May 28, 2015

Colorado Supreme Court: Assignment Ineffective Where Personal Injury Suit As Yet Undetermined

The Colorado Supreme Court issued its opinion in Allstate Insurance Co. v. Medical Lien Management, Inc. on Tuesday, May 26, 2015.

Purported Assignment of Future Contract Rights—Purported Assignment of Future Personal Injury Proceeds.

Allstate Insurance Co. (Allstate) petitioned for review of the court of appeals’ judgment reversing the dismissal of a breach of assignment claim brought by Medical Lien Management, Inc. (MLM). Notwithstanding allegations of the complaint to the contrary, the district court effectively construed MLM’s Lien and Security Agreement with a motor vehicle accident victim, upon which the complaint was premised, as failing to assign the victim’s right to the proceeds of his personal injury lawsuit against Allstate’s insured. By contrast, the court of appeals found a valid assignment to MLM of all rights to the future proceeds from the victim’s personal injury claim in an amount equal to the costs of medical services paid for by MLM, as well as a sufficient allegation in the complaint of an enforceable obligation by Allstate to pay the assigned sums to MLM. The Supreme Court reversed, holding that the court of appeals erred in finding the purported assignment in this case—an as-yet indeterminable portion of proceeds of an unresolved personal injury claim—to be effective against Allstate.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Official Custodian’s Denial of Records Request Proper so No Entitlement to Attorney Fee Award

The Colorado Supreme Court issued its opinion in Reno v. Marks on Tuesday, May 26, 2015.

Colorado Open Records Act—CRS § 24-72-204—Costs and Attorney Fees.

In this case brought under the Colorado Open Records Act, the Supreme Court held that where an official custodian of records brings a court action under CRS § 24-72-204(6)(a) seeking an order restricting or prohibiting disclosure of records, a records requestor may recover costs and reasonable attorney fees in accordance with CRS § 24-72-204(5). Under subsection 204(5), a prevailing records requestor is entitled to costs and attorney fees unless the district court finds that the denial of the right of inspection was proper. Here, the district court’s order reflects that the official custodian’s denial of the request was proper. Consequently, the records requestor was not entitled to attorney fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Requirement of Exhaustion of Tortfeasor’s Liability Policy Prior to Collecting UIM Benefits

The Colorado Court of Appeals issued its opinion in Tubbs v. Farmers Insurance Exchange on Thursday, May 21, 2015.

Uninsured/Underinsured Motorist Coverage—Exhaustion Clause.

Tubbs was involved in a car accident in California with another driver. The accident was the other driver’s fault, and Tubbs suffered damages. The other driver’s auto insurance had a $100,000 liability limit. Tubbs was insured by Farmers Insurance Exchange (Farmers), and his policy included uninsured/underinsured motorist (UIM)coverage with a limit of $500,000. Tubbs accepted a $30,000 settlement from the other driver. He then sought to recover under his Farmers policy’s UIM provision, claiming that his total damages exceeded $100,000. Farmers refused to pay benefits, stating that Tubbs did not meet the conditions of the UIM clause, which required him to exhaust the limits of the liable party’s policy before making a UIM claim. The trial court entered summary judgment in favor of Farmers.

On appeal, Tubbs argued that the exhaustion clause in the UIM policy was void and unenforceable. UIM policies are required to cover the difference between the damages the insured party suffered and the limit of any liable party’s legal liability coverage, regardless of whether the insured party’s recovery from the liable party exhausted that limit. As applied to the facts of this case, CRS § 10-4-609(1)(c) requires that Farmers cover Tubbs for damages he sustained in excess of $100,000 (the other driver’s legal liability limit), in an amount up to $500,000 (the limit of Tubbs’s UIM coverage), regardless of how much, if any, he actually recovered under the other driver’s legal liability coverage. Because the exhaustion clause imposes a condition precedent on coverage mandated by the statute, the clause was void and unenforceable. The summary judgment was reversed and the case was remanded for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: State Entitled to Attorney Fees for Successful Subpoena Enforcement Action

The Colorado Court of Appeals issued its opinion in State of Colorado v. Vaden Law Firm, LLC on Thursday, May 21, 2015.

Investigative Subpoena—Colorado Consumer Protection Act—Attorney Fees.

