May 27, 2017

Archives for March 2017

Colorado Court of Appeals: Dependency and Neglect Court Should Have Followed ICWA’s Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of L.L. on Thursday, March 30, 2017.

Dependency and NeglectIndian Child Welfare ActNoticeBurden of Proof.

In this dependency and neglect case concerning L.L., his mother, A.T., told the juvenile court at a shelter hearing that she had possible Apache Native American ancestry. Later, A.T. filed written information that included tribal card numbers and roll numbers. The Denver Department of Human Services (Department) did not send notice of the proceedings to any of the Apache Tribes. A.T. again stated that she had Indian heritage at a pretrial hearing, but the juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. is a member or is eligible for tribal membership. The court also did not treat L.L. as an Indian child pending verification from the tribe. Following a jury verdict, the court adjudicated L.L. dependent and neglected.

On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, the court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.

A.T. also contended that the juvenile court violated ICWA by not requiring the jury to base its findings on a heightened clear and convincing evidentiary standard. There is no language in ICWA or associated rules or guidelines that indicates a heightened burden of proof for the adjudicatory hearing in a dependency and neglect proceeding. Thus, the state is only required to prove the allegations in the petition by a preponderance of the evidence in all adjudications, whether involving Indian or non-Indian children. The juvenile court did not err when it instructed the jury regarding the Department’s burden of proof.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Oil and Gas Commission Has Authority to Issue Rule at Petitioner’s Request

The Colorado Court of Appeals issued its opinion in Martinez v. Colorado Oil and Gas Commission on Thursday, March 23, 2017.

Oil and Gas Conservation ActColorado Oil and Gas Conservation CommissionPublic Health and Safety.

Petitioners filed a petition for rulemaking pursuant to the Colorado Oil and Gas Conservation Commission’s Rule 529(b). Petitioners proposed a rule requesting that the Commission not issue permits for drilling oil and gas wells unless certain conditions were met to demonstrate that the drilling would not have specified adverse effects. The Commission ultimately denied the petition, concluding that (1) the proposed rule mandated action that exceeded the Commission’s statutory authority; (2) the requested third-party review contradicted the Commission’s nondelegable duty to promulgate rules; and (3) the public trust doctrine, which petitioners relied on to support their request, has been expressly rejected in Colorado. The district court affirmed the Commission’s order after concluding that the Commission rationally decided to deny the petition after considering input from stakeholders on both sides of the fracking issue in accordance with the Oil and Gas Conservation Act’s requirement of a balance between the development of oil and gas resources and the protection of public health, safety, and welfare.

On appeal, petitioners contended that the district court and the Commission erred in interpreting the Act. The Colorado Court of Appeals determined that the plain meaning of the statutory language indicates that fostering balanced development, production, and use of natural resources is in the public interest when that development is completed subject to the protection of public health, safety, and welfare. Therefore, the Commission erred in interpreting C.R.S. § 34-60-102(1)(a)(I) as requiring a balance between development and public health, safety, and welfare.

The district court’s and Commission’s orders were reversed and the case was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/30/2017

On Thursday, March 30, 2017, the Tenth Circuit Court of Appeals issued one published opinion and nine unpublished opinions.

Singh v. Sessions

Gabriel v. United States

Horner v. Bryant

United States v. Perez

Poff v. State of Oklahoma

United States v. Velarde

United States v. Porter

Gaedeke Holdings VII Ltd. v. Baker

Madden v. Madden

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

John Scipione Appointed to Arapahoe County Court

On Wednesday, March 29, 2017, the governor appointed John Scipione to the Arapahoe County Court in the 18th Judicial District. He will fill a vacancy created by the retirement of Hon. Robert C. Tobias, effective May 31, 2017.

Scipione is currently a magistrate in the 18th Judicial District, where he presides over first appearances, felony advisements, bond hearings, and preliminary hearings for all felony cases. Prior to his work as a magistrate, Scipione worked for Taussig, Scipione & Taussig, LLC from 2011 to 2012; Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C. from 2008 to 2011; Herrold & Herrold, P.C. from 2007 to 2008; Law Cash/Esquire Capital from 2006 to 2007; and Caplis, Scipione & Deasy, LLC from 2003 to 2007. He received his law degree from the University of Colorado and his undergraduate degree from the State University of New York at Binghamton.

