October 18, 2017

Archives for October 2017

Tenth Circuit: Unpublished Opinions, 10/16/2017

On Monday, October 16, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Sigg v. Allen County, Kansas

United States v. Rodela-Castillo

Bird v. Wyoming Attorney General

Case summaries are not provided for unpublished opinions.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

Colorado Supreme Court: Announcement Sheet, 10/16/2017

On Monday, October 16, 2017, the Colorado Supreme Court issued one published opinion.

Ronquillo v. People

The summary of this case is forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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Tenth Circuit: Unpublished Opinions, 10/13/2017

On Friday, October 13, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Cooley v. Town of Kiowa

Ali v. Jones

Brimeyer v. Nelson

United States v. Jordan

Case summaries are not provided for unpublished opinions.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

Colorado Supreme Court: Hospital Has No Private Right of Action Against Police Department for Cost of Treatment

The Colorado Supreme Court issued its opinion in City of Arvada ex rel. Arvada Police Department v. Denver Health & Hospital Authority on Monday, October 9, 2017.

Prisons—Costs of Incarceration.

Arvada police arrested a severely injured man and sent him to Denver Health Medical Center. Denver Health and Hospital Authority (Denver Health) sued Arvada for the cost of care, claiming that C.R.S. § 16-3-401, which says that persons in custody “shall be . . . provided . . . medical treatment,” required Arvada to pay the hospital for the detainee’s care. Here, the Colorado Supreme Court clarified that (1) whether a statute provides a private right of action is a question of standing, and (2) the same test for a private right of action under Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo. 1992), applies for claims against both governmental and non-governmental defendants. Applying Parfrey to Denver Health’s statutory claim, the court held that C.R.S. § 16-3-401 does not provide hospitals a private right of action to sue police departments for the cost of providing healthcare to persons in custody. Accordingly, it concluded that the trial court erred by granting summary judgment to Denver Health on the statutory claim. The court remanded the case for consideration of Denver Health’s unjust enrichment claim based on Arvada’s statutory duty to provide care for persons in custody.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Colorado Human Smuggling Statute Preempted by Federal Immigration & Nationality Act

The Colorado Supreme Court issued its opinion in Fuentes-Espinoza v. People on Monday, October 9, 2017.

Alien Smuggling—Field Preemption—Conflict Preemption.

This case required the Colorado Supreme Court to determine whether Colorado’s human smuggling statute, C.R.S. § 18-13-128, is preempted by the federal Immigration and Nationality Act, 8 U.S.C. §§ 1101–1537 (2017) (INA). The court concluded that the INA preempts C.R.S. § 18-13-128 under the doctrines of both field and conflict preemption. In reaching this conclusion, the court agreed with a number of federal circuit courts that have reviewed the same INA provisions at issue here and have determined that those provisions create a comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens and thus evince a congressional intent to occupy the field criminalizing such conduct. In addition, applying the analyses set forth in those federal decisions, the court concluded that C.R.S. § 18-13-128, like the state human smuggling statutes at issue in the federal cases, stands as an obstacle to the accomplishment and execution of Congress’s purposes and objectives in enacting its comprehensive framework. Accordingly, the court reversed petitioner’s judgment of conviction under C.R.S. § 18-13-128.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 10/12/2017

On Thursday, October 12, 2017, the Colorado Court of Appeals issued no published opinion and 37 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, 10/12/2017

On Thursday, October 12, 2017, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Kirk v. Burke

Dudley v. Kansas Department of Corrections

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

How Did We Get Here From There?

We got nudged, that’s how.

Economic news is a media mainstay, but I’ve always felt that real people don’t live in “The Economy.” Instead, I think we live in a world forged from our outlook on life, which is derived from personal biases and cultural norms, so that economics is only news when our internal outlook (“I can afford that”) clashes with external reality (“No I can’t”).

Turns out somebody just won a Nobel Prize for thinking along those lines (well, sort of), except he took it much further and figured out how policy-makers who know better than we do can come to our rescue by nudging us ahead of time in the direction we really ought to go.

Richard H. Thaler is an economist at the University of Chicago, and Cass R. Sunstein is a Harvard Law School Professor. Together, they wrote Nudge: Improving Decisions About Health, Wealth, and Happiness (2009). Their concept of “nudging” super-sized behavioral economics and spawned a lucrative new consulting field. (Google “nudge” and you’ll see what I mean.) Prof. Thaler was awarded the Nobel Prize not only for Nudge, but for a body of work the The Economist summarized as follows in an article earlier this week:

Not long ago, the starting assumption of any economic theory was that humans are rational actors who maximise their utility. Economists summarily dismissed anyone insisting otherwise. But over the past few decades, behavioural economists like Richard Thaler have progressively chipped away at this notion. They combine economics with insights from psychology to show how heavily economic decisions are influenced by cognitive biases. On September 9th Mr. Thaler’s work was recognised at the highest level when the Nobel Committee awarded him this year’s prize in economics. Mr. Thaler thus becomes one of very few behavioural economists to win the prize.

That started to change when Mr. Thaler and Cass Sunstein, a legal scholar at Harvard University, co-authored a book, “Nudge”, in 2008. The book attacked the assumption of rational decision-making in economic models and showed how context could be changed to “nudge” people to make better choices. In 2010 Mr. Thaler advised the British government on the creation of the Behavioural Insights Team, a unit that sought to put their ideas into practice. The wildly successful government unit has since been spun out into a quasi-private company and now advises governments around the world.

“The Nobel In Economics Rewards A Pioneer Of “Nudges” — Richard Thaler becomes one of very few behavioural economists to receive the discipline’s highest honour,” The Economist, October 9, 2017.