The State of Colorado served an investigative subpoena on respondent Vaden Law Firm LLC (Vaden) pursuant to CRS § 6-1-108(1) of the Colorado Consumer Protection Act. The State sought records pertaining to costs Vaden had tried to recover on behalf of lenders in foreclosure actions. Vaden refused to produce any records. The State filed an application to enforce the Vaden subpoena in Denver District Court pursuant to CRS § 6-1-109. The court ordered Vaden to produce the requested records but denied the State’s request for attorney fees.

On appeal, the State contended that the district court’s denial of attorney fees was contrary to the plain language of CRS § 6-1-113(4). Subsection 113(4) requires an award of attorney fees and costs in all actions in which the Attorney General “successfully enforces this article.” This includes an award of attorney fees and costs in favor of the State when the State successfully enforces an investigative subpoena pursuant to the procedure dictated by CRS § 6-1-109. Accordingly, the district court’s order was vacated and the case was remanded for a determination of the State’s reasonable attorney fees and costs to be awarded against Vaden.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Waiver of Governmental Immunity Requires Showing of Excessive Speed and Endangering Life or Property

The Colorado Court of Appeals issued its opinion in Dempsey v. Denver Police Department on Thursday, May 21, 2015.

Personal Injury—Interlocutory Appeal—CRS § 24-10-108—Automobile Accident—Police Officer—Colorado Governmental Immunity Act.

Plaintiffs were struck by a police vehicle driven by Officer Jossi, who was en route to a possible robbery and traveling at a high rate of speed. Plaintiffs brought this action against Officer Jossi, along with the Denver Police Department and the City and County of Denver (collectively, Denver), seeking compensation for the injuries they sustained in the accident.Denver moved to dismiss the claims against it on the basis that the trial court lacked subject matter jurisdiction under theColorado Governmental Immunity Act (CGIA). The trial court denied the motion, and Denver appealed.

To find a waiver of immunity, the trial court was required to find that Officer Jossi both exceeded the lawful speed limit, taking into consideration any traffic conditions that would qualify as a “special hazard” to require a lower speed, and endangered life and property. The record does not clearly demonstrate that the trial court made a finding as to whether Officer Jossi was exceeding the lawful speed limit at the relevant time. Therefore, the order was vacated and the case was remanded for further findings.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Citizenship of LLC for Diversity Jurisdiction Based on Citizenship of Each LLC Member

The Tenth Circuit Court of Appeals issued its opinion in Siloam Springs Hotel, L.L.C. v. Century Surety Co. on Tuesday, March 31, 2015.

Siloam Springs Hotel, L.L.C. operates a Hampton Inn in Siloam Springs, Arkansas. It purchased a commercial general liability insurance policy from Century Surety Co. During the applicable coverage period, the heating element of an indoor swimming pool suddenly malfunctioned, causing a sudden carbon monoxide leak and injuring several guests. Siloam sought coverage from Century, but Century denied coverage, relying on an exclusion in the insurance policy for injuries arising from noxious characteristics of indoor air. In response, Siloam filed suit in Oklahoma state court, seeking a declaration of coverage. Century removed the case to the U.S. District Court for the Western District of Oklahoma, asserting complete diversity jurisdiction and an amount in controversy exceeding $75,000. The parties filed cross-motions for summary judgment in district court, and the district court granted summary judgment to Century.

Siloam timely appealed, challenging the district court’s ruling that the indoor air exclusion barred coverage. After the parties filed their merits briefs, the Tenth Circuit recognized a jurisdictional defect in Century’s notice of removal, which labeled Siloam as a “corporation” and asserted it was organized under Oklahoma law and had its primary place of business in Arkansas. The Tenth Circuit ordered Century to show cause regarding the discrepancy, noting that although the Tenth Circuit had not addressed the issue, every other circuit to consider citizenship of an LLC for diversity jurisdiction purposes has held citizenship of the LLC is defined by citizenship of its members.

Century responded by arguing the LLC’s citizenship should be determined by treating it as a corporation, or, alternatively, the court should find Siloam’s citizenship to be of Oklahoma, Florida, New York, North Carolina, and Texas. The Tenth Circuit disagreed. First, the Tenth Circuit found that Oklahoma law defines an LLC as an unincorporated association or proprietorship, not a corporation. Following Supreme Court precedent, the Tenth Circuit determined that citizenship of an unincorporated association or proprietorship is decided based on citizenship of all its members. Next, the Tenth Circuit rejected Century’s offer that the LLC’s citizenship be Oklahoma, Florida, New York, North Carolina, and Texas, since Century based its determination on an unsworn letter from Siloam’s counsel dated after the notice of removal. The Tenth Circuit found two flaws with Century’s argument. First, residence is not equivalent to domicile, and domicile is used to determine citizenship, so the information in the unsworn letter regarding residence of the LLC’s members did not adequately address domicile. Second, the letter was dated after the notice of removal, and relevance regarding removal is to be determined at the time of removal, not after.

