April 18, 2018

Archives for April 2018

Colorado Supreme Court: Compliance with Departmental Policy Insufficient to Bring Seizure of Vehicle Within Exception to Fourth Amendment Warrant Requirement

The Colorado Supreme Court issued its opinion in People v. Quick on Monday, April 16, 2018.

Inventory Search—Impoundment.

The People brought an interlocutory appeal, as authorized by C.R.S. § 14 16-12-102(2) and C.A.R. 4.1, from a district court order granting Quick’s motion to suppress a gun found during an inventory search of his car. The district court initially denied the motion, but in light of the court of appeals’ opinion in People v. Brown, 2016 COA 150, __ P.3d __, it found that where Quick was merely cited, and not actually arrested, for driving with a suspended license, and where the only justification offered for seizing his car was instead the likelihood that he would continue to drive and thereby endanger public safety, the initial seizure of his car did not fall within the community caretaking exception to the probable cause and warrant requirements of the Fourth Amendment.

The supreme court affirmed the district court’s order. Compliance with a departmental policy or procedure is insufficient in and of itself to bring the seizure of a vehicle within an exception to the Fourth Amendment warrant requirement. Moreover, seizing a vehicle to prevent the driver from continuing to drive with a suspended license does not fall within the specific community caretaking exception.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Seizure of Vehicle Not Justified as Exercise of Police Caretaking Function

The Colorado Supreme Court issued its opinion in People v. Brown on Monday, April 16, 2018.

Inventory Search—Impoundment.

The People petitioned for review of the court of appeals’ judgment reversing Brown’s drug-related conviction on the ground that his motion to suppress should have been granted. See People v. Brown, 2016 COA 150, __ P.3d __. The district court found that the contraband in question was discovered during an inventory search of defendant’s vehicle, the conduct of which was within the officers’ discretion according to the policies and procedures of the Aurora Police Department, even though they had already decided to issue a summons rather than arrest defendant for driving with a suspended license. By contrast, the court of appeals found that in the absence of an arrest, seizing defendant’s vehicle to provoke an inventory of its contents could not be justified as an exercise of the police caretaking function, and in the absence of any other recognized exception to the probable cause and warrant requirements of the Fourth Amendment, violated its prohibition against unreasonable searches and seizures.

The supreme court affirmed the court of appeals’ judgment. The record failed to demonstrate that seizure of defendant’s vehicle was justified as an exercise of the police caretaking function or was otherwise reasonable within the meaning of the Fourth Amendment, regardless of local ordinances or police policies and procedures broad enough to grant the officers discretion to impound the vehicle of a driver merely summoned rather than arrested for driving with a suspended license.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/17/2018

On Tuesday, April 17, 2018, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

United States v. Ramirez-Hernandez

Schoenfeld v. Sides

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

Bills Signed Requiring Commercial Drivers to Receive Training in Human Trafficking Prevention, Modifying Water Court Process for Substitute Water Rights, and More

On Thursday, April 12, 2018, Governor Hickenlooper signed 23 bills into law. To date, he has signed 149 bills and sent one to the Secretary of State without a signature. Some of the bills signed Thursday include a bill allowing a water court process for mitigation measures, a bill requiring commercial drivers to receive training on prevention of human trafficking, a bill authorizing insurers’ agents to access the electronic motor vehicle title database, and more. The bills signed Thursday are summarized here.

