October 18, 2017

Archives for May 4, 2016

Finalists Selected for 17th Judicial District Court Vacancy

On Tuesday, May 3, 2016, the Seventeenth Judicial District Nominating Commission announced its May 2 selection of three finalists to fill an upcoming vacancy on the Seventeenth Judicial District Court, occasioned by the retirement of Hon. C. Scott Crabtree on July 1, 2016. The three nominees are  Jaclyn Casey Brown of Westminster, Tomee Crespin of Thornton, and Sharon Holbrook of Broomfield.

Jaclyn Casey Brown is currently a partner at Lewis Roca Rothgerber Christie in Denver, where she practices commercial and complex civil litigation involving business entities ‎of various sizes in the real estate and business practice groups. Tomee Crespin is a solo practitioner at the Law Office of Tomee Crespin, where she practices criminal and family law litigation and participates in truancy court matters. Sharon Holbrook is a magistrate in the Seventeenth Judicial District, where she is  is assigned to the juvenile division, and has also completed rotations in the domestic, criminal, and civil divisions.

Under the Colorado Constitution, the governor has 15 days from May 3, 2016, in which to appoint one of the nominees to the district court. 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.

HB 16-1442: Updating the “Colorado Local Government Election Code”

On April 15, 2016, Rep. Su Ryden and Sen. Jessie Ulibarri introduced HB 16-1442Concerning Technical Modifications to Laws Enacted in 2014 Governing the Administration of Nonpartisan Elections Conducted by a Local Government that are Not Coordinated by a County Clerk and Recorder. The bill was assigned to the House State, Veterans, & Military Affairs Committee, where it was referred, unamended, to the House Committee of the Whole. The bill passed Second and Third Readings in the House with no amendments. It was introduced in the Senate and assigned to the Health & Human Services Committee.

This bill makes the following updates to the Colorado Local Government Election Code, which governs nonpartisan elections not coordinated by a county clerk and recorder:

(1) Section 1 of the bill defines the term “affidavit” as a sworn statement in writing, including a self-affirmation.

(2) Section 2 clarifies the date upon which nonpartisan officer’s term of office commences is calculated based on the date the election results are certified, rather than a date following the survey of returns.

(3) With respect to candidate self-nomination and acceptance forms for special district or business improvement director, section 3 of the bill allows an amended self-nomination and acceptance form to be accepted by the designated election official until the close of business on the 67th day before an election.

(4) With respect to the appointment of election judges, section 4 prohibits a current candidate for director or any immediate family member, to the second degree, of such candidate from being eligible to serve as an election judge. Section 7 establishes the same prohibition for eligibility to serve as a watcher for a candidate for director.

(5) Current law requires a designated election official to give notice of a court-ordered special district election. Section 5 directs a designated election official to also take “such other actions” as provided in the court’s order.

(6) Section 6 states the designated election official may recertify the order or content of a ballot if: a candidate withdraws from the race; or there are technical revisions to a ballot issue or question prior to the printing of the ballot.

(7) Current law requires ballots for elections conducted under the Code to feature both a stub and a duplicate stub. Section 8 states a dublicate stub is not required for a ballot that is prepared for an independent mail ballot election.

(8) With regard to applications for absentee voter ballots, Section 9: changes the day of the week, from the Friday before a local government election to the Tuesday before such an election, by which applications for such ballots must be filed; and requires identification return envelopes to contain a non-forwarding instruction, such as “Do Not Forward. Address Correction Requested.”

(9) Section 10 states if there is no designated election official presently appointed in the local government, the secretary of the local government shall process the application for permanent absentee status.

(10) Section 11 aligns terminology with respect to entities that may conduct an independent mail ballot election under the Code by replacing “political subdivision, other than a school district,” with “local government.”

(11) Section 12 states a designated election official must send a mail ballot to each covered elector, as that term is defined by the “Uniform Military and Overseas Voter Act,” residing within the boundaries of a local government.

(12) Section 13 removes the requirement that a mail ballot return envelope have a flap covering the elector’s signature.

(13) Regarding contests of elections conducted under the Code:

(a) Currently, a statement of intent to contest an election may be verified by affidavit executed by either the contestor or “any eligible elector of the local government.” Section 16 removes the latter so that the contestor himself or herself must verify by affidavit a statement of intent to contest the election.