Without addressing the merits of the appeal, the Tenth Circuit remanded to the district court to consider whether diversity jurisdiction is proper and whether the insurance coverage questions would be better answered by certification to the appropriate state court.

Tenth Circuit: District Court Within Discretion to Disregard “Unwieldy Mass” of Unnumbered Exhibits

The Tenth Circuit Court of Appeals issued its opinion in Certain Underwriters at Lloyd’s London v. Garmin International, Inc. on Friday, March 27, 2015.

Garmin International was testing a new product in experimental, home-built aircraft, and installed one in Henry Bartle’s airplane. Garmin also sent employees to Bartle’s hanger in order to draw illustrations for a manual for the product. Bartle designed a custom bracket for the product and sold it through his company for use with the Garmin product. While Bartle was flying with his stepdaughter, her friend, and her friend’s daughter, the plane crashed short of the runway and all four were injured. Bartle’s passengers and their friends brought suit in California, alleging claims of strict product liability, negligence, breach of express and implied warranties, and loss of consortium. Bartle claimed that the aircraft was built in a joint venture with Garmin and Garmin’s insurance policy included coverage for such joint ventures. Garmin denied any business relationship with Bartle and denied that he was a covered insured under any of its policies.

Garmin’s insurance provider subsequently brought suit in the U.S. District Court for the District of Kansas under the Declaratory Judgment Act, seeking a declaration that Bartle fell outside the definition of “insured” in any of its policies with Garmin. Bartle submitted over 700 pages of evidence and exhibits, but failed to comply with the court’s numbering and particularity requirements, thus the district court disregarded most of his evidence. The district court granted summary judgment to Garmin, finding Bartle was not covered by the insurance policies.

The Tenth Circuit first addressed whether the district court abused its discretion in disregarding the evidence that did not comply with District of Kansas Rule 56.1. Bartle explained that the court’s e-filing system limited the sizes of exhibits and assigned new document and page numbers to electronically filed exhibits, which made his citations incorrect. Although the Tenth Circuit was sympathetic to Bartle’s explanations of difficulties with the e-filing system, it found the district court was well within its discretion in setting aside Bartle’s “unwieldy mass of data.”

Turning next to the merits of the appeal, the Tenth Circuit found the plain language of Garmin’s policy required Bartle and Garmin to have more than a joint venture. In order to be covered, Bartle would have had to create one of the specifically described business entities and allowed Garmin to exercise control or have an ownership interest. Since there was no evidence of control by Garmin, the district court correctly found Bartle was not insured.

The Tenth Circuit affirmed the district court’s summary judgment.

Colorado Court of Appeals: No Abuse of Discretion to Admit Video Deposition of Adverse Witness

The Colorado Court of Appeals issued its opinion in Winkler v. Shaffer on Thursday, May 7, 2015.

Motion to Strike Video Deposition—Negligence Per Se Jury Instruction.

Plaintiffs were injured in a multi-vehicle accident during a snowstorm on an icy highway. Defendant lost control of a semitrailer after he was struck by two vehicles and came to a stop blocking the highway. Plaintiffs’ vehicle hit defendant’s truck in the ensuing pileup. Plaintiffs sued defendant and a number of other co-defendants not parties to this appeal.

At trial, defendants submitted a video deposition of Sergeant Gates, who, as the first law enforcement officer to respond to the accident, had witnessed part of it. Gates concluded that defendant drove reasonably, given the weather and road conditions.

Following trial, the jury concluded that some defendants were negligent and had caused 100% of plaintiffs’ injuries. It also concluded that defendant and several other co-defendants were not negligent and had not caused plaintiffs’ injuries.

On appeal, plaintiffs asserted that the trial court erred in denying their motion to strike Sergeant Gates’s deposition. Plaintiffs argued that Gates’s deposition exceeded the expert disclosure’s scope and that they did not have adequate time before trial to respond to the opinions expressed. The Court of Appeals disagreed. Plaintiffs failed to establish any prejudice or harm associated with this alleged error. They made no offer of proof of what they would have done or shown had they had additional time to respond to the deposition. They never requested a continuance after the deposition, which was taken ten days before trial. Moreover, their expert’s testimony provided rebuttal to the opinions expressed in the deposition, so any error was harmless.

