April 19, 2014

Tenth Circuit: District Court Does Not Err by Referring to Sentencing Guidelines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Grigsby on Tuesday, April 15, 2014.

Defendant Grigsby pled guilty to eight counts of sexual exploitation of a nine-year-old child for the purpose of producing visual depictions, one count of possessing with intent to view child pornography, and one count of being a felon in possession of a firearm, and was sentenced to 260 years in prison. He appealed his 260-year sentence imposed pursuant to the child pornography production guideline, U.S.S.G. § 2G2.1. Defendant contended that the guideline is “defective” because it routinely generates offense levels that result in a recommended guideline sentence in excess of the statutory maximum, and fails to distinguish between levels of culpability by establishing enhancements for conduct present in most cases and thus undeserving of punishment beyond the core offense.

Based on a total offense level of 43 and a criminal history category of II, Defendant’s initial guideline imprisonment range under the 2012 version of the Guidelines was life. But because the statutory maximum sentence of 260 years was less than life, U.S.S.G. § 5G1.2(b) established the former term as the recommended guideline sentence. Following that recommendation, the district court sentenced Defendant to 260 years imprisonment. In deciding Defendant’s sentence was sufficient but not greater than necessary to meet the sentencing factors identified in § 3553(a)(2), the court referred to the emotional damage Defendant caused his victim, the antisocial behavior Defendant had engaged in over the course of his life, and the public’s need for protection from Defendant.

A district court does not err by deferring to the Guidelines where the sentence imposed is justified in light of the factors set forth in 18 U.S.C. § 3553(a). The Tenth Circuit affirmed Defendant’s sentence.

Tenth Circuit: Unpublished Opinions, 4/17/2014

On Thursday, April 17, 2014, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

May v. State of Kansas

Case summaries are not provided for unpublished opinions.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

Colorado Court of Appeals: Announcement Sheet, 4/17/2014

On Thursday, April 17, 2014, the Colorado Court of Appeals issued no published opinions and 32 unpublished opinions.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, 4/16/2014

On Wednesday, April 16, 2014, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Ortiz

Wilson v. Prior

Dopp v. Jones

United States v. Knittel

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

Tenth Circuit: Avoidance of Transfer to Bank Would Restore Bank’s Lien on Estate as Fully Secured Creditor

On Tuesday, April 15, 2014, the Tenth Circuit Court of Appeals issued its opinion in C.W. Mining Co. v. Bank of Utah.

In this bankruptcy matter, the Chapter 7 Trustee filed a complaint with the bankruptcy court seeking to recover a post-petition transfer to the Bank of Utah. C.W. Mining had deposited $362,000 with the bank in exchange for a certificate of deposit. C.W. Mining then was subject to an involuntary Chapter 11 proceeding, which was converted to a Chapter 7 proceeding. The bank then liquidated the certificate of deposit, which had a value of $383,099. The bank applied the proceeds to the balance owing on two of three promissory notes executed by C.W. Mining in favor of the Bank in 2005, 2006, and 2007. Although the bank knew of the bankruptcy proceeding, it did not inform the trustee, who learned of the transfer when the bank sold its rights on the third promissory note to a third-party seller and the seller sought recovery from the estate. The trustee commenced an adversary proceeding to recover $383,099 from the bank and the parties filed cross-motions for summary judgment.

The bankruptcy court awarded summary judgment to the bank, reasoning that avoidance would be pointless because a transfer to a fully secured creditor cannot be avoided under 11 U.S.C. § 549 without also reviving the secured creditor’s lien. The trustee failed to allege any injury from the bank’s transfer.

The trustee appealed to the Bankruptcy Appellate Panel, which affirmed the bankruptcy court’s judgment. He appealed again to the Tenth Circuit, but the Tenth Circuit affirmed the BAP, finding that the bankruptcy court’s decision was thorough, well-reasoned, and correct.

Tenth Circuit: Fourth Amendment Does Not Require Abandonment of Common Sense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Romero on Tuesday, April 15, 2014.

Defendant Romero was convicted by a jury of assaulting and killing Naayaitch Friday. He appealed the district court’s refusal to suppress evidence found after searches of the car he drove and his bedroom, claiming that the warrant to search the car was based on an affidavit lacking a substantial basis for probable cause, and that his stepfather did not have authority to consent to the search of his bedroom.

The Tenth Circuit noted that the supporting affidavit for the search of the car contained ample reason to believe a search would uncover evidence, stating “[t]he Fourth Amendment does not require the abandonment of common sense. The officers would have been derelict in their duties had they not sought to search the [car].” The Tenth Circuit also affirmed the trial court’s allowance of evidence recovered from the search of Defendant’s bedroom, finding that under Tenth Circuit precedent, when a child lives with his or her parent, there is a presumption that the parent retains control for most purposes over the property. Since Defendant lived with his parents and there was nothing to rebut the presumption of parental control of the property, his stepfather’s consent to the search of his bedroom was sufficient.

The judgment of the trial court was affirmed.

Tenth Circuit: Unpublished Opinions, 4/15/2014

On Tuesday, April 15, 2014, the Tenth Circuit Court of Appeals issued four published opinions and two unpublished opinions.