  • SB 18-011 – “Concerning Treatment of Students who are Excused by their Parents from Participating in State Assessments,” by Sens. Chris Holbert & Andy Kerr and Reps. Tracy Kraft-Tharp & Paul Lundeen. The bill clarifies procedures for parents who excuse their children from taking state assessments and students whose parents excuse them from testing shall still be allowed to receive rewards designed for students who complete the assessments.
  • SB 18-079 – “Concerning Classifying Sake as a Vinous Liquor for the Purposes of the ‘Colorado Liquor Code,'” by Sen. Lucia Guzman and Rep. Dan Pabon. The bill classifies sake as a vinous liquor (wine) for the purposes of the “Colorado Liquor Code.”
  • SB 18-087 – “Concerning In-state Tuition at Institutions of Higher Education for Certain Foreign Nationals Legally Settled in Colorado,” by Sen. Stephen Fenberg and Reps. Dafna Michaelson Jenet & Faith Winter. The bill contains a legislative declaration about the circumstances facing special immigrants and refugees and the benefit of access to education.
  • SB 18-106 – “Concerning Obsolete Statutory Provisions Related to a Local Government’s Pledging of Sales or Use Tax Revenues to Pay for Revenue Bonds Issued for the Purpose of Financing Capital Improvements,” by Sen. Jack Tate and Rep. Don Thurlow. Current law specifies that a county, city, or incorporated town may include the creation of a sales and use tax capital improvement fund (special fund) when the county, city, or incorporated town seeks voter approval to levy a sales or use tax. The creation of the special fund does not have a purpose for a county, city, or incorporated town post-TABOR because the question of using sales or use tax revenues for financing capital improvements is asked when the county, city, or incorporated town seeks voter approval for the bond issuance. Thus, the language regarding the creation of the fund is unnecessary.
  • SB 18-110 – “Concerning the Repeal of the Requirement that Each State Agency Annually Report the Amount of Federal Money it Received in the Prior Fiscal Year,” by Sen. Jack Tate and Rep. Jeni James Arndt. During the 2017 legislative session, the statutory revision committee put forth House Bill 17-1058, which, in part, repealed a requirement that the state controller submit to the general assembly a report of all federal money received by state agencies during the prior fiscal year. State agencies are still required to submit an annual report to the state controller of all federal moneys received by the state agency in the prior fiscal year for the state controller’s use in preparing the report for the general assembly.The bill repeals the state agency reporting requirement as the state controller is no longer required to prepare a report for the general assembly.
  • SB 18-127 – “Concerning the Repeal of the Department of Revenue’s Requirement to Publish an Historical Explanation of Income Tax Rate Modifications Enacted in the State on Every Income Tax Return Form,” by Sen. Beth Martinez Humenik and Rep. Dan Thurlow. The bill repeals the requirement that the Executive Director of the Department of Revenue publish an historical explanation of income tax rate modifications enacted in the state on every income tax return form.
  • SB 18-129 – “Concerning the Nonsubstantive Reorganization of the Law Exempting from State Sales Tax Certain Drugs and Medical and Therapeutic Devices,” by Sen. Dominick Moreno and Rep. Jeni James Arndt. The bill makes several modifications to the laws exempting certain drugs and medical devices from sales tax.
  • SB 18-136 – “Concerning Fees for Advising Clients About the Selection of an Individual Health Benefit Plan,” by Sen. Tim Neville and Reps. Tracy Kraft-Tharp & Lang Sias. The bill allows an insurance producer or broker advising a client on individual health benefit plans to charge the client a fee if the producer or broker does not receive a commission related to the individual health benefit plan selected by the client and if the producer or broker discloses in writing the fee to the client.
  • SB 18-161 – “Concerning Repeal of the Behavioral Health Transformation Council,” by Sen. Jim Smallwood and Reps. Tracy Kraft-Tharp & Lois Landgraf. The bill repeals the behavioral health transformation council.
  • SB 18-162 – “Concerning Substitute Child Care Providers,” by Sen. Beth Martinez Humenik and Reps. Janet Buckner & James Wilson. The bill creates a license within the Department of Human Services for a substitute placement agency that places or that facilitates or arranges placement of substitute child care providers in licensed child care facilities providing less than 24-hour care.
  • SB 18-170 – “Concerning a Water Court Process by Which an Owner of a Storage Water Right Allowing Water to be Stored in New Reservoir Capacity may Release Water into an Identified Stream Reach in a Manner that Protects the Water Releases while Complying with Mitigation Measures Identified in a Fish and Wildlife Mitigation Plan Approved by the Colorado Water Conservation Board,” by Sen. Jerry Sonnenberg and Reps. Chris Hansen & Hugh McKean. The bill establishes a water court process by which an owner of a water storage right allowing water to be stored in a newly constructed reservoir or an enlarged existing reservoir may comply with the mitigation measures identified in a mitigation plan by contracting with the board.
  • SB 18-172 – “Concerning Testing of Horse Racing Licensees for the Presence of Prohibited Substances,” by Sen. Bob Gardner and Rep. Pete Lee. The bill adds to the responsibilities of the Colorado racing commission the protection of all participants, human and animal, involved in horse racing.
  • SB 18-176 – “Concerning Changes to the Requirements for Meeting Dates for the Board of the Southwestern Water Conservation District,” by Sen. Don Coram and Reps. Barbara McLachlin & Marc Catlin. The bill requires the Board of the Southwestern Water Conservation District to meet once every three months and makes amendments to the terms of the board members and board president.
