April 28, 2017

Bills Limiting Evidence in Groundwater Appeals, Expanding Juvenile Court Jurisdiction, and More Signed

On Tuesday, April 18, 2017, Governor Hickenlooper signed 11 bills into law. To date, he has signed 158 bills this legislative session. The bills signed Tuesday include a bill limiting the evidence that may be submitted in appeals from groundwater decisions, a bill expanding the exception for possession of sexually exploitative material to prosecutors and others involved in investigations, a bill giving the juvenile court jurisdiction to decide parental responsibilities issues in juvenile issues, and more. The bills signed Tuesday are summarized here.

  • HB 17-1012“Concerning the Creation of a Pueblo Chile License Plate,” by Rep. Daneya Esgar and Sen. Leroy Garcia. The bill creates the Pueblo chile special license plate. In addition to the standard motor vehicle fees, the plate requires 2 one-time fees of $25.
  • HB 17-1110“Concerning Juvenile Court Jurisdiction Regarding Matters Related to Parental Responsibilities in a Juvenile Delinquency Case,” by Rep. Susan Beckman and Sen. Nancy Todd. The bill allows the juvenile court to take jurisdiction involving a juvenile in a juvenile delinquency case and subsequently enter orders addressing parental responsibilities and parenting time and child support in certain circumstances.
  • HB 17-1138“Concerning the Reporting of Hate Crimes by Law Enforcement Agencies,” by Rep. Joseph Salazar and Sen. Angela Williams. The bill requires the Department of Public Safety to include in its annual hearing information concerning reports submitted by law enforcement agencies about crimes committed in the state during the previous year, including but not limited to information concerning reports of bias-motivated crimes.
  • HB 17-1174“Concerning the Establishment of an Exception for Rural Counties from the Limitations on the Establishment of a Local Improvement District to Fund the Construction of a Telecommunications Service Improvement for Advanced Service,” by Rep. James Wilson and Sens. Lucia Guzman & Larry Crowder. The bill allows a rural county with a population of fewer than 50,000 inhabitants to establish a local improvement district to fund an advanced service improvement in an unserved area of the county.
  • HB 17-1193“Concerning the Installation of Small Wireless Service Infrastructure within a Local Government’s Jurisdiction, and, in Connection Therewith, Clarifying that an Expedited Permitting Process Applies to Small Cell Facilities and Small Cell Networks and that the Rights-of-Way Access Afforded Telecommunications Providers Extends to Broadband Providers and to Small Cell Facilities and Small Cell Networks,” by Reps. Tracy Kraft-Tharp & Jon Becker and Sens. Andy Kerr & Jack Tate. The bill clarifies that the expedited permitting process established for broadband facilities applies to small cell facilities and small cell networks, and that the rights-of-way access afforded to telecommunications providers for the construction, maintenance, and operation of telecommunications and broadband facilities extend to broadband providers as well as small cell facilities and small cell networks.
  • SB 17-036“Concerning Groundwater,” by Sens. Don Coram & Ray Scott and Reps. Jon Becker & Jeni Arndt. The bill limits the evidence that a district court may consider, when reviewing a decision or action of the commission or state engineer on appeal, to the evidence presented to the commission or state engineer.
  • SB 17-068“Concerning Early Support for Student Success Through Access to School Counselors, and, in Connection Therewith, Serving All Grades Through the Behavioral Health Care Professional Matching Grant Program and the School Counselor Corps Grant Program,” by Sen. Nancy Todd and Rep. Jonathan Singer. The bill adds elementary schools to the list of public schools eligible to receive a grant through the behavioral health care professional matching grant program.
  • SB 17-088“Concerning the Criteria Used by a Health Insurer to Select Health Care Providers to Participate in the Insurer’s Network of Providers, and, in Connection Therewith, Making an Appropriation,” by Sens. Angela Williams & Chris Holbert and Reps. Kevin Van Winkle & Edie Hooten. The bill requires health insurers to develop and use standards for selecting participating providers for its network and tiering providers if the insurer carries a tiered network.
  • SB 17-112: “Concerning a Clarification of the Effect of Statutes of Limitations on the Dispute Resolution Process when a Taxpayer Owes Sales or Use Tax to One Local Government but has Erroneously Paid the Disputed Tax to Another Local Government,” by Sen. Tim Neville and Rep. Dan Pabon. The bill seeks to clarify the General Assembly’s intent when it enacted a dispute resolution process in 1985 to address a situation when a taxpayer paid a sales and use tax to one local government when it should have instead paid that disputed amount to a different local government.
  • SB 17-115“Concerning Possession of Sexually Exploitative Material by Persons Involved in Sexually Exploitative Material Cases,” by Sen. John Cooke and Reps. Mike Foote & Yeulin Willett. Under current law there is an exception to the crime of possession of sexually exploitative material for peace officers while in the performance of their duties. The bill expands the exception to a prosecutor, criminal investigator, crime analyst, or other individual who is employed by a law enforcement agency or district attorney’s office and performs or assists in investigative duties.
  • SB 17-137“Concerning the Continuation of the Colorado Health Service Corps Advisory Council,” by Sens. Nancy Todd & Michael Merrifield and Rep. Dominique Jackson. The bill continues the Colorado Health Service Corps Advisory Council indefinitely.