Plaintiffs argued that the trial court erred in refusing to give a negligence per se instruction. The Court disagreed. The instructions given described the standard for common law negligence. Because the statutory standard under CRS §§ 42-4-1008 and -1101 codify common law negligence, any additional negligence per se standard would have been redundant. To find a statutory violation needed to establish negligence per se, a jury first has to find negligence, so giving the added instruction is not necessary. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Complaint Filed Two Years and One Day After Accrual Date Untimely

The Colorado Court of Appeals issued its opinion in Williams v. Crop Production Services, Inc. on Thursday, May 7, 2015.

Tort Statute of Limitations—CRCP 6(a)(1) Not Applicable to Statutory Time Periods—CRS § 13-80-102(1)(a).

The parties agreed that this wrongful discharge action sounded in tort, was subject to the two-year statute of limitations in CRS § 13-80-102(1)(a), and accrued on the date of termination by defendant. The parties disagreed on the manner of calculating the deadline for filing the complaint. Plaintiff claimed he had until October 8, 2013, or two years and one day after the accrual date. Defendant countered that the complaint had to be filed no later than the second anniversary of the accrual date, October 7, 2013. The Court of Appeals agreed with defendant.

Plaintiff relied on CRCP 6(a)(1) to calculate the accrual date, arguing that “the day of the act, event or default from which the designated period of time begins to run shall not be included.” Therefore, the date of defendant’s termination was not to be included and he had until two years after October 8, 2011 to file his complaint.

The Court rejected the application of the CRCP 6(a)(1) counting method for determining the deadline for filing an action under CRS § 13-80-102(a), instead looking to the Colorado statutes. CRS § 13-80-102(1) provides that tort actions “must be commenced within two years after the cause of action accrues, and not thereafter.” Pursuant to CRS § 2-4-107, the word “year” means a calendar year, so days need not be counted. Here, the cause of action accrued on the date of termination and therefore had to be filed no later than the second anniversary of that date—that is, by October 7, 2013. The district court was therefore correct in dismissing the action as untimely filed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Insurer Not Entitled to Directed Verdict Because Medical Benefit Payment Unreasonably Delayed

The Colorado Court of Appeals issued its opinion in Fisher v. State Farm Mutual Automobile Insurance Co. on Thursday, May 7, 2015.

Underinsured Motorist Coverage—Delayed Payment—Directed Verdict—Exclusion of Expert’s Testimony.

In February 2010, Fisher was injured in a collision between the vehicle he was driving and another vehicle. The other vehicle’s driver carried $25,000 in automobile liability insurance. Fisher was insured under several automobile insurance policies with defendant (State Farm) that had a combined underinsured motorist (UIM) coverage limit of $400,000. The trial court found in favor of Fisher in his claims against State Farm for unreasonably delaying and denying payment of UIM benefits.

On appeal, State Farm argued that the trial court erred in denying its motion for a directed verdict on Fisher’s statutory claim. State Farm contended that Fisher’s medical expenses were not, as a matter of law, benefits owed to Fisher at the time he initiated the lawsuit, and therefore, it could not have unreasonably delayed payment of owed UIM benefits. CRS § 10-3-1115(2) provides that “an insurer’s delay or denial was unreasonable if the insurer delayed or denied authorizing payment of a covered benefit without a reasonable basis for that action” (emphasis added). State Farm was precluded from relying on any policy language that purports to prevent Fisher from establishing a claim under CRS § 10-3-1115 until the amount of compensatory damages to which he is legally entitled to collect from the underinsured motorist has been determined. Accordingly, under the plain language of § 1115, State Farm had a duty to not unreasonably delay or deny payment of Fisher’s medical expenses. Fisher offered evidence that he had presented medical bills to State Farm totaling $61,125 at the end of September 2010, and State Farm had not paid any of those bills by the time the lawsuit was filed in July 2011. Therefore, there was sufficient evidence introduced at trial to support the jury’s verdict that State Farm unreasonably delayed paying Fisher’s medical expenses.

State Farm also argued that the trial court abused its discretion in excluding the testimony of its insurance industry standard expert. CRS § 10-3-1115(2) defines “unreasonableness” for the purpose of a claim under §§ 1115 or 1116, and State Farm was not harmed by excluding testimony contrary to Colorado law. The judgment was therefore affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Qualified Immunity Improperly Denied to Officers Whose Conduct Not Clearly Prohibited by Established Law

The Tenth Circuit Court of Appeals issued its opinion in Quinn v. Young on Friday, March 13, 2015.