  • SB 18-182 – “Concerning the Authority to Allocate a Portion of the Source Market Fee to Statutorily Authorized Purse Funds,” by Sens. Don Coram & Lucia Guzman and Reps. Marc Catlin & Jeni James Arndt. Current law requires persons outside of Colorado who accept wagers from residents of Colorado on simulcast horse racing events to be licensed in Colorado and to pay a source market fee into the racing cash fund. The bill authorizes the Director of the Division of Racing Events to allocate a portion of the source market fee to be paid to any horse purse trust fund established pursuant to existing law, if necessary, to maintain a sustainable and competitive purse structure in Colorado.
  • SB 18-183 – “Concerning Authorizing Agents of Insurers to Access the Electronic System that Insurers Access for Owner and Lienholder Information of a Motor Vehicle,” by Sen. Jack Tate and Reps. Jeni James Arndt & Larry Liston. Current law authorizes the creation and maintenance of an electronic system that vehicle towers, insurers, and salvage pools may use to access motor vehicle title records if the vehicle is insured or possessed by those entities. The bill allows an agent of an insurer to use the system in the same circumstances.
  • SB 18-184 – “Concerning a New Permit for the Short-term Extraction of Construction Materials,” by Sen. Don Coram and Reps. Hugh McKean & Daneya Esgar. The bill creates a new class of limited impact construction materials permits for one-time activities that produce construction materials as a by-product and are not intended to be ongoing mining operations and authorizes an application fee of $400 for the permit and an annual fee of $200.
  • HB 18-1017 – “Concerning the Adoption of an Interstate Compact to Allow a Person Authorized to Practice Psychology in a Compact State in Which the Person is not Licensed, and, in Connection Therewith, Making an Appropriation,” by Rep. Dafna Michelson Jenet and Sens. Bon Gardner & Stephen Fenberg. The bill enacts the ‘Psychology Interjurisdictional Compact Act’ allowing psychologists licensed in any compact state to provide telepsychology services to clients in any other compact state, or temporary in-person client services in any compact state not exceeding 30 days in a calendar year.
  • HB 18-1018 – “Concerning a Requirement that Education to Prevent Human Trafficking be Included in the Training to Obtain a Commercial Driver’s License,” by Reps. Terri Carver & Dominique Jackson and Sens. Rachel Zenzinger & John Cooke. The bill requires that the training to obtain a commercial driver’s license to drive a combination vehicle contain education to prevent human trafficking if the training is conducted in a driving school. The department must also publish information about human trafficking for commercial driver’s license holders and trainees.
  • HB 18-1049 – “Concerning the Department of Human Services’ Authority to Continue to Lease Portions of the Grand Junction Regional Center Campus to Third-party Behavioral Health Providers,” by Rep. Dan Thurlow and Sen. Ray Scott. The Department of Human Services currently leases portions of the Grand Junction regional center campus to third-party behavioral health providers. The bill authorizes the Department to continue such leases until June 30, 2020, and each party to such lease may terminate the lease early provided that the terminating party provide the other party with 90 days notice before vacating the property or requiring the property to be vacated.
  • HB 18-1056 – “Concerning the Statewide Standard Health History Form that Members of the Fire and Police Pension Association Complete when Commencing Employment,” by Reps. Kevin Van Winkle & Dave Williams and Sen. John Cooke. Every member of the fire and police pension association (FPPA), at the commencement of employment, is required to complete a health history on a statewide standard health history form. The bill clarifies several aspects of the form.
  • HB 18-1078 – “Concerning Court Programs for Defendants who have Served in the Armed Forces,” by Reps. Lois Landgraf & Tony Exum and Sen. Bob Gardner. Under current law, the chief judge of a judicial district may establish an appropriate program for the treatment of veterans and members of the military. The bill states that, in establishing any such program, the chief judge, in collaboration with the probation department, the district attorney, and the state public defender, shall establish program guidelines and eligibility criteria. The bill requires a court, in determining whether to issue an order to seal criminal records of a petitioner who has successfully completed a veterans treatment program, to consider such factor favorably in making the determination.
  • HB 18-1154 – “Concerning Consumer Protections Relating to a Solicitation to Provide a Copy of a Public Record for a Fee,” by Reps. Edie Hooten & Kevin Van Winkle and Sen. Cheri Jahn. The bill requires a person who solicits a fee for providing a copy of a deed or deed of trust to give a copy of the document that will be used for the solicitation to each county clerk and recorder where the solicitation is to be distributed; not charge a fee of more than 4 times the amount charged by the county clerk and recorder; and include specified disclosures.
  • HB 18-1239 – “Concerning Continuation under the Sunset Law of the Environmental Management System Permit Program, and, in Connection Therewith, Implementing the Recommendations of the Sunset Report by the Department of Regulatory Agencies by Allowing the Program to Repeal,” by Rep. Lois Landgraf and Sen. Ray Scott. The bill implements the recommendations of the sunset review and report on the environmental management system permit program by allowing the program to repeal.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Tenth Circuit: Petitioner Ineligible for Cancellation of Removal After Theft Convictions