For a list of all of Governor Hickenlooper’s 2017 legislative decisions, click here.

HB 17-1156: Prohibiting “Conversion Therapy” by Licensed Mental Health Care Providers

On February 6, 2017, Rep. Paul Rosenthal and Sen. Stephen Fenberg introduced HB 17-1156, “Concerning a Prohibition on Conversion Therapy by a Licensed Mental Health Care Provider.”

The bill prohibits a licensed physician specializing in psychiatry or a licensed or registered mental health care provider from engaging in conversion therapy with a patient under 18 years of age. A licensee who engages in these efforts is subject to disciplinary action by the appropriate licensing board. ‘Conversion therapy’ means efforts that seek to change an individual’s sexual orientation, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

The bill was introduced in the House and assigned to the Public Health Care & Human Services Committee.

SB 17-021: Establishing a Program for Support of Mentally Ill Persons when Released from Department of Corrections

On January 11, 2017, Sen. Beth Humenik and Rep. Jonathan Singer introduced SB 17-021, “Concerning Reentry Services for Persons with Mental Illness in the Criminal Justice System, and, in Connection Therewith, Making an Appropriation.”

Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems.

The bill directs the division of housing in the department of local affairs to establish a program to provide vouchers and supportive services to persons with a mental illness who are being released from the department of corrections (DOC) or jails. The program is funded by general fund appropriations and from money unspent by the division of criminal justice (CDPS) for community corrections programs in the previous fiscal year.

The bill directs the behavioral health unit in the department of human services, in conjunction with the DOC, to implement reentry programs to assist persons with a mental illness who are transitioning from incarceration. If necessary, the programs may receive money from the community corrections appropriation to CDPS.

The bill appropriates $2.7 million to the department of local affairs.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 15 at 1:30 p.m.

The Addicted Lawyer: Is Alcoholics Anonymous For You?

Editor’s Note: This article originally appeared on Above the Law on October 14, 2016. Reprinted with permission.

If you or someone you know is struggling with addiction, please get help. The Colorado Lawyer Assistance Program provides confidential assistance — call (303) 986-3345 or visit coloradolap.org

briancuban-e1473974781722By Brian Cuban, Esq.

April 2007. I walk up to the door of the building where area Alcoholics Anonymous (AA) meetings are held. My family is pushing hard for in-patient treatment but I refuse. My psychiatrist feels that a trip here is the first step to long-term sobriety. Lucky for me, the building is right next to his office. If it hadn’t been convenient, I might have just made excuses to not go at all. For an addict, excuses are often more plentiful than reasons for recovery. The present is more important than the future — the present of the high.

After pacing around outside the doorway for a long time, I finally peer down the long hallway into the room where people are gathering. I’m afraid of being recognized. My ego is still paramount in my worries. “I’m a lawyer. There are no lawyers in in AA or treatment. My one client left needs me!”

My mind flashes back to one of my favorite childhood movies, Willy Wonka & the Chocolate Factory. I suddenly imagine that as soon as I enter the meeting room, I’ll be carried away by a team of chanting Oompa Loompas determined to punish me for my bad habits. I have no desire to meet the Oompa Loompas on the other side of that door.