Plaintiffs John Quinn and Lavern Gonzalez were arrested after a sting operation. The Albuquerque Police Department (APD) had organized a sting (called the “Tact Plan”) in which they left a backpack containing alcohol, cigarettes, and a laptop next to an ATM and waited to see who would take it. Quinn, Gonzalez, and their child approached the backpack and conversed. The child took the backpack and the three went to a local diner. The police followed. At the diner, Gonzalez opened the backpack and examined its contents. When she opened the laptop, the APD logo appeared and officers arrested Quinn and Gonzalez. They were detained for approximately two days.

Plaintiffs filed a complaint in New Mexico’s federal district court against the officers, Sergeant Armijo, the APD chief, the APD, four APD supervisors, and the City of Albuquerque (collectively, defendants). Plaintiffs alleged that Defendants’ conduct, as well as the Tact Plan, violated their Fourth Amendment right to be free from unlawful seizure under § 1983. Plaintiffs also alleged entrapment and violation of their substantive due process rights by causing them embarrassment and humiliation. Defendants responded with a summary judgment motion, arguing the officers were entitled to qualified immunity, Plaintiffs had stated no constitutional violation by a municipal employee, and Plaintiffs had stated no actionable claim against the police chief or APD.

The district court granted Defendants’ motion in part and denied it in part, finding Plaintiffs had established a genuine issue of material fact as to whether there was probable cause for their arrest. The district court ruled that the officers should have been on notice that they could not arrest for larceny without probable cause and denied qualified immunity on Plaintiffs’ Fourth Amendment claim. Without making requisite findings, the district court denied qualified immunity on all Plaintiffs’ claims, and it did not articulate a basis for ruling on the entrapment claim. The officers timely appealed.

The Tenth Circuit first addressed the Fourth Amendment claim, evaluating whether the officers had probable cause to arrest Plaintiffs for larceny following the sting operation and whether clearly established law at the time of the offense would have placed a reasonable, similarly situated police officer on notice that no probable cause existed. Addressing the second question first, the Tenth Circuit found that any constitutional violation would not have been apparent based on the clearly established law existing at the time of the arrest, and the officers should have been granted qualified immunity. Finding the lack of on-point caselaw significant, the Tenth Circuit evaluated jurisprudence on non-sting larceny cases and found the officers would not have had fair warning that their arrests lacked probable cause. Additionally, two cases decided in 2013—three years after the arrests in issue here—also determined there was a lack of caselaw regarding the constitutionality of sting operations, supporting the Tenth Circuit’s position that the officers would not have had fair warning about the constitutionality of their arrests.

The Tenth Circuit next evaluated the officers’ challenge to the district court’s denial of qualified immunity on the entrapment, malicious prosecution, and due process claims. Recognizing that the district court “painted with broad strokes,” the Tenth Circuit addressed these points. The Tenth Circuit concluded that the entrapment claim was not properly before it on appeal, since Plaintiffs only named the government and not the officers in their entrapment claim, and dismissed it for lack of jurisdiction. The Tenth Circuit likewise exercised its discretion and declined to address the malicious prosecution and due process claims, opting instead for a limited remand with instructions for the district court to explicitly address whether the officers are entitled to qualified immunity on the malicious prosecution and due process claims and then rule on the claims based on the findings.

The Tenth Circuit reversed the summary judgment on the officers’ qualified immunity claim and directed the district court to enter judgment in favor of the officers, dismissed the appeal related to the entrapment claim for lack of jurisdiction, and remanded the malicious prosecution and due process claims with instructions.

The Colorado Lawyer: Abraham Lincoln—150 Years Later

Editor’s Note: This article originally appeared in the April 2015 issue of The Colorado Lawyer. Reprinted with permission.

By Charles F. Garciacharley garcia

Where justice is denied, where poverty is enforced, where
ignorance prevails, and where any one class is made to feel
that society is an organized conspiracy to oppress, rob and
degrade them, neither persons or property will be safe.

—Frederick Douglass, Emancipation Celebration
Washington, DC, 1886

April 15, 2015 marks the 150th anniversary of President Abraham Lincoln’s death. Lincoln served as U.S. President for little more than one term, and during that period, he worked to make all people of this country equal. He wrote the Emancipation Proclamation in 1862, declaring that “all persons held as slaves within any State or designated part of a state . . . shall be . . . forever free.” On April 4, 1864, the Thirteenth Amendment to the U.S. Constitution abolishing slavery passed the Senate, and on January 31, 1865, it passed the House of Representatives. It was ratified after Lincoln’s death on December 6, 1865.