The Tenth Circuit Court of Appeals Issued its opinion in Lucio-Rayos v. Sessions on Tuesday, November 14, 2017.

The issue presented in this case was whether petitioner Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (CIMT). If so, it would make him ineligible for cancellation of removal. Lucio-Rayos is a citizen of Mexico who entered the United States without authorization. Although he conceded that he was subject to removal, he sought discretionary relief in the form of cancellation of removal.

Lucio-Rayos first contended that the immigration judge erred in refusing to recuse from his case because the immigration judge’s spouse works with the Denver Immigration and Customs Enforcement office that initiated this removal proceeding. The Tenth Circuit rejected this argument.

In order to prevail on this argument, Lucio-Rayos had to establish that he was deprived of due process and that the deprivation prejudiced him. Lucio-Rayos presented extrajudicial-influence and inherent-bias arguments relying on law that requires a federal judge to recuse in any proceeding in which his impartiality might reasonably be questioned. However, the Immigration and Customs Enforcement office had a plan in place to ensure that the immigration judge’s spouse had no involvement in the case. Further, there is no evidence suggesting that the immigration judge’s spouse played any role in Lucio-Rayos’ removal proceedings. The immigration judge’s spouse was not a party, officer, director, or trustee of a party in this matter.

In addition, Lucio-Rayos has not shown that he was prejudiced by the immigration judge’s refusal to recuse; that is, Lucio-Rayos has not shown that his rights were violated in a manner so as potentially to affect the outcome of the proceedings.

Next, the Tenth Circuit concluded that Lucio-Rayos is ineligible for cancellation of removal. To be eligible for cancellation of removal, Lucio-Rayos had to meet four requirements. The only one at issue was whether Lucio-Rayos’s conviction for theft is a CIMT.

The Tenth Circuit applied the categorical approach by comparing the elements of Lucio-Rayos’s offense to the definition of CIMT, which refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality, and conduct that is inherently wrong, rather than conduct deemed wrong only because of a statutory proscription. The lower court found that a conviction like Lucio-Rayos’s qualifies as a CIMT only if one element of the offense is that the perpetrator intended to deprive the victim permanently of his property. The Tenth Circuit found, however, that not all convictions under the applicable theft provision require proof that the defendant intended to deprive the victim of his property permanently. The applicable code was found to be divisible.

The Tenth Circuit found that the undocumented alien bears the burden of proof to show that his conviction was not a CIMT. The Tenth Circuit held that, because it was unclear from Lucio-Rayos’s record whether he committed a CIMT, he did not prove eligibility for cancellation of removal.

Lastly, Lucio-Rayos contended that if his conviction was a CIMT, he nevertheless met an exception to ineligibility available for petty offenses. However, the Tenth Circuit held that in this situation, the petty offense exception did not prevent an immigrant’s CIMT conviction from disqualifying him from eligibility for discretionary cancellation of removal.

The Tenth Circuit Court of Appeals DENIED Lucio-Rayos’s petition for review and found he was not eligible for cancellation of removal.

