigned to the Senate Business, Labor, & Technology Committee, where it was amended. The bill passed through the Senate with amendments on Second Reading, and was introduced into the House Business Affairs & Labor Committee. The bill was unamended in the House committee and referred to the House Committee of the Whole for Second Reading.

First, this bill requires the Department of Revenue to consider the training, education, or experience obtained by an applicant as a member of the U.S. armed forces, reserves, or National Guard, and the Department of Revenue may credit the training, education, or experience toward the qualifications necessary to receive a license, certification, or registration.

Second, this bill requires the Division of Veteran Affairs within the Department of Military and Veterans Affairs to make reasonable efforts to notify discharged members of the armed services who are located in – or who intend to relocate to – Colorado of the requirements enacted by this bill and enforced by the Department of Revenue, as well as the requirements in C.R.S. § 24-34-102(8) and (8.5), enforced by the Division of Professions and Occupations of the Department of Regulatory Agencies.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Sanctions Award Inappropriate When Trigger was Date Expert Report Exchanged

The Tenth Circuit Court of Appeals issued its opinion in Baca v. Berry on Tuesday, December 1, 2015.

Several citizens brought suit in state court against Albuquerque Mayor Richard Berry in January 2013 over the city’s redistricting plan enacted after the 2010 caucus. The citizens alleged that the newly adopted redistricting map denied Latinos opportunities to participate in the political process and elect candidates of their choice. The mayor removed the case to federal court.

In March 2013, a city charter amendment changed the percentage of the vote needed for a candidate to win from 40% to 50%. On June 25, 2013, the mayor produced an expert report that tended to disprove the plaintiffs’ arguments about redistricting. Later, the plaintiffs filed a motion to dismiss without prejudice, which the mayor opposed, requesting dismissal with prejudice instead. The district court decided to wait to rule on the motions until after the November elections.

The court held a phone conference with the parties after the November elections and set a status conference in December 2013. However, the court cancelled the December conference due to scheduling conflicts and did not reschedule. In January 2014, the court dismissed the plaintiffs’ claims with prejudice. The mayor moved for sanctions under 28 U.S.C. § 1927, arguing the plaintiffs vexatiously multiplied the proceedings. The district court granted the mayor’s motion and entered an attorney fee award against plaintiffs beginning on June 25, 2013, the date the mayor’s expert submitted his report. Plaintiffs appealed.

The Tenth Circuit evaluated the district court’s sanction award for abuse of discretion. The voters argued that the court’s order staying the case identified no legal prejudice to the mayor and was based solely on its convenience, which constitutes an abuse of discretion. The Tenth Circuit disagreed. The Tenth Circuit first noted that there is a difference between a court staying proceedings and dismissing a case, and there was no abuse of discretion in the court’s stay order. The voters did not appeal the dismissal. The Tenth Circuit also noted that, contrary to the voters’ assertions, the court did not issue the stay merely out of convenience, but because it found the record incomplete and believed that the upcoming mayoral elections would provide direction whether to dismiss the case with or without prejudice.

The Tenth Circuit similarly rejected the voters’ Voting Rights Act and one-person-one-vote claims. The Tenth Circuit found that the plaintiffs’ expert failed to satisfy the second and third prongs of the Gingles test. Because the mayor’s expert exposed the flaws in plaintiffs’ arguments by showing that the preferred candidates actually won all elections in which the plaintiffs’ were arguing Voting Rights Act violations, the Tenth Circuit found no error in the district court’s decision. The Tenth Circuit also found no one-person-one-vote violation, finding the population variance well within acceptable limits.

The Tenth Circuit next evaluated the sanctions award and determined that although the district court had discretion to issue sanctions under § 1927, it was an abuse of discretion for the court to base the sanction award on the day plaintiffs received the report from the mayor’s expert. The Tenth Circuit found that it would be unreasonable to expect the plaintiffs to withdraw their complaint on the day that the report was exchanged, since they would likely need time to review it and determine whether it had merit. Because of this, the Tenth Circuit reversed the sanction award. The Tenth Circuit noted that, on remand, the district court was free to revisit fees on remand.

The Tenth Circuit reversed the district court. Judge Phillips wrote a thoughtful dissent; he would not have allowed a sanction award at all because of the potentially chilling effect on legitimate voter discrimination claims.

Tenth Circuit: Unpublished Opinions, 4/21/2016

On Thursday, April 21, 2016, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Banks v. Katzenmeyer

United States v. Bowman

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

Professional Paradigms New and Old (Part 5): Why Change if We Don’t Have To?

rhodesWhy change if we don’t have to?

Good question. I Googled it. The most hits were about the hazards of not changing your car’s oil, plus a few along the same lines about furnace filters or the water filter on the fridge. There was one about changing your underwear, and a few about lifestyle changes related to health issues. All of those are maintenance issues — mechanical, hygiene, health — which we would generally consider have to’s.

What about changing to keep up with the competitive pressures of the marketplace? There’s a lot of keeping up with the Joneses thinking out there, but in my observation, making yourself afraid of what the competition might do rarely results in anything other than drama. No have to in that.

Recently, at a CLE workshop in South Carolina, a participant asked, “Aren’t there some things we don’t need to change?” The question brought me up short, reminded me why we were investing a whole day talking about change: we were there to enhance professionalism, help us do our work better, keep us ethical, and maybe even help us to be happy practicing law — or find the courage to get out. That’s why we needed to talk about things like law school inflicted brain damage, lawyer substance abuse, depression, anxiety, and suicide, and the value of personal happiness in supporting ethical behavior. Some things are broken and need to be fixed, and some things we do to keep our edge — both are necessary maintenance, part of our professional have to’s.