Vox also summarized Thaler’s work earlier this week:

Richard Thaler, one of the founders of modern behavioral economics and the winner of the 2017 Nobel Memorial Prize in Economic Sciences, is obsessed with how people make decisions — not just investors or policymakers but everyday consumers and taxpayers. He’s tried to explain why people won’t sell wine they own for more than they paid for it, why people take out big loans even when they have plenty of savings, and how to encourage people to sock away more of their paychecks toward retirement.

“This Headline Is A Nudge To Get You To Read About Nobel Economist Richard Thaler — Okay, it’s not a very good nudge, but his work is really important!” Vox, October 9, 2017.

I confess, I read Nudge and could never quite silence my own biased subtext of resentment over the idea that politicians, think-tankers, captains of industry, and other members of The Illuminati know what’s best for my health, wealth, and happiness, and are deliberately nudging me to carry out their own agendas. I’ve made liberal use of my human right to make dumb mistakes, thank you very much, and prefer to keep it that way. On the other hand, I respect the scholarship that went into theorizing something we all probably realize but try not to admit: that we decide subliminally before we act, and then rationalize what we’ve done after the fact.

Turns out that, like it or not, “The Economy” actually does run on ideas that come down from the top. Next time, we’ll look at some of the most famous economic nudgers of all time.

By the way, there’s an Illuminati website. Watching the greeting video, I think this has got to be a parody in the same league as This is Spinal Tap. If it’s not, then it’s it just plain creepy.

 

 

 

 

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Colorado Court of Appeals: Payments for Vendor Tables at Republican Convention Were Not Political Contributions

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog v. Colorado Republican Committee on Thursday, October 5, 2017.

Administrative Law Judge—Campaign Contributions—Value of Services—Reportable—C.R.S. §§ 1-45-108(1)(a)(I) and -103(6)(b).

An administrative law judge (ALJ) held a hearing and determined that the Colorado Republican Committee (CRC) improperly failed to report three payments for vendor tables at its 2016 Republican Party assembly and convention. The CRC was fined and sanctioned for failing to report contributions.

On appeal, CRC contended that the ALJ erred in determining that the three payments for vendor tables at the convention were reportable contributions under state law and not properly reported by CRC. C.R.S. § 1-45-108(1)(a)(I) requires political committees to report receipt of contributions of $20 or more and to report expenditures and obligations. C.R.S. § 1-45-103(6)(b), which defines “contribution,” applies to all contributions “for which the contributor receives compensation or consideration,” and thus applies to the payments at issue here. Under the plain language of this section, political parties are required to report only that portion of payments for services that exceeds the value of the services rendered. Here, Campaign Integrity Watchdog provided no evidence that the value of the vendor tables was actually less than the $350 CRC charged. Therefore, the ALJ erred in finding that the payments at issue were reportable contributions under state law.

The part of the order imposing a fine and sanctions against CRC for failing to disclose the relevant payments was reversed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/11/2017

On Wednesday, October 11, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Jones v. Goetz

Johnson v. Patton

Profita v. Regents of the University of Colorado

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

Colorado Court of Appeals: Dying Declaration Admissible Regardless of Whether Testimonial or Non-Testimonial

The Colorado Court of Appeals issued its opinion in People v. Cockrell on Thursday, October 5, 2017.

Dying Declarations Statute—Evidence—Confrontation Clause.

The victim was shot 11 times and was found by bystanders, who asked him questions. The victim answered their questions but did not provide the shooter’s name. On the way to the hospital, the victim identified Cockrell as the shooter to an officer who rode in the ambulance. The victim died soon thereafter during surgery. No DNA, fingerprint, or other forensic evidence tied Cockrell to the victim’s murder. The primary evidence against him was the victim’s dying declaration identifying Cockrell as the shooter and a bystander’s statement that he saw a car leaving the area around the same time the victim was found that matched the description of the car Cockrell drove. The trial court denied Cockrell’s motion to suppress the dying declaration and to find C.R.S. § 13-25-119 unconstitutional. Cockrell was found guilty of first degree murder and two crime of violence sentence enhancers.

On appeal, Cockrell contended that C.R.S. § 13-25-119, the dying declaration statute, is unconstitutional on its face because it violates the Confrontation Clause. Dying declarations are an exception to the hearsay rule because of their guarantee of trustworthiness, and precluding their admission would in many cases result in a failure of justice. The court of appeals held that dying declarations are an exception to the Confrontation Clause and the dying declaration statute is constitutional.

Cockrell also contended that the victim’s statement did not satisfy the statutory requirements for admission of dying declarations. The first statutory requirement was satisfied because the parties agreed that the victim believed he was going to die; he had 11 gunshot wounds and death was imminent, and he made statements indicating he feared he was going to die. As to the other three requirements, Cockrell argued that (1) the statements were not voluntary; (2) the statements were made in response to questions calculated to lead the deceased to make the particular statement; and (3) the victim was not of sound mind when he made the statements. However, the record supports the trial court’s finding that (1) the victim’s statements were voluntarily made; (2) the questions asked of the victim were designed to gather facts with no apparent pretense; and (3) although the victim was in a great deal of pain and had trouble breathing, he was conscious and alert and answered questions appropriately, and thus was of sound mind when he identified Cockrell as his shooter.

Lastly, Cockrell contended that there was insufficient evidence to support his first degree murder conviction. Based on the evidence presented, it was rational for the jury to have found Cockrell guilty as charged.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Predicate Offense Must Be Felony at Time of Current Offense for Habitual Offender Designation

The Colorado Court of Appeals issued its opinion in People v. Kadell on Thursday, October 5, 2017.

Habitual Criminal—Sufficiency of Evidence—Prior Felony Conviction—Collateral Attack—Excusable Neglect—Extended Proportionality Review.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.