I finally walk down the hall into the meeting room, and I can smell the fumes of stale cigarette smoke and day-old coffee. My eyes lock onto the 1950s tile floor, ingrained with the dirt of countless feet. There are other people milling around in room. Are these the people with whom I was supposed to share my darkest secrets? Would I be made fun of, teased, or insulted? Who are these people? Skid row bums? That’s my perception of AA. I think of Nick Cage’s character, Ben, living in the sleazy “no-tell motel” as he drinks himself to death in Leaving Las Vegas. Dick Van Dyke’s character, Charlie, drunk, alone on the beach with no future in The Morning After.

Deep breath. Don’t look around. Eyes down at the floor. That fixed point. Watch the feet move forward. One baby step at a time to a waiting chair. It’s the way I’m able to accomplish things in life. It’s how I was able to finish eight marathons. Facing any difficult task, my best self is that part of me that can place one foot in front of the other until a goal is accomplished. Don’t look left. Don’t look right. Don’t think about the finish line. I sit down. I listen. I cry. At the end of the meeting, I take a desire chip. The most important journey in my life begins.

As you have probably figured out, I got sober in Alcoholics Anonymous. I know I am irritating some who believe we should not talk publicly about being in AA. I believe we should be empowered to share all aspects of our personal journey if we choose to. I find it perplexing that we as attorneys in recovery, who spend our lives engaged in critical thought and using data, will exclude AA from that process as if there is some magical healing power to not discussing both its benefits and flaws when there is no empirical data to support the notion that talking publicly about being in AA, then relapsing publicly, will cause someone to not enter the program.

Certain aspects of AA have worked for me to date. I completely disregard other aspects. The sober connections I found in group were, and are, important to me. The people. The stories that tell me I am not alone. I, however, have never been as keen on the spiritual aspects and certain rituals of the program. That’s just me. You may like that. You may need that. Those issues however, have never been a deterrent to me in my program like they are for some who reject AA as their mode of recovery.

In speaking to law students and other lawyers about recovery, while some embrace the program, some would rather find others ways to long-term sobriety and have. Through their church. Through non-12-step-based programs such as Smart Recovery. Through both 12-step-based and non-12-step-based residential treatment. Through collegiate recovery programs. Through informal local attorney support groups. I know a few lawyers who have gotten sober on their own, although I would never recommend that path to start. There are many paths to recovery available today that were not available in 1935 when AA was founded.  AA has also not been my only mode of therapy. I have been seeing a psychiatrist for over a decade. I take anti-depressant medication daily. Cognitive Behavioral Therapy (CBT) and Acceptance and Commitment Therapy (ACT) have been important in my recovery. Let’s not lose sight of the goal: To be a person in long-term recovery regardless of the path chosen. The most important decision of your life should be one of reflection and critical thought. It’s your journey. If it’s AA, that’s great. If it’s another path, get on it. Recovery awaits.

  1. http://www.americanbar.org/groups/lawyer_assistance.html
  2. http://collegiaterecovery.org/programs/
  3. http://www.aa.org/
  4. http://www.smartrecovery.org/
  5. http://www.celebraterecovery.com/

 

Brian Cuban (@bcuban) is The Addicted Lawyer. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Supreme Court: Reverse Transfer Request Does Not Waive Psychologist-Patient Privilege

The Colorado Supreme Court issued its opinion in Johnson v. People on Monday, October 3, 2016.

Criminal Law—Juvenile Law—Psychotherapist-Patient Privilege.

This case raises two questions involving what a trial court may order when a juvenile seeks reverse-transfer of her criminal case from trial court to juvenile court. First, when a juvenile requests a reverse-transfer hearing, does she waive her psychotherapist-patient privilege, thereby authorizing a trial court to order her to produce privileged mental health records pursuant to C.R.S. § 19-2-517(3)(b)(VI)? Second, does C.R.S. § 19-2-517(3)(b)(VI) give a trial court the power to order a juvenile to submit to a state mental health assessment? As to the first question, the Colorado Supreme Court held that, because nothing in the statute states that a juvenile waives her psychotherapist–patient privilege by requesting a reverse-transfer hearing, a trial court cannot order the juvenile to produce privileged mental health records. As to the second question, the court held that, because nothing in the statute explicitly grants a trial court the power to order a mental health assessment, a trial court cannot order such an assessment. The reverse-transfer statute only requires that the trial court consider mental health records “made available” (i.e., voluntarily waived by the privilege-holder) to the trial court and the parties. Therefore, the court made its rule to show cause absolute and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Mental Health Assessment Not Court-Ordered Where Defendant Agreed to Participate

The Colorado Supreme Court issued its opinion in Higgins v. People on Monday, October 3, 2016.