For more information about the appointment, click here.

Colorado Court of Appeals: Premises Liability Act Governs Auto Collision on Private Property

The Colorado Court of Appeals issued its opinion in Tancrede v. Freund on Thursday, March 23, 2017.

Private PropertyTrespassInjuriesNegligent DrivingPremises Liability Act.

Plaintiff was a passenger in a car that was traveling through a private alley owned by defendants. Plaintiff’s vehicle collided with a Denver East Machinery Company (DEMC) truck driven by Freund. A police accident report determined that Freund was at fault and drove carelessly when rounding a corner of the DEMC building without looking or slowing down.

Plaintiff asserted claims of negligence and negligence per se. Defendants moved for summary judgment, arguing that because the accident occurred on their private property, plaintiff could only assert claims under the Premises Liability Act (PLA). The trial court granted the motion but allowed plaintiff to amend her complaint to assert a PLA claim, which plaintiff did. Defendants moved again for summary judgment and the trial court granted the motion, determining that plaintiff was a trespasser, and because she did not allege a willful or deliberate injury, she was not entitled to relief.

On appeal, plaintiff contended that the PLA does not preclude her negligent driving claim and that the court erred in entering the initial summary judgment against her. The PLA limits the liability of landowners for injuries occurring on their property and preempts common law tort claims against landowners by specifying the duties owed to particular classes of injured plaintiffs. Such preempted claims include those for negligence per se against landowners for damages occurring on their premises. The collision arose from activities conducted on defendants’ property; thus the PLA controlled, and plaintiff was a trespasser who could only recover if she could demonstrate that defendants injured her willfully or deliberately. Plaintiff made no such allegations.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/30/2017

On Thursday, March 30, 2017, the Colorado Court of Appeals issued no published opinion and 22 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 3/29/2017

On Wednesday, March 29, 2017, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinions.

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

Colorado Court of Appeals: Court Procedure Met Joinder Statute’s Purpose of Preventing Successive Prosecutions

The Colorado Court of Appeals issued its opinion in People v. Leverton on Thursday, March 23, 2017.

Theft by Receiving—Possession—Drug Paraphernalia—Mandatory Joinder—Double Jeopardy—Prior Statements—Impeachment—Evidence.

The victim started her car and left it running while she went inside her home to retrieve some belongings. When she returned to where the car had been parked, the car was gone. She immediately reported the theft to the police. A few days later, a police officer pulled over the stolen car. Leverton and two women were passengers. Leverton told the officer that the car belonged to the victim, whom he claimed was his girlfriend. Leverton was arrested and transported to the police station. After removing Leverton from the police vehicle, the officer discovered a pipe typically used to smoke methamphetamine. Leverton was initially charged with possession of drug paraphernalia. Shortly thereafter in a separate case he was charged with theft by receiving. The cases were later joined on the prosecution’s motion, over defendant’s objection. The women passengers testified at Leverton’s trial and were questioned by the prosecutor about oral statements they allegedly had made to police following their arrests. Leverton was convicted as charged.

On appeal, Leverton argued that the trial court erred when it rejected his guilty plea on the paraphernalia charge and then permitted the prosecution to add that charge to the theft complaint because the result was that he was effectively charged with the same offense in two separate cases. He claimed that this violated Colorado’s mandatory joinder statute and the Double Jeopardy Clauses of both the U.S. and Colorado Constitutions. The Court of Appeals noted that Leverton did not allege that he was reprosecuted for either offense after he was convicted or that he was sentenced or otherwise punished multiple times for those offenses. Here, the prosecution moved to join the two offenses prior to Leverton’s attempt to plead guilty to the paraphernalia charge. The court’s procedure met the purpose of the mandatory joinder statute, to prevent successive prosecutions, and Leverton raised no claim of unfair prejudice resulting from the procedure. Further, the court acted within its discretion when it rejected Leverton’s guilty plea to the petty offense. And because the court had not accepted Leverton’s guilty plea on the paraphernalia charge, double jeopardy had not attached and there was no due process violation.

