December 11, 2017

Archives for October 2017

Colorado Supreme Court: Failure to Pay Funds to Third Party Constituted Knowing Conversion by Attorney

The Colorado Supreme Court issued its opinion in In the Matter of Kleinsmith on Monday, October 30, 2017.

Colorado Rules of Professional Conduct—Attorney Discipline—Conversion—Due Process—Equal Protection.

This attorney disciplinary proceeding required the supreme court to determine whether an attorney commits knowing conversion, in violation of Colorado Rules of Professional Conduct (Rules) 1.15A and 8.4(c), when he bills a client for services performed by a third party and then uses for his own purposes the client funds he received that were intended to pay for the third party’s services. This proceeding further required the court to determine whether the Presiding Disciplinary Judge’s reading of the Rules violated the attorney’s rights to due process and equal protection. The court concluded that in the circumstances presented here, the attorney’s actions constituted knowing conversion in violation of the Rules and that the Presiding Disciplinary Judge’s construction of the Rules to reach the same result did not violate any of the attorney’s constitutional rights. Accordingly, the court affirmed the orders of the Presiding Disciplinary Judge and the hearing board, including the order disbarring the attorney from the practice of law.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Defendant Not In Custody at Time of Interview so Suppression Order Reversed

The Colorado Supreme Court issued its opinion in People v. Sampson on Monday, October 30, 2017.

Miranda Warnings.

In this interlocutory appeal, the Colorado Supreme Court concluded that a conversation between defendant and a law enforcement officer that took place in a hospital did not constitute custody for Miranda purposes. Under the totality of the circumstances, the court concluded that a reasonable person in defendant’s position would not have believed that his freedom of action had been curtailed to a degree associated with a formal arrest. Assuming without deciding that giving Miranda warnings can be considered in determining whether a suspect is in custody, the court concluded that defendant was not in custody during any part of his conversation with the law enforcement officer. Therefore, the court reversed the trial court’s suppression order.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/30/2017

On Monday, October 30, 2017, the Tenth Circuit Court of Appeals issued four published opinions and no unpublished opinion.

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

Colorado Supreme Court: Announcement Sheet, 10/30/2017

On Monday, October 30, 2017, the Colorado Supreme Court issued two published opinions.

People v. Sampson

In the Matter of Philip Kleinsmith

Summaries of these cases are 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: Collection of Resource Data Considered Protected Speech Under the First Amendment

The Tenth Circuit Court of Appeals issued its opinion in Western Watersheds Project v. Michael on Thursday, September 7, 2017.

The State of Wyoming has enacted a pair of statutes imposing civil and criminal liability on individuals who enter open land for the purpose of collecting resource data without permission from the owner. “Resource data” was defined as data relating to land or land use. And the term “collect” was defined as requiring two elements: (1) taking a sample of material or a photograph, or otherwise preserving information in any form that is (2) submitted or intended to be submitted to any agency of the state or federal government. Information obtained in violation of these provisions could not be used in any proceeding other than an action under the statutes themselves. The statutes also required government agencies to expunge data collected in violation of their provisions and forbade the agencies from considering such data in determining any agency action.

The Tenth Circuit Court of Appeals concluded that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. The statutes at issue target the creation of speech by imposing heightened penalties on those who collect resource data.

Plaintiffs in this case are advocacy organizations, arguing that the statutes violated Free Speech and Petition Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, and they were preempted by federal law. After the district court’s holding that Plaintiffs have stated claims for free speech, petition, and equal protection, Wyoming amended the two statutes, although the statutes continue to impose heightened criminal punishment and civil liability. The amendments penalize any individual who without authorization: (1) enters private land for the purpose of resource data; (2) enters private land and collects resource data; or (3) crosses private land to access adjacent or proximate land where he collects resource data. Under the current version of the statutes, there is no requirement that resource data be submitted to, or intended to be submitted, to a government agency. Instead, the term “collect” now means: (1) to take a sample of material or acquire, gather, photograph or otherwise preserve information in any form; and (2) to record a legal description or geographical coordinates of the location of the collection. The district court concluded that the revised version of the statutes did not implicate protected speech, Plaintiffs appealed to the Tenth Circuit.

The Tenth Circuit found that Wyoming already prohibits trespass, thus the effect of the challenged provisions is to increase a pre-existing penalty for trespassing if an individual collects resource data from public lands. To determine if such provisions are subject to scrutiny under the First Amendment, the question is not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech.