Criminal Law—Juvenile Law—Psychotherapist– Patient Privilege—Constitutional Law.

This companion case to People v. Johnson, 2016 CO 69, raises two questions. First, does a trial court have statutory authority to order a juvenile charged as an adult to undergo a state-administered mental health assessment for a reverse-transfer proceeding? The supreme court answered that question in the negative in Johnson, but does not answer that question here because it is hypothetical—the question is not based on the facts of this case. Second, is a trial court required, before a mental health assessment, to provide a juvenile with warnings based on the Fifth Amendment right against self-incrimination? The court does not answer that question either, because (1) Higgins consented to the evaluation while represented by counsel, and (2) any claims that ineffective assistance of counsel vitiated Higgins’s consent are premature. Therefore, the court vacated the order to show cause and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

The Addicted Lawyer: Silence is Deadly

Editor’s Note: This article originally appeared on Above the Law on September 16, 2016. Reprinted with permission.

September is Suicide Awareness Month. If you or someone you know is struggling with addiction or suicidal thoughts, please get help. The Colorado Lawyer Assistance Program provides confidential assistance — call (303) 986-3345 or visit coloradolap.org

briancuban-e1473974781722By Brian Cuban, Esq.

July 2005. A dark room. Table, desk, chairs. I’m with a staff psychiatrist of the Green Oaks Psychiatric Facility in Dallas, Texas. My brothers, Mark and Jeff, are sitting at the table across from me. I have a vague recollection of my younger brother rousing me from my bed. My .45 automatic lying on my nightstand.

The residuals of cocaine, Xanax, and Jack Daniels are still coursing through my veins. Questions from the attending psychiatrist pierce my fog and anger like tracer rounds. “What drugs have you taken? How are you feeling? Do you want to hurt yourself?”

In the back of my mind, what’s left of the lawyer takes over. I know that my family can’t commit me, but he can. Proceed with caution. I don’t mention that I had been “practicing” sticking the barrel of the gun in my mouth and dry-firing the gun.

Ripped back to reality. Voices in the room. The doctor is talking to me again. When was the last time I used cocaine? I’m pretty sure it has been recently, since it was all over the room when my brothers showed up. I had become the consummate liar in hiding the obvious cocaine habit and drinking problem from my family.

More questions. Do I think I need help? Will I go to rehab? Sure, whatever will get me out of here? I lash out again. They have no right to do this. I yell across the table. “You have no right to control my life! I am an adult! Mind your own business!” They quietly let me rant.

Blaming them for the darkness is so much easier than seeing the light. The doctor is asking calm, focused questions, to ascertain whether I am a danger to myself. At times I am calm in my answers. At times I am crying, angry at him, then at my brothers. Quit asking the same questions! I know your game! Quit treating me like an idiot!

An hour has passed. The room is getting brighter. The love and calm of my brothers soothes me. Quiets me, softens my edges. It’s always been there, but I wasn’t present enough to sense it. I was thinking only of myself: My next high. My next drink. Without the drugs, what am I going to see in the mirror each morning? The thought terrifies me. My brothers calm me, and I begin to focus on my love for my family. Arms are around me. Holding me. I begin to feel the love penetrating my shell. They are not the enemy. Should I go to rehab? What about twelve-step? I’m still on the defensive, but at least for the moment I can listen. Have to grab those moments. They don’t come often.

Sitting in that room during my first of two trips to a psychiatric facility seems so long ago. Today I am closing in on ten years of long-term recovery from addiction. I still deal with clinical depression and take medication daily. I see a psychiatrist weekly. I am also a lawyer. I am part of profession with an alarmingly high suicide rate. An alarmingly high rate of substance use, particularly alcohol. I’ve been there. I get it. I also talk to many in the profession weekly who are currently struggling. Some have contemplated suicide. I ask them what they are afraid of. What’s holding them back from taking that first step forward towards the light. It’s almost always about loss. Loss of license. Loss of job. Loss of family. Interestingly however, the fear of loss is generally attached to disclosure of the problem and not the possible consequences of the problem itself. That is what we know as the “stigma of addiction.” A problem that cuts across demographics but is particularly powerful in the legal profession. We are strong. We are hard chargers. We are “thinkers” who can problem solve our way out of any situation without disclosure. We are not vulnerable.