Mindful of this powerful history, I began to reflect on recent events involving racial conflict occurring in the United States, including in Colorado, and to contemplate how far we have come in 150 years. We should not shy away from discussing racial conflict and related social and legal injustices simply because it is a difficult and sensitive subject for which there may be no single or immediate solution. I firmly believe that it is our duty as members of this honorable profession to reflect on the inescapable fact that people of color are over-criminalized, and constructively work toward reform. I hope this Message advances the discussion of the role we must play to ensure equality for all.

Atticus Revisted

On July 11, 1960, To Kill a Mockingbird by Harper Lee was published. Lee attended law school at the University of Alabama but chose to pursue a career in writing instead of the law. (She did receive an Honorary Special Membership to the Alabama Bar in 2008.[1])

To Kill a Mockingbird was published during a time of much racial tension in the United States. For example, in 1955, the black teenager Emmett Till was murdered in Mississippi for allegedly flirting with a white woman, and the Montgomery bus boycott of 1955 occurred after Rosa Parks was arrested for not giving up her seat on a bus to a white man. The book has been hailed by many in the civil rights movement for moving forward the dialogue on race and justice. For example, former Atlanta Mayor Andrew Young, who was the first African American since Reconstruction to represent Georgia in the U.S. Congress, stated that Lee’s book “inspired hope in the midst of chaos and confusion.”[2]

Searching for Answers

President Abraham Lincoln sought to bring racial justice to this country, and Harper Lee sought to bring social awareness to the fact that ninety-five years after the Emancipation Proclamation, equality was not a reality. Now, 150 years after Lincoln’s death and the ratification of the Thirteenth Amendment, there may be some sense of legal equality on the books, but equality across society is not a reality, and that is evident in the criminal justice system. For example, according to information as recent as November 2014:

Arrest rates are hard to come by, but African Americans are arrested at rates far exceeding their white counterparts. In many cities, the rate is 10 times higher and in some, it is as much as 26 times higher.[3]

According to the Bureau of Justice Statistics, “African American males are incarcerated at a rate 6.7 times higher, and Hispanic males 2.5 times higher, than their white non-Hispanic counterparts.”[4]

On February 22, 2015, when singer–songwriter John Legend accepted the Oscar for co-writing the song “Glory” from the film Selma, he commented, “There are more black men under correctional control today than there were under slavery in 1850.” The events highlighted by the death of a young African American man in Ferguson, Missouri have again focused national attention on the issue of race and justice in America. Similar events in Colorado have spurred protests in recent months. As citizens and as lawyers, we are striving to find answers to the questions raised by these events.

In December 2014, the Sam Cary Bar Association, in conjunction with the CBA and other bar associations, presented a program entitled “Community Forum—Waiting to Exhale: A Conversation About Race and Our Justice System.” The Forum was a panel discussion on long-ignored race-related issues brought to light by the events of Ferguson. Questions raised at the Forum focused largely on the manner in which our three branches of government should address these issues and the degree to which it is the responsibility of our justice system to rectify the unfair, unequitable imposition of punishment. Forum presenters focused on the Denver Police and Sheriff’s Departments, but the discussion also ventured into the role of our courts and legislature in addressing issues that ranged from excessive force by law enforcement to minority overrepresentation in our criminal justice system. The Forum itself provided no easy solutions to the problems raised by the community, but it continued to advance the conversation.

Legislating on Behalf of Children

The prevailing question is what lawyers can do to better address the issues pertaining to racial injustice in our society. It seems everyone has suggestions in these trying times, and one entity that is looking for answers is the Colorado Legislature, where, during the 2015 legislative session, it will be considering a bill dealing with petty tickets for juveniles. This bill began as a recommendation from the Juvenile Justice Task Force of the Colorado Criminal and Juvenile Justice Commission. The intention of the bill is to find a way to keep our children from becoming part of the criminal justice system. The belief is that once a child becomes part of the criminal justice system, it is very difficult to remove him or her from the system.

Tackling the overrepresentation of people of color in our criminal justice system begins with how we address the treatment of our children. It is a fact that our juvenile courts are overcrowded. The number of people of color adjudicated in those courts does not reflect our society as a community. We must begin our search for answers by looking at our courts and determining how our children reach the courts in the first place. This bill is a start to addressing the bigger issue of racial injustice.