The Circuit concluded that the Plaintiffs’ collection of resource data constitutes the protected creation of speech, as the Supreme Court has explained that the creation and dissemination of information are speech within the meaning of the First Amendment; however, the court did not discuss the level of scrutiny to be applied, as the district court did not conduct an analysis on this matter and, as a general rule, the court will not consider an issue not passed upon below.

The Tenth Circuit Court of Appeals REVERSED the district court’s conclusion that the statutes are not entitled to First Amendment protection and REMANDED for further proceedings consistent with this opinion.

Tenth Circuit: Unpublished Opinions, 10/27/2017

On Friday, October 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Williams v. RGA Home Health Services, Inc.

Mohammed v. Albuquerque Police Department

Watts v. Berryhill

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

Colorado Court of Appeals: Trial Court Must Make Inquiry Into Whether Indian Child Welfare Act Applies in Dependency and Neglect Proceeding

The Colorado Court of Appeals issued its opinion in People in Interest of C.A. on Thursday, October 19, 2017.

Dependency and Neglect—Termination of Parental Rights—Indian Child Welfare Act Inquiry Provisions.

The Montrose Department of Health and Human Services (Department) initiated a dependency and neglect petition on behalf of C.A. At the initial hearing, the trial court asked the parties generally if the child was a Native American and if the child had any Native American heritage. Father said he did not, and mother offered no response. Father and mother were not represented by counsel at this time. The Department ultimately moved to terminate mother’s and father’s parental rights. The Department’s motion did not state the efforts the Department made to determine if C.A. is an Indian child and the trial court did not inquire on the record whether the child is an Indian child. Following a contested hearing, the trial court terminated parental rights and determined that the child was not subject to the Indian Child Welfare Act (ICWA).

On appeal, mother contended that the trial court did not comply with the ICWA’s inquiry provisions. The Colorado Court of Appeals concluded that when a trial court inquires at an initial temporary custody hearing at the commencement of a dependency and neglect proceeding whether there is a reason to know that a child is an Indian child, it must make another inquiry when termination is sought, at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Because the record did not show that the trial court made the proper inquiry at the termination proceeding, the case was remanded for the limited purpose of making the ICWA inquiry. The trial court was further directed to make appropriate findings and proceed accordingly with any actions necessary to comply with ICWA. In addition, court of appeals gave the parties detailed directions to take further actions, based on the trial court’s determination, within a specified timeframe.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Hunting and Fishing Club, Not Individual Members, is True Landowner and Bears Tax Burden

The Colorado Court of Appeals issue its opinion in HDH Partnership v. Hinsdale County Board of Equalization on Thursday, October 19, 2017.

Taxation of Hunting and Fishing Memberships—County Assessment—Real Property Taxes.

Owners of fishing and hunting memberships (petitioners) were taxed on the parcels of real estate allocated to them in their membership agreements. The parcels are part of a larger tract of land used as a hunting and fishing club (club). Membership in the club is granted to those who hold a deed to one of the parcels that collectively comprise the club grounds. Members cannot make improvements on their parcels or exclude other club members. The club retains control over the grounds and grants all members equal access, regardless of the parcel to which they hold title. A member’s right to access the grounds can be revoked if the member owes money or violates club rules.

Petitioners initiated this action after they disagreed with the county’s assessment of their parcels. The Hinsdale County Board of Equalization (BOE) affirmed the assessor’s valuation. Petitioners appealed to the Board of Assessment Appeals (BAA), which affirmed the BOE’s decision.

On appeal, petitioners argued that the law permits the court to look beyond the title to the substance of the parties’ rights when determining ownership. The Colorado Court of Appeals concluded that the club was the true property owner because it enjoyed the most significant incidents of ownership. The members effectively had a license to use club grounds, even though they held bare legal title to the parcels. Therefore it was the club, and not the members, that had to bear the real property tax burden. Further, the BAA erred in affirming the assessor’s valuation because it was based on the personal property value of petitioners’ licenses to use club grounds rather than the value of the parcels as real property.

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

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 106 Time Limit for Filing is Constitutional As Applied

The Colorado Court of Appeals issued its opinion in Adams v. Sagee on Thursday, October 19, 2017.

Citizen Right of Initiative—Filing Deadline.

Plaintiffs petitioned to present a ballot initiative to the residents of Sheridan. Sheridan’s City Clerk, Sagee, rejected some of the signatures plaintiffs had collected, leaving them short of the number required for the initiative to be considered. Plaintiffs contested the decision, and the City Clerk upheld it after a protest hearing. Plaintiffs filed a complaint in district court 35 days later pursuant to C.R.S. § 31-11-110(3). The district court dismissed the case for lack of subject matter jurisdiction because plaintiffs failed to file within the C.R.C.P. 106 28-day time limit.