(b) Section 17 requires a contestor’s statement, or a contestee’s answer, to list the persons, rather than the number of persons, whose votes caused the contest.

(14) Lastly, section 18 of the bill establishes the recall of a special district director is governed by part 5 of article 4 of title 31, with a few expectations, including the replacement of terminology and exclusion of certain paragraphs and terms.

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

HB 16-1399: Prohibiting Occupation-Based Denial of Workers’ Compensation Mental Impairment Claim

On March 22, 2016, Rep. Jonathan Singer and Sen. Linda Newell introduced HB 16-1399Concerning a Prohibition on the Denial of a Workers’ Compensation Claim for Mental Impairment Based on the Occupation of a Worker, and, in Connection Therewith, Making an Appropriation. The bill was assigned to the House Public Health Care & Human Services Committee, where it passed unamended and was referred to Appropriations. The Appropriations Committee amended the bill and referred it to the House Committee of the Whole for Second Reading. It was further amended on Second Reading but passed Third Reading unamended. The bill was introduced in the Senate and assigned to the State, Veterans, & Military Affairs Committee.

The bill clarifies that a workers’ compensation claim for mental impairment benefits may not be denied based on the occupation of the worker. Each claimant must be evaluated as to that individual’s medical condition by a licensed, level II fully accredited physician, psychiatrist, or psychologist. For the 2016-2017 state fiscal year, the bill requested an appropriation of $24,072 to the Department of Labor and Employment to be used by the division of workers’ compensation to implement this bill.

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

HB 16-1394: Standardizing Statutory Definitions Related to At-Risk Persons

On March 17, 2016, Rep. Dave Young and Sen. Kevin Grantham introduced HB 16-1394Concerning Clarifying Definitions Related to At-Risk Persons. The bill was assigned to the House Health, Insurance, & Environment Committee, where it was amended and referred to the House floor for Second Reading. The House Committee of the Whole re-referred the bill back to the Health, Insurance, & Enviroment Committee, where it again passed with no further amendments.

The bill implements the following recommendations of the at-risk adults with intellectual and developmental disabilities mandatory reporting implementation task force.

(1) Standardizing statutory definitions among the “Colorado Criminal Code,” the Office of Protective Services for At-risk Adults in the Department of Human Services, and the Office of Community Living in the Department of Health Care Policy and Financing.

Under the Colorado Criminal Code, a number of amendments and additions were made to the definitions section of article 6.5, wrongs to at-risk adults, of which the following are noteworthy: “at risk person” means an at-risk adult, adult with an intellectual and developmental disability (IDD), elder, or juvenile; “exploitation” is expanded to include harassment, undue influence, or intimidation used to create a hostile environment; “mistreated” or “mistreatment” means abuse, caretaker neglect, exploitation, act/omission that threatens the health, safety, or welfare of at at-risk person, or act/omission that exposes an at-risk person to an imminent risk of bodily injury.

Under the Human Services Code, the following terms, as defined under the Criminal Code (and amended by this bill), were added to the definitions section of article 3.1, protective services for at-risk adults: “abuse,” “at-risk adult” (newly defined therein), and “mistreatment.”

Under the Health Care Policy and Financing statutes, the following terms, as defined under the Criminal Code (and amended by this bill), were added to the definitions section of article 10, community living: “abuse,” “authorized representative,” “caretaker,” “caretaker neglect,” “exploitation,” “mistreated” or “mistreatment,” and “undue influence.”

(2) Specifying that enhanced penalties for crimes against an at-risk person (as amended from “at-risk adults and at-risk juveniles”) apply to all persons 70 years of age or older and to all persons with a disability.

(3) Clarifying and expanding the definitions of persons who are required to report instances of mistreatment of at-risk elders or at-risk adults with IDD. With respect to the Colorado Criminal Code, the list of mandatory reporters is expanded to include: any person providing health care or health-care-related services; emergency first responders; code enforcement officers; veterinarians; psychologists, counselors and therapists; persons performing case management or assistant services; staff of county departments of human or social services; staff of the State Departments of Human Services, Public Health and Environment, or Health Care Policy and Financing; staff of senior congregate centers; staff of area agencies on aging; those operating specialized transportation services; staff of housing agencies for at-risk adults; and personnel at schools serving students in preschool through twelfth grade. The list of mandatory reporters under the Human Services Code was expanded in the same manner as the list of mandatory reporters under the Criminal Code.