The Challenge to the Justice System

We must begin to collaborate to solve the problems of over-criminalization, mass imprisonment, and minority overrepresentation in our criminal justice system. Although most people may agree on what the bigger problems are, they may differ on the causes. This should not stop us from working with our legislators, governors, mayors, judges, prosecutors, and defense attorneys to find solutions.

> A New York Times column on February 18, 2015 stated:

Usually bitter adversairies, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken. Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-based liberal issues group are coming together to back a new organization called the Coalition for Public Safety. The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives.[5]

> In her book The New Jim Crow,[6] Michelle Alexander focuses on how the enactment and enforcement of drug laws have created a society in our country where we legalize discrimination. She argues in the book that the U.S. criminal justice system functions as a contemporary system of racial control, and writes that “we have not ended racial caste in America; we have merely redesigned it.” The United States currently represents 5% of the world population but represents 25% of the world’s incarcerated population.[7] In her January 2012 appearance on the National Public Radio program Fresh Air, Alexander told host Dave Davies that “[p]eople are swept into the criminal justice system—particularly in poor communities of color—at very early ages.”[8]

> George F. Will wrote about the death of Eric Garner in New York for the Washington Post Writers Group (WPWG). On December 14, 2014, when talking about the death of Eric Garner in New York for selling illegal cigarettes, Will wrote:

Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles. Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.[9]

> Professor Stephen L. Carter of Yale Law School has stated that [o]vercriminalization matters [because] making an offense criminal also means that the police will go armed to enforce it. However, today’s political system takes bizarre delight in creating new crimes for enforcement.[10]

> George Will states further in his WPWG article: The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism.[11]

> A group known as Right on Crime,[12] a project of the Texas Public Policy Foundation and in cooperation with the Justice Fellowship, has brought together former U.S. Speaker of the House Newt Gingrich, political advocate Grover Norquist, Texas Governor Rick Perry, and others to examine the causes of mass incarceration in Texas and across the United States. A look at Right on Crime’s website, www.rightoncrime.com, will lead you to articles on attempts at criminal justice reform in such states as Ohio, Georgia, and West Virginia.

The Rule of Law—The Guiding Premise to Repairing Injustices

Racial injustice exists outside the criminal justice system, as well. Inequalities in our educational system, in the employment arena, and in housing serve as breeding grounds for racial injustice in the criminal justice system. We need to constantly work at airing and addressing the problems that exist in all areas of society. At the same time, we need to address the reasons behind the staggering rate of incarceration of people of color and the poor in our country. The answer to societal injustices does not rest in any one of the three branches of our government, but in all three.

Our legislators need to address over-criminalization, mass incarceration, and overrepresentation of people of color in the criminal justice system. Legislators around the country are now rushing to enact laws around police body cameras, excessive force laws, and grand juries for police misconduct. These are perhaps good ideas, but they may be no more than Band-Aids for a much larger wound in our society.

Our Executive Branch needs to examine the enforcement of our laws to find a way to enforce them without doing harm to society. Many of the issues are particular to the local community, and this is where change needs to begin. We need to take a new approach to law enforcement, especially as it relates to people of color. It is the job of our mayors, city councils, and county commissioners to examine our methodology of law enforcement and assure the words “Serve and Protect” have meaning.

Finally, the third branch of government, and the one we lawyers know best—the Judicial Branch—plays a vital role in questioning and responding to the many issues raised here. The acts of our legislators and of our Executive Branch will eventually be tested in our courts. The criminal justice system is unworkable if it is not vetted in our courts.

There is one thing that is paramount in effecting change in our criminal justice system, and that is adherence to the rule of law. Many believe—and rightly so—that the rich and poor are treated differently in our criminal justice system. This has to change.

The rule of law is simple: the same laws must apply to each and every one of us. It is the duty of our courts to look out into the audience of the courtroom and the cells of our jails and ask why there is such a broad discrepancy among those who are criminalized. Colorado comprises district, county, and municipal courts. The county courts handle misdemeanor criminal matters and are frequently referred to as “our people’s courts.” The municipal courts handle municipal ordinance violations. These are the cases that are the subject of George Will’s reference to the “broken windows” method of police oversight of our communities. These are the courts Michelle Alexander speaks of when she talks about sweeping people into the criminal justice system. Once they are swept in even at the municipal level, they become branded for life, thus creating hurdles to employment, housing, and other opportunities that lead to the vicious circle that keeps them in the criminal justice system.