I am here to tell you that that emotional vulnerability is a good thing in taking that first step to get help. Reaching out is not weakness, it’s courage. Asking questions as a friend or family member is not intrusive, it’s compassionate.

September is Suicide Prevention and Awareness Month. Be vulnerable. Be compassionate. Ask questions. Provide resources. Learn what your state Lawyers Assistance Program (LAP) has to offer. Learn what your local bar association has to offer.  Above all, talk! Talking is healing. Silence can be deadly.

 

Brian Cuban (@bcuban) is The Addicted Lawyer. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Probate Court Lacked Authority to Order “Chemical Castration”

The Colorado Court of Appeals issued its opinion in People in Interest of C.J.R. on Thursday, September 8, 2016.

Probate Court Authority—Chemical Castration—Medina Factors.

C.J.R. is a long-term patient at a state hospital, where he is treated for a form of psychosis. He has also engaged in “sexually inappropriate behavior” for some time. C.J.R. was treated for years with antipsychotic drugs. After a change in his drug therapy, his sexually inappropriate behavior worsened. As a result, a psychiatrist prescribed Depo-Provera by injection every 90 days. The use of Depo-Provera for this purpose is commonly called chemical castration. C.J.R. refused to take the drug voluntarily, and the People sought authorization from the Denver Probate Court to administer it involuntarily. The probate court authorized the involuntary administration of Depo-Provera and use of a nasogastric tube to administer other drugs. C.J.R. appealed.

In People v. Medina, the Colorado Supreme Court formulated a four-factor test that the People must satisfy before a court may order a patient to be forcibly medicated. Medina dealt with antipsychotic drugs. The court of appeals held that it does not apply to a request to involuntarily administer the synthetic equivalent of progesterone as part of the treatment for a mentally ill male patient at a state hospital for the express purpose of controlling his sexually inappropriate behavior.

In addition, the court found that even if the Medina test were applicable here, the People did not prove by clear and convincing evidence that the requirements of Medina were established because (1) there was not record support that there were no less intrusive alternative treatments available, and (2) C.J.R.’s need for treatment with medication was not sufficiently compelling to override “any bona fide and legitimate interest of the patient in refusing treatment.”

The part of the probate court’s order authorizing involuntary administration of Depo-Provera was reversed. That part of the order authorizing the use of a nasogastric tube to administer other medications was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Chief Justice Directive 12-03 Regarding Court Compensation of Expert Witnesses Amended

On July 21, 2016, Chief Justice Nancy Rice of the Colorado Supreme Court signed an amended version of CJD 12-03, “Directive Concerning Court Compensation of Expert Witnesses and Professionals Conducting Mental Health Evaluations, Sanity Evaluations, and Competency Evaluations,” effective July 1, 2016. The CJD was amended in conjunction with the establishment of the new Office of Respondent Parents’ Counsel. The experts covered by the CJD now fall within the purview of the Office of Respondent Parents’ Counsel, so the reference to C.R.S. § 19-3-607 was removed. The Office of Respondent Parents’ Counsel now has the related state funding and is statutorily responsible for payment of expert witnesses in these cases.

For the full text of the CJD 12-03, click here. For all of the Chief Justice Directives, click here.

Colorado Court of Appeals: Hearing Officer Erred in Ascribing Fault to Claimant for her Mental Health Disorders

The Colorado Court of Appeals issued its opinion in Mesa County Public Library District v. Industrial Claim Appeals Office on Thursday, June 16, 2016.

Unemployment Compensation Benefits—Mental Health Disorder.

Gomez worked for the Mesa County Public Library District (Library) for almost 25 years. In 2013, she began having performance issues and was placed on two successive performance improvement plans (PIPs). In September 2014, she was placed on a third PIP and told to produce a satisfactory organizational capacity report by October 7 or face additional disciplinary action, including discharge. She called in sick on that date, and again on October 9, and did not return to work again. On October 14, she submitted a doctor’s note advising that she was suffering from acute stress disorder and major depressive disorder. She was granted a request to remain off work for four to six weeks. The Library director terminated her on October 20, 2014 for failing to provide the organizational capacity report.