Tenth Circuit: Unpublished Opinions, 4/16/2018

On Monday, April 16, 2018, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Thomas

United States v. Viarrial

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

Rules of Civil Procedure, JDF 601, and Form 4 Amended in Rule Changes 2018(05) and 2018(06)

On Thursday, April 12, 2018, the Colorado Supreme Court issued two rule changes. Rule Change 2018(05) amends Form 4, “Petition for Postconviction Relief Pursuant to Crim. P. 35(c),” and Rule Change 2018(06) amends Colorado Rule of Civil Procedure 16.1, “Simplified Procedure for Civil Actions,” and JDF 601, “District Court Civil Case Cover Sheet for Initial Pleading of Complaint, Counterclaim, Cross-Claim, or Third-Party Complaint and Jury Demand.”

The changes to C.R.C.P. 16.1 are extensive, and contain multiple changes to the first several subsections, including “Purpose of Simplified Procedure,” “Actions Subject to Simplified Procedure,” “Civil Cover Sheet,” “Motion for Exclusion from Simplified Procedure,” and more. There is also new Comment to the Rule that explains the reasoning for the changes.

For the full text of the 2018 rule changes, click here. For all of the court’s adopted and proposed rule changes, click here.

Colorado Supreme Court: Announcement Sheet, 4/16/2018

On Monday, April 16, 2018, the Colorado Supreme Court issued two published opinions.

People v. Brown

People v. Quick

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: Defendants Found Liable for ATV Protest Ride on Recapture Canyon in Utah

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wells on Monday, October 23, 2017.

In 2007, the Bureau of Land Management (BLM) closed part of Recapture Canyon in Utah to all-terrain vehicles (ATVs) due to potential damage to the soil and archaeological sites. Although this was intended to be temporary, the order was still in place in 2014. Upset at the delay in reopening, County Commissioner Lyman organized a protest ride on ATVs into the closed portion of the Canyon. Wells, who ran a website that reported on local news, assisted and interviewed Lyman, while also encouraging others to the protest. Despite warnings from the BLM that criminal and civil penalties would be enforced against anyone riding ATVs in the closed portion of the Canyon, the ride took place in May of 2014. There is undisputed evidence that both Lyman and Wells rode ATVs in the protest.

At trial, Lyman and Wells were found guilty for riding ATVs on the closed lands and with conspiracy to do the same. On appeal, Defendants seek a new trial, arguing that a reasonable observer would have questioned the district judge’s impartiality. Although the judge did ultimately recuse before sentencing, Defendants contend he should have recused earlier. Further, they challenge the denial of their motions to dismiss the criminal information, the denial of a new trial, and their restitution order. Lyman separately argues that he was deprived of effective assistance of counsel. The Tenth Circuit addressed each claim in turn.

The first argument was that the district court judge, Judge Shelby, should have recused earlier in the trial. Judge Shelby is close friends with the legal director for the Southern Utah Wilderness Alliance (SUWA), an organization that was opposed to the protest ride. The ultimate recusal was based largely on a letter to the judge signed by SUWA and other conservative groups that expressed views adverse to Defendants, as well as evidence that showed SUWA had extensive pretrial involvement with the case in passing information to BLM officials and the United States Attorney’s Office.

Defendants argued for a new trial, contending that Judge Shelby ought to have recused from participation in the trial because a reasonable observer would have questioned his impartiality, as Judge Shelby should have been alerted to SUWA’s involvement by their legal director’s presence at trial and by a voir dire question asking potential jurors if close friends or family members were in SUWA.

The Tenth Circuit found that the argument for a new trial failed on the merits. The Circuit reviewed Judge Shelby’s decision not to recuse early in the trial for an abuse of discretion and found that the decision not to recuse could not be characterized as arbitrary or manifestly unreasonable. The Tenth Circuit concluded that recusal was not required where SUWA was not a party to the criminal prosecution, and, further, there was no evidence that Judge Shelby should have known about SUWA’s pretrial involvement. As Judge Shelby did not err in failing to recuse, Defendant were not entitled to a new trial.

The Defendants next challenged the denial of their motions to dismiss. Wells claimed that he could not be prosecuted for his activities because they consisted of protected speech under the First Amendment. To determine whether Wells’ conduct was protected, the Tenth Circuit inquired as to whether there was a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for the hostility toward the defendant because he exercised his specific legal rights.

Wells argued that the prosecution’s hostility became evident when showings were made that SUWA had pushed for prosecution of the Canyon riders and that they regularly passed Wells’ social media posting on to prosecutors. However, the Tenth Circuit found that Wells did not present any evidence of prosecutorial hostility toward Wells’ exercise of his First Amendment rights. SUWA was simply interest in protecting the Canyon, not in limiting Wells’ First Amendment rights. The Circuit held that Wells failed to establish the requisite vindictiveness from the prosecution.