(4) Under the Human Services Code, the time when a law enforcement agency or county department is required to prepare a written report is reduced from 48 hours to 24 hours.

(5) Specifying that a county department of human or social services, pursuant to the Human Servicers Code, is to conduct an investigation of allegations of mistreatment of an at-risk adult.

(6) Clarifies that the human rights committee, pursuant to the Health Care Policy and Financing statutes, is responsible for ensuring the investigation of allegations of mistreatment of persons with IDD.

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

Tenth Circuit: Court Reluctant to Infer Illegal Activity from Disturbing Legal Activities

The Tenth Circuit Court of Appeals issued its opinion in United States v. Edwards on Tuesday, December 29, 2015.

During a sting operation, Officer Chris Cornwell discovered that Paul Edwards was using a file sharing network to exchange sexually suggestive photos of a young girl. In addition to exchanging hundreds of photos of the girl, Edwards replied to some user comments in a way that suggested he was sexually attracted to the child. None of the photos posted by Edwards were illegal child pornography; rather, they were legal child erotica. Nevertheless, Officer Cornwell prepared an affidavit for a search warrant based on his descriptions of several of the images and noting that people who collect child pornography also often collect child erotica. On the basis of the information in the affidavit, the magistrate issued a search warrant, resulting in the discovery of thousands of images of child pornography at Edwards’ residence.

A grand jury indicted Edwards on one count of possession of child pornography and five counts of receipt of child pornography. Edwards moved to suppress the evidence found in his home, claiming the search warrant was not supported by probable cause. The district court acknowledged that the warrant presented a close question, but denied Edwards’ motion, concluding that because law enforcement explained that those who collect child erotica often also collect child pornography, there was no error in the magistrate’s issuance of the warrant. The district court further found that even if the warrant were issued erroneously, the good faith exception to the exclusionary rule applied.

Edwards entered a conditional guilty plea to the first count and the district court dismissed the remaining counts on the government’s motion. Edwards was sentenced to 63 months’ imprisonment followed by 7 years’ supervised release. He appealed his conviction and sentence, arguing his motion to suppress should have been granted.

The Tenth Circuit first evaluated whether the magistrate erred in issuing the warrant, and found that based on the totality of the circumstances, the affidavit failed to establish sufficient probable cause. The Tenth Circuit noted that the investigating officers never alleged that any of the material shared by Edwards was illegal child pornography and in fact the officers agreed that the material was legal child erotica. The Tenth Circuit next evaluated the investigating officer’s assertion that people who collect child pornography also frequently collect child erotica, and found that the officer’s assertion did not necessarily indicate the reverse—that people who collect child erotica also collect child pornography. The Tenth Circuit remarked that courts are reluctant to infer illegal activity from legal activity, regardless of whether the legal activity is disturbing. Officer Cornwell’s affidavit failed to show a causal connection between people who legally collect child erotica and those who illegally collect child pornography, and the district court erred in assuming that because the inverse was true, Officer Cornwell’s affidavit was sufficient. The Tenth Circuit ruled that, in absence of any evidence that Edwards collected child pornography, the affidavit failed to establish probable cause by averring that people who possess child pornography also collect child erotica and participate in online forums. The Tenth Circuit found that the pedophiliac tendencies of a person are insufficient to establish probable cause for possession of child pornography.

However, the Tenth Circuit agreed with the district court that the exclusionary rule’s good faith exception applied. Although the magistrate should have been on notice that the affidavit did not support probable cause, the officers who executed the warrant were reasonable in their reliance on the magistrate’s determinations. Edwards argued that the officers’ reliance on the warrant was unreasonable because (1) the affidavit contained false information that the officer knew to be false, (2) the issuing magistrate wholly abandoned the judicial role, (3) the affidavit in support of the warrant was so lacking indicia of probable cause as to render belief in its existence entirely unreasonable, and (4) the warrant was so facially deficient the executing officer could not believe it was valid. The Tenth Circuit quickly disposed of Edwards’ first, second, and fourth arguments, finding no judicial misconduct nor facial deficiencies to the warrant. As to the third argument, the Tenth Circuit found reliance on the warrant was not unreasonable in this case. Although the link between Edwards’ postings and possession of child pornography was “logically fallacious,” the Tenth Circuit held it was not so unsound as to render the officers’ reliance on the warrant objectively unreasonable. The Tenth Circuit noted that both the magistrate and district overlooked the logical inconsistency of Officer Cornwell’s argument, and it was not unreasonable for him to have also overlooked that inconsistency.