The hearing officer in her unemployment compensation benefits case determined that Gomez had become mentally unable to perform her job duties but found her “at fault” for becoming mentally unable to complete the report, and under C.R.S. § 8-73-108(5)(e)(XX), disqualified her from receiving benefits. On review, the Industrial Claim Appeals Office (Panel) adopted the hearing officer’s evidentiary findings but rejected as a matter of law the conclusion that Gomez was disqualified from receiving benefits because she was at fault for her own diagnosed mental disorders. It awarded her benefits under C.R.S. § 8-73-108(4)(j).

On appeal, the Library argued that the Panel substituted its findings of fact for those of the hearing officer. The Court of Appeals found that the Panel adopted the hearing officer’s findings of fact. The Court also rejected the Library’s contention that the evidence demonstrated that Gomez’s mental health disorder did not affect her ability to complete the report. The Court agreed with the Panel that the hearing officer erred in determining that Gomez was at fault for her nonvolitional conduct.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Mental Health Bill Vetoed; Restaurant Safety Bill Sent to Secretary of State Without Signature

On Thursday, June 9, 2016, Governor Hickenlooper vetoed SB 16-169, “Concerning Changes Related to the Seventy-Two-Hour Emergency Mental Health Procedure.” SB 16-169 would have made several changes to the procedures for 72 hour mental health holds for people who are dangerous to themselves or others, including allowing them to be detained in law enforcement facilities instead of hospitals. The governor vetoed the bill, citing concerns about due process protections for persons having mental health emergencies.

Governor Hickenlooper also sent a bill to the Secretary of State without a signature on Thursday. HB 16-1401, “Concerning the Regulation of Retail Food Establishments,” will become law at 12:01 a.m. on June 11, 2016, and will take effect on August 10, 2016. The bill increases the annual licensing fees paid by retail food establishments beginning January 1, 2017, with provisions for additional fee increases in 2018 and 2019. The bill also creates a new license for a limited retail food establishment that prepares or serves food that does not require time or temperature control for safety, provides self-service beverages, offers prepackaged commercially prepared food and beverages requiring time or temperature control or only reheating commercially prepared foods that require time or temperature control for safety for retail sale to consumers, and requires the CDPHE to ensure significant statewide compliance with the federal Food and Drug Administration’s voluntary National Retail Food Regulatory Program standards. Governor Hickenlooper cited concerns raised by county governments among his reasons for neither signing nor vetoing the bill.

For a complete list of Governor Hickenlooper’s 2016 legislative actions, click here.

Tenth Circuit: District Court Did Not Abuse Discretion by Denying Competency Based Stay of Habeas Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Ryder v. Warrior on Monday, January 11, 2016.

In 1999, James Ryder killed Daisy Hallum and her adult son Sam in a dispute over personal property. Mr. Ryder had been storing supplies at the Hallum residence for his upcoming move to the Yukon Territory, where he was planning to flee and live in the wild in order to avoid an impending apocalypse, but when he went to collect them the Hallums refused to give him his supplies so he murdered them. The State of Oklahoma charged him with two counts of first degree murder. Before trial, psychologist Dean P. Montgomery issued a report to Mr. Ryder’s trial counsel expressing his belief that Mr. Ryder suffered from a longstanding schizoid personality disorder and was incompetent to stand in his own defense. Mr. Ryder’s trial counsel did not inform the court of Dr. Montgomery’s conclusions, however, because based on his own interactions with Mr. Ryder counsel did not have a “good faith doubt” as to Mr. Ryder’s competency to stand trial.