Lyman argued that the district court erred in denying his motion to dismiss when the government failed to allege interdependence, a required element of conspiracy. The Circuit applied a two-part test to determine the sufficiency of an indictment: First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause. The Tenth Circuit found that Lyman’s argument implicated only the first prong of this test. Further, Lyman and Wells worked together for their mutual benefit in the context of their conspiracy to ride ATVs on the Canyon in protest. The Tenth Circuit found that Lyman’s motion to dismiss argument failed.

Next, Wells argued that the government failed to introduce sufficient evidence that he was acting as a co-conspirator rather than a journalist. The Tenth Circuit inquired whether the evidence would establish each element of the crime of conspiracy, to wit: (1) an agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the conspiracy’s object, and (5) proof that the defendant willfully entered the conspiracy. The Circuit found that the evidence presented by the government was sufficient for a jury to find beyond a reasonable doubt that Wells acted not merely as a journalist reporting on issues, but as a co-conspirator who agreed with Lyman to ride on the closed lands. More specifically, Wells reposted Lyman’s advertisements of the protest ride while adding flourishes of his own that suggest active support for, and agreement with, the planned ride.

Defendants next contested the district court’s denial of their motion for a new trial based on the post-trial discovery of a map which allegedly showed a right-of-way that the government failed to disclose before trial. Defendants argued that (1) the map would have permitted them to establish the existence of a right-of-way to negate the legality of the closure order on the Canyon, and (2) they should have been able to present the map as evidence relevant to their good-faith defense, since violation of the laws at hand require that the defendant act knowingly and willfully. The government argued that no violation occurred because the map in question was not material.

The Circuit found that the materiality of the map was at issue in this appeal. Materiality requires a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. The Tenth Circuit concluded that the map could not have been material for purposes of the Defendants’ good-faith defense, and, as the district court pointed out, the map could not be relevant because the Defendants were unaware of the map at the time of the ATV ride. A mere suspicion that a right-of-way existed is not an honest belief that the road was not legally closed to ATV use. The Tenth Circuit found that the Defendants could not establish that the map would have been material to their good-faith defense. Further, the map failed to create a reasonable probability of a different outcome so as to cast doubt on Defendants’ convictions. The Circuit held that the district court properly denied Defendants’ motion for a new trial.

Wells next challenged the restitution order holding him jointly and severally responsible with Lyman for $48,000. Wells challenged that it included: (1) harms that were not recoverable as restitution because they were not caused by the conspiracy and its underlying conduct, and (2) amounts that were not legally cognizable as actual loss or supported by the evidence. Lyman made a similar argument. Under the Mandatory Victims Restitutions Act (MVRA), courts are required to order a defendant to pay restitution to a victim of the offense. No party disputed that the United States constituted a victim under the MVRA; however, the question was for which alleged harms could the United States properly recover restitution. The government was required to show both that the defendant’s conduct was the ‘but-for’ cause of the harm and that the defendant proximately caused the harm.

The government’s principal contention was that the conspiracy and its underlying conduct was the but-for cause of the motorized damage to archeological, riparian, and upland soil resources in the closed area. The Tenth Circuit concluded that the government presented ample evidence to find by a preponderance of the evidence that the government’s contention was correct. The district court did not err in ruling that Defendants were responsible for paying restitution to the United States for damages stemming directly and proximately from Defendants’ unlawful conspiracy to conduct a protest ride.

Next, Defendants challenged three aspects of the total amount of restitution ordered: (1) that the amount spent assessing the damage caused by the ATV ride was disallowed, speculative archeological expenses; (2) that the assessment costs were not incurred during participation in the investigation or prosecution of the offense; and (3) that at least some of the claimed amount was supported by estimates, not concrete figures. The Tenth Circuit first found that the government’s requested damages did not constitute speculative, archaeological damages. The archaeological value is an effort to go back in time before the violation occurred and estimate what it would have cost the United States to engage in a full-blown archaeological dig at the site, notwithstanding the fact that the United States had no plans to engage in any such effort. The Circuit held that the assessment that took place was detailed and anything but hypothetical.