Leverton next argued that the trial court erred in permitting the prosecution to examine the two women witnesses about their prior statements to the police, alleging this evidence was inadmissible and violated his confrontation rights. Both women testified that they did not remember what happened the night the stolen car was pulled over, nor did they remember any statements they made to the police. To impeach the witnesses, the prosecutor was entitled to confront them with the exact language of their prior inconsistent statements. Therefore, the court properly admitted the statements.

Leverton also argued that the prosecution did not present sufficient evidence to prove beyond a reasonable doubt that he committed theft or possessed drug paraphernalia. A few days after the car had been reported stolen, the police found Leverton sitting in the car’s front passenger seat. Though Leverton told the police that the car had been given to him by the victim, his statement was directly refuted by the victim’s testimony that she had never met him. This and other evidence was sufficient to support the theft by receiving conviction. There was also sufficient evidence concerning the pipe found in the police vehicle for the jury to convict Leverton of possession of drug paraphernalia.

Leverton also argued that his convictions were based on his associations with other persons. Having found that the prosecution presented sufficient evidence proving that Leverton and not some other person committed the crimes, the Court rejected this argument.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attorney in Malpractice Case Must Raise Collectibility as Affirmative Defense

The Colorado Court of Appeals issued its opinion in Gallegos v. LeHouillier on Thursday, March 23, 2017.

Legal MalpracticeBurden of ProofCollectabilityAffirmative Defense.

Plaintiff Gallegos sued defendants LeHouillier, an attorney, and his law firm, LeHouillier & Associates, P.C. (collectively, LeHouillier), for legal malpractice. The jury found that LeHouillier had negligently breached his duty of professional care when handling an underlying medical malpractice case for Gallegos. The trial court placed the burden on Gallegos to prove that any judgment in the underlying case was collectable, and it ruled that Gallegos had provided sufficient evidence to prove that point, entering judgment in her favor.

On appeal, LeHouillier contended that the judgment must be reversed because collectibility is an element that a plaintiff must prove in a legal malpractice case, and Gallegos did not prove that any judgment that she would have received in the underlying malpractice case would have been collectible. Gallegos countered that the issue of collectibility is an affirmative defense and the court should have required LeHouillier to prove that the judgment was not collectible. The Court of Appeals determined that the record did not contain sufficient evidence that the judgment was collectible. In addition, the trial court erred when it placed the burden on Gallegos to prove that any judgment in the underlying medical malpractice case would have been collectible; it should have required LeHouillier (1) to raise the question of collectibility as an affirmative defense and (2) to prove that any judgment Gallegos would have received would not have been collectible.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/28/2017

On Tuesday, March 28, 2017, the Tenth Circuit Court of Appeals issued two published opinions and eight unpublished opinions.

United States v. Quinn

United States v. Kalu

United States v. Hernandez-Banega

United States v. Phung

United States v. Rodriguez

Maiteki v. Marten Transport, Ltd.

Bejar v. Department of Veterans Affairs

McCoy v. State of Wyoming

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

Tenth Circuit: Unpublished Opinions, 3/27/2017

On Monday, March 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Evans

United States v. McKinney

United States v. Rollins

United States v. Morales

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

Tenth Circuit: Random Drug Test for County Employee Acceptable When Employee Holds Safety-Sensitive Position

The Tenth Circuit Court of Appeals issued its opinion in Washington v. Unified Government of Wyandotte County, Kansas on February 6, 2017.

Roberick Washington was a lieutenant at the Wyandotte Country Juvenile Detention Center in Kansas City, Kansas. The position entailed Washington interacting with residents, conducting disciplinary hearings for residents, driving the County van to take juveniles to the intake assessment center, and being present if a fight broke out. Wyandotte County has a random drug testing policy that applies to employees in “safety sensitive positions.” The county’s Policy on Substance Abuse and Drug and Alcohol Testing lists Washington’s position, “juvenile lieutenant,” as a safety sensitive position. The policy states that a failed drug or alcohol test is grounds for discipline, including discharge.

Sheriff Donald Ash terminated Washington after he tested positive for cocaine following a random drug test. Pursuant to the Human Resource Guide, Washington Appealed Ash’s decision to the administrator of the Juvenile Detention Center. This grievance was denied, and Washington appealed to the County Administrator’s Office. After a hearing, an assistant county administrator upheld the termination. Washington claims that he sought an evidentiary hearing and a name-clearing hearing, but was denied both.