Mr. Ryder was convicted on both counts. Before the penalty phase of the trial, Mr. Ryder’s counsel filed an application for determination of competency supported by Dr. Montgomery’s report. The trial court held a hearing outside the presence of the jury, and denied the request for a separate competency hearing, instead questioning Mr. Ryder. Mr. Ryder assured the court that he understood that he had been convicted of two counts of first degree murder and the state was pursuing the death penalty. He testified that he understood the purpose of mitigation evidence and did not want to present any, and informed the court that he had never been treated for mental illness. During this hearing, the court questioned Mr. Ryder’s counsel about the mitigation witnesses he wished to call. Mr. Ryder became upset and exclaimed that he did not want anyone to testify and did not want a second stage. He left the courtroom. After Mr. Ryder returned, the court ruled he was competent to stand trial and to waive his right to present mitigation evidence. Mr. Ryder’s counsel requested leave to present mitigation evidence anyway, arguing that Mr. Ryder had a Sixth Amendment right to effective representation. The court granted counsel’s request. Mr. Ryder was eventually given a sentence of life without parole for Sam’s death and the death penalty for Daisy’s.

On direct appeal to the OCCA, Mr. Ryder was represented by different counsel. Appellate counsel argued that the trial court erred in failing to make a proper competency determination prior to the sentencing phase and the trial counsel was ineffective for failing to apprise the court of Mr. Ryder’s competency issues before trial. The OCCA remanded to the trial court to determine whether a retrospective competency evaluation was feasible and, if so, to conduct the evaluation. The trial court determined it was feasible and held a retrospective competency evaluation. During voir dire, defense counsel told the jury that Mr. Ryder was on death row, and prospective juror asked the prosecutor about it. The court instructed the jurors that their only task was to determine whether Mr. Ryder was competent. During trial, defense counsel called one witness—Dr. Montgomery. Dr. Montgomery testified that he believed Mr. Ryder suffered from a serious delusional disorder under the schizophrenic group of disorders. The State called three witnesses, who all testified as to their interactions with Mr. Ryder and their perceptions of those interactions. The jury found Mr. Ryder had been competent at the time of his first trial. Mr. Ryder appealed to the OCCA, which affirmed. He then filed a motion for postconviction relief with the OCCA, which was denied, and petitioned the U.S. Supreme Court for certiorari, which was also denied.

Mr. Ryder then filed a habeas petition in the U.S. District Court for the Eastern District of Oklahoma. He raised eleven grounds for relief and asked that the petition be held in abeyance based on his incompetency. The district court ordered an evidentiary hearing and referred the matter to a magistrate judge for a determination of competency. After a court-ordered competency evaluation and its follow up, the state and defense counsel entered into a stipulation that each of their experts would testify that Mr. Ryder was not competent. The magistrate judge entered an order that Mr. Ryder was not competent, and the district court thereafter ordered an evidentiary hearing to determine whether Mr. Ryder was competent when the statute of limitations ran on his habeas proceedings. After a hearing, the court concluded that Mr. Ryder had failed to show he was incompetent when the statute of limitations ran. The district court subsequently entered an order denying habeas relief. The Tenth Circuit later granted a COA on three grounds, which are the subject of this appeal.

The Tenth Circuit first addressed the district court’s denial of a competency-based stay to the habeas proceedings. The Tenth Circuit noted that the Supreme Court recently determined that there is no right to competency during habeas proceedings, but district courts retain discretion to issue stays where proper. The Tenth Circuit noted that the merits of Mr. Ryder’s claims were adjudicated in the OCCA, and therefore were subject to the limits imposed in § 2254. The Tenth Circuit concluded the district court did not abuse its discretion in denying a competency based stay.

The Tenth Circuit next addressed the merits of Mr. Ryder’s habeas claims, noting that its review was constricted by AEDPA. In reviewing his ineffective assistance of counsel claim during the retrospective competency evaluation, the Tenth Circuit found that Mr. Ryder could not prove deficient performance, because his counsel’s strategic decisions were reasonable and well within the broad spectrum of competent representation. The Tenth Circuit thoroughly evaluated each of Mr. Ryder’s claims and denied relief as to each one. The Tenth Circuit similarly rejected Mr. Ryder’s ineffective assistance of trial counsel claims, thoroughly examining each one and denying relief.

The Tenth Circuit remarked that the tragic reality in this case is that Mr. Ryder’s untreated mental illness likely influenced his decision to withhold mitigating evidence from the jury, and the condition responsible for Mr. Ryder’s unwillingness to present mitigating evidence may have been the very evidence that could have persuaded the jury to have leniency. However, the Tenth Circuit could only presume that Mr. Ryder’s mental condition had not yet deteriorated to the point of incompetency by the time he made the decision to withhold mitigating evidence from the jury.

The Tenth Circuit affirmed the district court.