Second, the MVRA provides that a victim must be reimbursed for expenses incurred during participation in the investigation or prosecution of the defense. The Tenth Circuit rejected Defendants’ assertion that the expenses were not incurred during the government’s participation in the investigation or prosecution of the offense, as the court has specifically recognized that the government’s investigatory costs can constitute actual losses subject to restitution.

Third, the Circuit concluded that the third argument was based on a mistaken view of the record. The government did not admit that its damages were not hard numbers. In context, the prosecutor was attempting to explain why restitution figures from an earlier case could not be considered as a basis for comparison in the present case. The Circuit found Defendants’ final argument misguided and spurious. The district court’s restitution award was upheld.

The last argument by Lyman was ineffective assistance of counsel. The Tenth Circuit found that ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed. As Lyman made no attempt to argue that his claim should be addressed on direct appeal, the Tenth Circuit saw no reason to reach its merits.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s judgment and restitution order.

Tenth Circuit: Unpublished Opinions, 4/13/2018

On Friday, April 13, 2018, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

Mohn v. Zinke

United States v. Riforgiate

United States v. Mike

United States v. Serrano

United States v. Callwood

United States v. Santistevan

United States v. Evans

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

Colorado Court of Appeals: Judge Committed Reversable Error by Not Recusing Where Judge Was Previously GAL in Different Case Involving Mother

The Colorado Court of Appeals issued its opinion in People in Interest of C.Y. and J.O. on Thursday, April 5, 2018.

Dependency and Neglect—Recusal—Disqualification.

In this dependency and neglect proceeding, during the termination hearing, the judge realized she had served as a guardian ad litem (GAL) on a different case involving mother’s oldest child. The judge declined to recuse herself from the case over mother’s objection and terminated mother’s parental rights.

On appeal, mother contended that the judge erred by not recusing herself from the termination hearing based on her having served as the GAL of mother’s older child in 2005. The Code of Judicial Conduct requires judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned. Here, both the GAL and the Department of Human Services discussed the 2005 case and urged the court to rely on it when ruling on the termination motion, which the court did. Under these circumstances, the judge created the appearance of impropriety by presiding over the case and abused her discretion by not recusing herself.

The judgment was reversed and the case was remanded for a new termination hearing before a different judicial officer.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Excess Insurer Must Step Into Shoes of Insured and Plead Primary Bad Faith

The Colorado Court of Appeals issued its opinion in Preferred Professional Insurance Co. v. The Doctors Co. on Thursday, April 5, 2018.

Medical Malpractice—Primary Insurance Policy—Excess Insurance Policy—Equitable Subrogation —Bad Faith.

A medical malpractice suit was filed against Dr. Singh and other parties. The Doctors Company (TDC), the primary insurer, defended Dr. Singh in the suit as required by its primary liability policy. Preferred Professional Insurance Company’s (PPIC) insurance policy was an “excess policy,” which would cover any losses that exceeded TDC’s $1 million coverage up to an additional $1 million. As an excess insurer, PPIC did not have any duty to defend Dr. Singh in the suit. The plaintiff in the medical malpractice suit offered to settle the case with Dr. Singh for $1 million, the amount of TDC’s policy limits. Dr. Singh conveyed his desire to accept the settlement offer to both insurers, but TDC declined to settle the case. PPIC told Dr. Singh he should accept, and it paid the $1 million settlement. PPIC then filed suit against TDC for equitable subrogation to recover the amount paid. The district court granted summary judgment in PPIC’s favor without addressing TDC’s argument that PPIC was required to prove that TDC refused to settle in bad faith.

On appeal, TDC contended that the district court erred as a matter of law because an equitable subrogation claim brought by an excess insurer against the primary insurer to recover the amount paid in settlement can only be derivative of the insured’s rights. Thus, PPIC’s refusal to plead and present evidence that TDC acted in bad faith in declining to settle required dismissal of PPIC’s claim. An excess insurer seeking recovery under equitable subrogation for a primary insurer’s failure to settle a case against their mutual insured “steps in the shoes of the insured” and must plead and prove the primary insurer’s bad faith. Here, without an assertion that TDC acted in bad faith, PPIC’s equitable subrogation claim is not legally viable.

The order granting summary judgment for PPIC was reversed and the case was remanded for entry of judgment of dismissal in TDC’s favor.

Summary provided courtesy of Colorado Lawyer.