Fuentes-Chavarria v. Holder

Williams v. Weber County

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

Colorado Court of Appeals: Attorney Who Started Own Practice Not Fulfilling Obligation of Seeking Employment for Unemployment Purposes

The Colorado Court of Appeals issued its opinion in Hoskins v. Industrial Claim Appeals Office on Thursday, April 10, 2014.

Unemployment Compensation Benefits—Actively Seeking Work.

Claimant was laid off from his job as an associate attorney in November 2012, at which point he decided to start his own practice. A deputy in the division of employment issued a decision finding that claimant was ineligible toreceive unemployment compensation benefitsfor the week ending December 1, 2012 and the entire period from December 15, 2012 through July 13, 2013, because he failed to supply the required listing of job contacts. A hearing officer affirmed the deputy’s decision, finding that claimant had focused his efforts on developing his own business and thus had not made a “reasonable and diligent effort to actively seek suitable work during the periods at issue.” The Industrial Claim Appeals Office (Panel) upheld the hearing officer’s judgment.

On appeal, claimant argued it was error to find that his efforts to establish his own legal practice did not fulfill the requirement that he actively seek work. Under CRS § 8-73-107(1)(c)(I), a claimant is eligible to receive unemployment compensation benefits for a particular week only if he or she is able to work and is available for all work deemed suitable. In addition, a claimant must be “actively seeking work.” The regulations clarify that a claimant must make “a systematic and sustained effort to find work.” A claimant must contact a certain number of employers each week and provide a written record of such contacts.

Those who are self-employed or sole proprietors are excluded from the definition of “employment” under the Colorado Employment Security Act (Act). The hearing officer found, and the Panel agreed, that claimant’s efforts to open his own law firm did not fulfill the statutory requirement to actively seek work. The Court of Appeals agreed that this comported with the plain language of the Act. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Juvenile Court Lacks Jurisdiction When Juvenile Turns 18

The Colorado Court of Appeals issued its opinion in In the Interest of M.C.S. on Thursday, April 10, 2014.

Dependency and Neglect—Subject Matter Jurisdiction.

The Jefferson County Division of Children, Youth, and Families (Division) filed a dependency and neglect petition concerning M.C.S. after it received a report that he was discharged from a teen shelter for possessing a pellet gun. M.C.S., who was only four months away from his 18th birthday, did not want to return home and his father did not want him to return home. Father appeared at the advisement hearing, entered a general denial, and requested a jury trial. Father’s attorney was not available during the ninety-day statutory period prescribed for adjudications, so the court set the case for a jury trial after M.C.S. turned 18.

The Division, joined by M.C.S.’s guardian ad litem, moved for summary judgment. Father responded by denying that he had refused to pick up M.C.S. from the shelter, that he was afraid of M.C.S., or that M.C.S. was beyond his control. He also moved to dismiss because M.C.S. would not be adjudicated before he turned 18 and therefore the juvenile court lacked jurisdiction.

The juvenile court found its jurisdiction terminated when M.C.S. turned 18 without having been adjudicated dependent and neglected, and therefore granted father’s motion to dismiss. The Division appealed. The Court of Appeals affirmed.

The Colorado Children’s Code confers exclusive original jurisdiction in the juvenile court over proceedings “[c]oncerning any child who is neglected or dependent” and the term “child” means “a person under eighteen years of age.” A juvenile court’s subject matter jurisdiction is based on the allegations of a child being dependent or neglected.

The Division asserted that once subject matter jurisdiction vested in the juvenile court through the filing of the petition, it could not be divested after M.C.S.’s 18th birthday. The Court agreed that the petition vested the juvenile court with subject matter jurisdiction at the time it was filed, but that jurisdiction was limited. It only authorized the court to enter temporary orders preceding the adjudication. Because the court did not adjudicate M.C.S. before his 18th birthday, it lost jurisdiction to do so. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Sovereign Immunity Not Waived by Negligent Supervision

The Colorado Court of Appeals issued its opinion in Robinson v. Ignacio School District, 11JT on Thursday, April 14, 2014.

Colorado Governmental Immunity Act (CGIA)—Operation of a Motor Vehicle Waiver—Injuries—Negligent Supervision.

Plaintiff Christie Robinson, individually and as parent and next of friend of her son, C.R., sued defendant, Ignacio School District, 11JT, for injuries C.R. sustained on a school bus. The district moved to dismiss the case for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). The trial court partially denied the motion. Robinson’s individual claim and respondeat superior claim for the bus driver’s alleged willful and wanton negligence were dismissed, but Robinson’s negligence claim was allowed to stand.

On appeal, the district contended that the trial court erred in applying the “operation of a motor vehicle” waiver of governmental immunity to a claim for injuries resulting from a school bus driver’s alleged failure to supervise students on a school bus. However, “operation of a motor vehicle” does not extend to a bus driver’s failure to supervise passengers on a bus, because supervision does not require a physical manifestation of operation of a motor vehicle. Negligent supervision does not implicate operation of a motor vehicle, so the district did not waive its sovereign immunity under CRS § 24-10-106(1)(a). Thus, the trial court erred in denying the district’s motion to dismiss for lack of subject matter jurisdiction. The judgment was reversed in part and the case was remanded to the district court to dismiss the complaint.