But there was a second part to my answer. Beyond those maintenance issues, I agree: let’s not change if we don’t want to. I’m not sure it’s even possible. I do know that grudging change never seems to work.

I say that even though I think and write a lot about change — particularly the psychological and neurological dynamics of personal transformation. (You may have noticed.) If I were still in law practice, I would no doubt be incorporating the not-so-futuristic practice developments into my firm, and otherwise actively engaging with the huge paradigm shift happening in our profession.

But that’s not everybody’s choice, and I get that. They’re content to let those developments play out by the process of cultural evolution. If a day comes that threatens obsolescence beyond mere fear-mongering, it will become a shared maintenance issue, and we’ll take care of it together… but probably not before.

All that went into my answer to the question in South Carolina. Which made me ask myself once again what’s behind my own commitment to change. Bottom line is, I have a personal, real-time, vested interest in change because I’ve been on a steep personal transformation learning curve for nearly a decade — for all sorts of reasons I’ve written about in my books, my personal blog, and sometimes in this column. Thinking and writing about it is my way of being proactive about my own best interests.

More next time on why that’s relevant to this blog.

Rhodes_4

Check 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: Announcement Sheet, 4/21/2016

On Thursday, April 21, 2016, the Colorado Court of Appeals issued 11 published opinions and 35 unpublished opinions.

People v. Sandoval

People v. Ortiz

People v. Douglas

Calvert v. Mayberry

Landmark Towers Association, Inc. v. UMB Bank, N.A.

People v. Valadez

People v. August

Colorado Insurance Guarantee Ass’n v. Sunstate Equipment Co. LLC

Amerigas Propane & Indemnity Insurance Co. of North America v. Industrial Claim Appeals Office

Archuleta v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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

SB 16-132: Clarifying that DUI Test Results Are Not Public Information

On February 18, 2016, Sen. John Cooke and Rep. Mike Foote introduced SB 16-132Concerning Clarifying that Test Results Relating to Certain DUI Offenses are not Public Information. The bill was assigned to the Senate Judiciary Committee, where it passed with amendments and was referred to the Senate Committee of the Whole for Second Reading. The bill passed Second Reading with amendments and passed Third Reading. In the House, the bill was assigned to the Judiciary Committee.

This bill states that the database compiled by the Department of Public Heath and Environment containing personal information relating to the results of individuals’ breath alcohol content, and all other personal identifying information, are not public information. The Department shall disclose such information only to: (1) the individual who is the subject of the test, or his or her legal representative; (2) a named interested party in a civil or criminal action in which the test results are directly related, or his or her legal representative; (3) any prosecuting attorney, law enforcement officer, state agency, or state and local public official; or (4) the Department may release non-personal identifying information in accordance with C.R.S. § 24-72-101 through § 24-72-402.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1309: Establishing a Defendant’s Right to Counsel in Certain Municipal Cases

On March 2, 2016, Rep. Susan Lontine and Sen. Vicki Marble introduced HB 16-1309Concerning a Defendant’s Right to Counsel in Certain Cases Considered by Municipal Courts. The bill was introduced in the House Judiciary Committee, where it passed, unamended, and was referred to the House Committee of the Whole. The bill passed Second and Third Readings in the House unamended and was assigned to the Senate State, Veterans, & Military Affairs Committee. The bill was amended in the State, Veterans, & Military Affairs Committee and referred to the Senate Finance Committee.

This bill applies to prosecutions for violations of municipal charters and ordinances. At the time of first appearance on a municipal charge, if the defendant is in custody and the charged offense includes a possible sentence of incarceration, the court shall appoint counsel to represent the defendant for purposes of the initial appearance unless, after a full advisement, the defendant makes a knowing, intelligent, and voluntary waiver of his or her right to counsel. If the defendant remains in custody, the appointment of counsel continues until the defendant is released from custody. If the defendant is released from custody, he or she may apply for court-appointed counsel, and the court shall appoint counsel if the court determines that the defendant is indigent and the charged offense includes a possible sentence of incarceration.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1310: Increasing Potential Liability of Oil and Gas Operators Beyond Interference with Surface Use

On March 2, 2016, Rep. Joseph Salazar and Sen. Morgan Carroll introduced HB 16-1310Concerning Liability for the Conduct of Oil and Gas Operations. The bill was introduced in the House Health, Insurance, & Environment Committee, where it was referred, unamended, to the House Committee of the Whole. The bill passed Second Reading with amendments and Third Reading with no amendments. In the Senate, the bill was assigned to the Agriculture, Natural Resources, & Energy Committee.

Under current law governing relations between surface landowners and oil and gas operators, to prevail on a claim a surface owner plaintiff must present evidence that the operator’s use of the surface land materially interfered with the surface owner’s use of the surface of the land. This bill increases the potential liability of operators beyond interference with the owner’s use of the surface by allowing a plaintiff to present evidence that the oil and gas operations caused bodily injury to the surface owner or any person residing on the property of the surface owner, or that the operations damaged the surface owner’s property.

The bill also holds oil and gas operators strictly liable if the operations, including a hydraulic fracturing treatment or reinjection operation, cause an earthquake that damages real or personal property or injuries an individual, wherever the person or property is located. A plaintiff establishes a prima facie case of causation in this context if the plaintiff shows: (1) An earthquake has occurred; (2) the earthquake damaged the plaintiff’s property or injured the plaintiff; and (3) the oil and gas operations occurred within an area that has been determined to have experienced induced seismicity by a study of induced seismicity that was independently peer-reviewed. The strict liability established by this bill is not waivable by contract, and a plaintiff has five years after discovery of the damages or injury to file an action.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 4/20/2016

On Wednesday, April 20, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Reece v. AES Corp.

Johnson v. Oklahoma Department of Transportation

United States v. Andrews

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