Washington alleged three violations of 42 U.S.C. § 1983, namely that the drug test was an illegal search in violation of his Fourth and Fourteenth Amendment rights, he was deprived of his property interest in continued employment without due process, and defendants failed to provide him with a name-clearing hearing. Additionally, Washington claimed the county breached an implied contract created by its written disciplinary policies in violation of state contract law. The district court granted summary judgment for the defendants on all counts.

The Tenth Circuit first addressed Washington’s § 1983 claims. Municipalities are not protected by qualified immunity, so to grant summary judgment in favor or a municipality, the pleadings and supporting materials must establish there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. A plaintiff must identify an unconstitutional policy that caused the claimed injury in order for a municipality to be liable under § 1983. A plaintiff must establish that the municipal employee causing the harm violated the plaintiff’s constitutional rights.

The Tenth Circuit first addressed Washington’s claim that the county’s random drug test violated the Fourth Amendment’s probable cause and warrant requirements. Ordinarily, a search must be based on individualized suspicion of wrongdoing. However, when the government asserts a special need beyond ordinary crime detection, the Tenth Circuit has found suspicionless drug testing reasonable if the government’s interests outweigh the individual’s privacy interests. Courts have held that when drug use among the individuals tested would threaten the workplace or public safety, the government’s concerns are real. Additionally, courts have held that random drug tests are effective at detecting and deterring drug use.

The Tenth Circuit held that the county had a legitimate special need because the random drug tests to juvenile lieutenants ensured the safety and welfare of the children housed in the juvenile detention center. The juvenile lieutenant position involved interactions with residents, and drug use would impair his ability to interact with the youth. Additionally, the random testing minimized the possibility that employees would evade detection and maximized deterrence. Therefore, the Tenth Circuit found a legitimate special need for the random drug testing.

The Tenth Circuit then weighed the special need against Washington’s privacy interests to determine if the tests were reasonable. The Tenth Circuit held that as a correctional employee, Washington’s expectation of privacy was diminished. Additionally, the drug testing was minimally invasive, as Washington provided a sample behind a closed door with no supervision.

Next, the Tenth Circuit held that the county presented two interests that were important enough to justify testing Washington. The first was that Washington was working with juveniles in an educational setting, and an employee’s illegal drug use presented a risk of harm to minors. Second, if an employee has law enforcement duties and access to direct contact with inmates, that employee’s illegal use of drugs presents a significant threat to inmates and the security of the facility. The Supreme Court has held that suspicionless drug testing of employees in certain safety sensitive positions was reasonable. In this case, the county’s policy lists “juvenile lieutenant” as a safety sensitive position. The Tenth Circuit held that this classification was reasonable to Washington’s position based on the duties that he performed. Therefore, the Tenth Circuit held that in this specific instance, the county’s interests were more important and outweighed Washington’s diminished privacy rights, and thus the random drug test was reasonable. Consequently, neither Sheriff Ash nor the county could be subject to § 1983 liability.

Next, the Tenth Circuit addressed Washington’s claim that the county’s personnel policies established he had a protected property interest in his continued employment at the Juvenile Detention Center. The Tenth Circuit stated a two-part inquiry to determine whether a plaintiff was denied procedural due process. First, the plaintiff must have a protected interest to which due process is applicable. The second inquiry is whether the plaintiff was afforded an appropriate level of due process.

Here, the Tenth Circuit looked to Kansas state law to determine if Washington had a protected property interest. The Tenth Circuit determined that Kansas law established that public employment is presumptively at-will, and that Washington did not provide evidence to rebut this presumption. The Tenth Circuit held that personnel policies alone were insufficient to create an implied employment contract. Therefore, the Tenth Circuit affirmed the district court’s grant of summary judgment on this claim.

The Tenth Circuit affirmed the district court’s grant of summary judgment for Washington’s claim that he was entitled to a name-clearing hearing because Washington’s pretrial order did not reference any damaged liberty interest.

Finally, the Tenth Circuit holds that because Washington failed to establish that there was an implied employment contract, the county was entitled to summary judgment on his breach of contract claim.