Conclusion

As stated in The New York Times article, in writing about the Koch brothers and the center coalition:

With the huge costs to the public of an expanding 2.2 million person prison population drawing interest from the right and the conviction that the system is unfair and incarcerating too many drug and nonviolent offenders driving those on the left, the new coalition is the most recent example of ideological opposites joining together.[13]

We must continue to correct inequality in this country and we can begin by bringing equality to the justice system. Atticus Finch stated in his closing argument:

Now, gentlemen, in this country, our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and our jury system—that’s no ideal to me. That is a living, working reality.[14]

I am an idealist, and I firmly believe our courts are the great levelers. I also believe that we as lawyers and citizens, together with our communities, must begin the difficult work of collaboration, because the courts are not the only solution. President Lincoln stated in the Gettysburg Address that “all men are created equal.” Our Declaration of Independence also states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. . . .” We must reexamine what has occurred during the past 150 years and constructively work toward improving the direction we take toward a better future.


Notes

[1] “Alabama Supreme Court Awards Harper Lee Honorary Special Membership,” The Alabama Lawyer 252 (July 2008), www.alabar.org/assets/uploads/2014/08/Lawyer-July-2008_Web.pdf.

[2] See, e.g., American Masters: Harper Lee: Hey Boo (2010), www.pbs.org/wnet/americanmasters/episodes/harper-lee-hey-boo/about-the-documentary/1972.

[3] Heath, “Racial Gap in U.S. Arrest rates: ‘Staggering disparity,’”USA Today (Nov. 19, 2014), www.usatoday.com/story/news/nation/2014/11/18/ferguson-black-arrest-rates/19043207.

[4] See West, “Prison Inmates at Midyear 2009—Statistical Tables” (June 2010),www.bjs.gov/content/pub/pdf/pim09st.pdf.

[5] See Hulse, “Unlikely Cause Unites the Left and the Right: Justice Reform,” The New York Times(Feb. 18, 2015), www.nytimes.com/2015/02/19/us/politics/unlikely-cause-unites-the-left-and-the-right-justice-reform.html?_r=1.

[6] Alexander, The New Jim Crow (New Press, 2010).

[7] See NAACP, “Criminal Justice Fact Sheet,” www.naacp.org/pages/criminal-justice-fact-sheet. See also Ehrenfreund, “There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery,” The Washington Post (Feb. 23, 2015), www.washingtonpost.com/blogs/wonkblog/wp/2015/02/23/theres-a-disturbing-truth-to-john-legends-oscar-statement-about-prisons-and-slavery/?tid=sm_tw.

[8] See “Legal Scholar: Jim Crow Still Exists in American,” Fresh Air (NPR Radio, Jan. 16, 2012), www.npr.org/2012/01/16/145175694/legal-scholar-jim-crow-still-exists-in-america.

[9] Will, “Eric Garner, criminalized to death,” The Washington Post (Dec. 10, 2014), www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html.

[10] Carter, “Law puts us all in same danger as Eric Garner,” Bloomberg News (Dec. 14, 2014), www.commercialappeal.com/opinion/national-and-world-commentary/stephen-l-carter-law-puts-us-all-in-same-danger-as-eric-garner_29242740.

[11] Will, supra note 9.

[12] See www.rightoncrime.com. See also Denver Post Editorial Board, “Common ground on criminal justice reform,” The Denver Post (Feb. 20, 2015), www.denverpost.com/editorials/ci_27568775/common-ground-criminal-justice-reform?source=infinite. See also Hulse, supra note 5.

[13] Hulse, supra note 5.

[14] Lee, To Kill a Mockingbird (Grand Central Publishing, 1960).

Charles F. Garcia, Esq., CBA President, is a graduate of the University of Wisconsin. He worked in international tax as a CPA for Arthur Andersen & Co. and Price Waterhouse for ten years. He then went on to graduate from the University of Denver College Of Law and joined the Office of the Colorado State Public Defender, where he practiced as a criminal defense trial attorney for twenty-five years. He is an Adjunct Professor of Law at the University Of Denver Sturm College of Law and a teacher for the National Institute of Trial Advocacy. Charles retired in 2007 as the Office Head for the Denver Office of the Colorado State Public Defender. Charles was a campaign policy advisor and a co-chair to the transition team for Governor Hickenlooper and is currently Special Counsel to Governor Hickenlooper. In 2011, Charles came out of retirement to be appointed by Mayor Vidal as the Manager of Safety for the City and County of Denver.