The Tenth Circuit affirmed the district court’s denial of Edwards’ motion to suppress based on the good-faith exception to the exclusionary rule.

Tenth Circuit: Jurisdiction Lacking Where Denial of Summary Judgment Based on Genuine Issues of Material Facts

The Tenth Circuit Court of Appeals issued its opinion in Henderson v. Glanz on Monday, December 28, 2015.

Aleshia Henderson was an inmate at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma. She was in a holding cell of the medical unit in handcuffs and leg restraints awaiting medical treatment when Detention Officer (DO) Johnson unlocked the door in view of Inmate Jessie Earl Johnson, a violent offender who was considered extremely high risk for escape and required “extreme caution.” DO Thomas, unaware that the holding cell door was unlocked, left the medical unit to respond to a medical emergency. When a nurse returned with another emergency patient, DO Johnson left the medical unit to assist the nurses.

During this time, Inmate Johnson reported to Inmate Williams that he was going to make sexual contact with Henderson. He left his unlocked holding cell and entered Inmate Henderson’s unlocked holding cell, exiting about 10 minutes later. Both DO Johnson and DO Thomas observed Inmate Johnson leaving Henderson’s cell. DO Johnson immediately confronted Inmate Johnson, who denied being in Henderson’s cell. DO Johnson then interviewed Inmate Henderson, who would not speak but nodded when asked if Inmate Johnson had sexually assaulted her. She was taken to a hospital, where an examination showed bruising, swelling, and a midline vaginal tear consistent with forcible sexual conduct. Inmate Johnson was subsequently charged with rape, though the charge was dismissed when Henderson briefly recanted out of fear for her mother’s safety.

DO Johnson and Thomas told their immediate supervisor, Sergeant Pirtle, about the incident, and the Tulsa County Sheriff’s Office (TCSO) conducted an investigation. TCSO determined that department policy was violated when the DOs left their posts, failing to maintain the required two officers in the medical unit, and when they failed to maintain the log book. When asked later how she could have been unaware of the risk to Henderson, DO Johnson stated, “I don’t know how to answer that.”

Henderson brought suit under 42 U.S.C. § 1983 against DO Johnson, DO Thomas, and Tulsa County Sheriff Glanz, asserting violations of her Eighth Amendment rights. Defendants moved for summary judgment based on qualified immunity because Henderson could not show a constitutional violation. The district court denied summary judgment as to DO Johnson and DO Thomas, concluding there were genuine issues of material fact regarding whether DO Johnson and DO Thomas were aware of the risk of assault. The district court denied summary judgment to Sheriff Glanz because there were genuine issues of material fact regarding whether he was aware of the risk of assault to Henderson. Defendants appealed.

On appeal, the Tenth Circuit first determined it lacked jurisdiction to consider DO Johnson’s and Sheriff Glanz’s appeals. The Tenth Circuit noted that the district court’s denial of summary judgment was not ripe for interlocutory appeal because it was not a final order and did not fall into any of the exceptions allowing interlocutory appeal. The Tenth Circuit also noted that the district court found facts sufficient to support its denial of summary judgment, concluding that by viewing the facts in the light most favorable to Henderson, a reasonable jury could find a constitutional violation.

As to DO Thomas, the Tenth Circuit found it had jurisdiction to assess the district court’s denial of summary judgment. Because DO Thomas did not know DO Johnson had unlocked Henderson’s cell door and was not there when DO Johnson left the unit, he was not subjectively aware of a substantial risk of bodily harm to Henderson. The Tenth Circuit reversed the district court’s denial of qualified immunity to DO Thomas.

The Tenth Circuit dismissed the appeals of DO Johnson and Sheriff Glanz for lack of jurisdiction, and reversed the district court’s denial of summary judgment to DO Thomas.

Tenth Circuit: Unpublished Opinions, 5/3/2016

On Tuesday, May 3, 2016, the Tenth Circuit Court of Appeals issued four published opinions and two unpublished opinions.

United States v. Foster

United States v. Williams

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