On appeal, plaintiffs conceded that the 28-day jurisdictional bar applied and they filed 35 days after the relevant final decision. They argued that strict application of the time limit to them as pro se parties deprived them of their constitutional right of initiative. The Colorado Court of Appeals construed plaintiffs’ argument to be an as-applied challenge to the constitutionality of the statutory time bar. The court found plaintiffs pro se status irrelevant; pro se parties must comply with procedural rules to the same extent as parties represented by attorneys. The court concluded that applying C.R.C.P. 106(b)’s jurisdictional deadline to plaintiffs’ Rule 106(a)(4) petition does not deprive them of or unduly burden their constitutional right of initiative.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 10/26/2017

On Thursday, October 26, 2017, the Colorado Court of Appeals issued no published opinion and 17 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, 10/26/2017

On Thursday, October 26, 2017, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Gadd v. Campbell

Ellis v. Oliver

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

Whatever Happened to Working For a Living?

“Politically, every transformation has begun
with a repudiation of the certainties of the previous age.”

– Economist Guy Standing

Guy Standing is a research professor at the University of London and a prolific author and world-traveling speaker. In his book, The Corruption of Capitalism (2016), he analyzes how the concept of working for a living has fared under the two economic models we looked at last time (the Fabian Society’s social democratic model and the Mt. Pelerin Society’s free market). I can add little to his analysis by rephrasing it, therefore I’ll quote excerpts at length in this post and the next.

The period from the nineteenth century to the 1970’s saw what Karl Polanyi, in his famous 1944 book, dubbed “The Great Transformation” — the construction of national market economies.

[T]he model that underpinned the Great Transformation made “labour,” not all forms of work. Socialists, communists and social democrats all subscribed to “labourism.” Those in full-time jobs obtained rising real wages, a growing array of ‘contributory’ non-wage benefits, and entitlements to social security for themselves and their family. Those who did not fit this model were left behind.

The essence of labourism was that labour rights — more correctly , entitlements — should be provided to those (mostly men) who performed labour and to their spouses and children. As workers previously had little security, this was a progressive step.

Labourism promoted the view that the more labour people did, the more privileged they should be, and the less they did the less privileged they should be. The ultimate fetishism was Lenin’s dictate, enshrined in the Soviet constitution, that anybody who did not labour should not eat.

The labourist model frayed in the 1980’s, as labour markets became more flexible and increasing numbers of people moved from job to job and in and out of employment.

Labour and social democratic parties everywhere became ‘reactionary’ — reacting to events rather than forging the future — and regressive, allowing or even fostering inequality.

Around 1980 saw the beginnings of a Global Transformation — the construction of a global market system. As with the Great Transformation, the initial phase may be called ‘dis-embedded’ because the emerging economic system rendered old forms of regulation, social protection and redistribution obsolete or ineffectual.

Politically, every transformation has begun with a repudiation of the certainties of the previous age. This time the attack was on labour-based security, previously the objective of governments or both left and right. Now it was seen as an impediment to growth. Once again, policy changes were dominated by financial capital. Intellectual justification came from the so-called ‘Chicago school’ of law and economics at the University of Chicago, whose leading lights went on to receive Nobel Prizes. Their agenda, honed in the Mont Pelerin Society set up by Friedrich Hayek and thirty-eight like-minded intellectuals in 1947, evolved into what is now called neo-liberalism.

This meant the liberalization of markets, the commodification and privatization of everything that could be commodified and privatized and the systematic dismantling of all institutions of social solidarity that protected people from ‘market forces.’ Regulations were justifiable only if they promised economic growth; if not, they had to go.

As a consequence of these developments, ‘in-work poverty’ has rocketed. In some OECD[1] countries, including Britain, the USA, Spain and Poland, a majority of those in poverty live in households where at least one person has a job. The mantra that ‘work is the best route out of poverty’ is simply false.

I.e., according to Prof Standing, historical and contemporary adherence to the Fabian and Mt. Pelerin ideals has skewed and will continue to skew the notion of working for a living in ways that are unsustainable in current economic reality.

Ironically, Lenin’s dictum that “If any man does not work, neither let him eat” was first articulated two thousand years ago by none other than St. Paul. 2 Thessalonians 3:10. Thus the idea of “working for a living” has long persisted as a cornerstone belief in communist, socialist, and capitalist economic theory, giving it nearly universal sacred status. To question this ideal is truly to trample on hallowed ground.

More next time.

[1] The Organization for Economic Cooperation and Development has 34 mainly industrialized countries as members.

 

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.