 Summary and full case available here.

Colorado Court of Appeals: Plaintiff Who Requested Audio Recordings of Trial Proceedings Should Not Have Been Charged for Written Transcript

The Colorado Court of Appeals issued its opinion in Marymee v. Executive Director of Colorado Department of Corrections on Monday, April 14, 2014.

Unauthorized Absence From Employment—In Forma Pauperis Motion—Due Process—Right to Call Witnesses—Evidence.

Plaintiff, an inmate in the custody of the Colorado Department of Corrections (CDOC), was employed at Correctional Industries (CI), a for-profit division of the CDOC. On November 30, 2011, at approximately 3:45 p.m., plaintiff ended his work day without authorization from his supervisor.

Because plaintiff’s supervisor had not excused plaintiff from work, prison officials charged plaintiff with “Unauthorized Absence,” which is a Class II violation under the CDOC’s Code of Penal Discipline (COPD). Plaintiff was found guilty.

On appeal, plaintiff contended that the district court abused its discretion in denying his motion to proceed in forma pauperis. However, plaintiff had sufficient funds in his inmate account to pay the filing fee, so the trial court was required to deny his motion.

Plaintiff argued that the district court erred in requiring him to pay for the preparation of a written transcript of the administrative hearing rather than ordering an audio recording, as requested in his motion to certify the record. Neither CRCP 106 nor 106.5 require that, to obtain judicial review, a written transcript must be prepared. Therefore, the district court erred in requiring plaintiff to pay for the preparation of a written transcript of the disciplinary hearing. CDOC was ordered to credit plaintiff’s inmate account for the cost incurred for the preparation of the hearing transcript.

Plaintiff further alleged that he was denied his due process right to call his case manager as a witness and present a defense. The case manager, however, was not present during the incident, his testimony would not have been relevant to the disciplinary charge, and his testimony was based on hearsay. Accordingly, plaintiff’s due process rights were not violated by denying his request to call his case manager as a witness.

Plaintiff also argued that the CDOC lacked jurisdiction to decide the merits and evidence before it because the incident report was untimely filed. Due process requires only that an inmate be provided written notice of the charges against him. Therefore, even if the incident report was untimely filed, it does not rise to the level of a due process violation.

Finally, plaintiff contended that there was insufficient evidence to support the disciplinary conviction. Because the record contains “some evidence” that plaintiff left work without permission on November 30, 2011, the hearing officer’s decision finding plaintiff guilty of the charged disciplinary violation was affirmed.

The Court of appeals affirmed the judgment and order. The case was remanded to the district court with directions to refund the cost of the hearing transcript.

Summary and full case available here.

Tenth Circuit: Joinder of Plaintiffs Not Required or Allowed Under Class Action Fairness Act

The Tenth Circuit Court of Appeals issued its opinion in Teague v. Johnson & Johnson on Friday, April 11, 2014.

In the Class Action Fairness Act of 2005 (CAFA), Congress authorized the removal of certain class actions from state to federal court. CAFA also provides for the removal of “mass actions” that do not qualify as traditional class actions but which otherwise meet the Act’s criteria.

CAFA defines a mass action as “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law and fact.” The Act excludes from the term “mass action” any civil action in which either “the claims are joined upon motion of a defendant,” or “the claims have been consolidated or coordinated solely for pretrial proceedings.”

The controversy began when 702 plaintiffs from 26 different states and the Commonwealth of Puerto Rico filed twelve nearly identical product liability actions against the defendants in the District Court of Pottawatomie County, Oklahoma. The defendants are manufacturers of transvaginal mesh medical devices. The plaintiffs are women who were implanted with the devices and their husbands, who assert loss-of-consortium claims.

None of the individual actions contained 100 or more plaintiffs. Each of the actions included at least one New Jersey resident plaintiff. Each complaint specifically disclaimed federal question and federal diversity jurisdiction, and included provisions that admitted the claims had been joined for the purpose of pretrial discovery and proceedings but disclaimed joinder for trial purposes. All twelve actions were assigned to the same state court judge.

The defendants, corporate residents of New Jersey, removed the actions to the United States District Court for the Western District of Oklahoma, relying on both diversity jurisdiction and CAFA removal jurisdiction. They argued that complete diversity existed between the parties because in each action, the New Jersey citizen plaintiff had been fraudulently joined and should therefore be disregarded for diversity purposes. They further contended that jurisdiction was available under CAFA’s “mass action” provision because, by filing all of the suits in the same court before the same judge, plaintiffs had proposed a joint trial of claims involving more than 100 plaintiffs.

Plaintiffs moved to remand eleven of the actions, involving 650 plaintiffs, to state court. The district court granted their motion. It declined to adopt the procedural misjoinder doctrine advocated by the defendants, and concluded that plaintiffs had not in fact proposed a joint trial of their claims, as required for CAFA removal jurisdiction. The Tenth Circuit affirmed the judgment of the district court.