June 19, 2018

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

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

Dependency and Neglect—Recusal—Disqualification.

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

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

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

Summary provided courtesy of Colorado Lawyer.

HB 17-1132: Establishing Statutory Procedure for Judicial Disqualification

On January 30, 2017, Rep. Paul Lundeen and Sen. Bob Gardner introduced HB 17-1132, “Concerning Judicial Disqualification in Civil Actions.”

Currently, under the Colorado rules of civil procedure, a party may file a motion and affidavit to disqualify a judge for specified reasons. The bill establishes the process in statute and specifies the reasons why a judge may be disqualified. The bill adds to the process requirements that:

  • The motion must be filed within certain time frames; and
  • If the judge who is the subject of the motion does not immediately grant the motion, the issue is referred to the chief judge of the court or, if the judge is a chief judge, a chief judge of an adjoining jurisdiction.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 21, 2017, at 1:30 p.m.

Tenth Circuit: No Error for Court to Find One Side’s Expert Witnesses More Persuasive

The Tenth Circuit Court of Appeals issued its opinion in Mathis v. Huff & Puff Trucking, Inc. on Tuesday, June 2, 2015.

Melvin Mathis was injured in February 2008 when the car he was driving was struck by a Huff & Puff truck driven by Donald Stewart. Mr. Stewart was at fault for the accident; he was driving too fast for the icy road conditions and the truck he was driving should not have been in the left lane. Mr. Mathis was awake and alert after the accident. He was transported by ambulance to a local hospital, where the emergency room doctor found no evidence of head trauma but diagnosed him with neck and back strains. Mr. Mathis sought further treatment from Dr. Schulze, who conducted MRIs of his back and neck and noted Mr. Mathis suffered multiple areas of sprain to his spine from the collision. Dr. Schulze referred Mr. Mathis to Dr. Cook, a neurosurgeon, because the accident had aggravated Mr. Mathis’s preexisting disc lesions. Dr. Cook treated Mr. Mathis non-surgically for several months and Mr. Mathis stopped treatment in May 2009.

Mr. Mathis returned to Dr. Cook’s office in April 2011 where he saw a different doctor, Dr. Beer. In the interim, Mr. Mathis had worked as a nighttime fuel delivery person, where he performed physically demanding tasks and was under no work restrictions. When he first evaluated Mr. Mathis, Dr. Beer performed repeat MRIs of his spine, which were essentially unchanged from those taken in 2008. Dr. Beer performed fusion surgery on Mr. Mathis’s spine to relieve his chronic pain.

In February 2012, Mr. Mathis filed this negligence action in federal district court, and an eight day bench trial was held in July 2013. Mr. Mathis alleged the accident caused permanent injuries to his spine, a mild traumatic brain injury (MTBI), emotional distress, and pain and suffering. The district court heard conflicting testimony regarding the extent of Mr. Mathis’s injuries. The district court issued findings of fact and conclusions of law, rejecting Mr. Mathis’s claims that his spine was permanently injured by the accident and that he suffered an MTBI, and awarding Mr. Mathis damages for reasonable out-of-pocket medical expenses, past emotional distress, pain and suffering, loss of enjoyment of life, and loss of income.

Two weeks after trial, Mr. Mathis’s counsel learned that the judge’s law clerk’s husband was retained by AIG to monitor the proceedings. After learning about the law clerk’s relationship, Mr. Mathis’s counsel filed a motion for a new trial and a motion to alter or amend the judgment, arguing the evidence did not support the district court’s ruling that Mr. Mathis suffered no MTBI and only minor spinal injuries; the court erroneously relied on the testimony of a biomechanical engineer; the law clerk had an undisclosed conflict of interest; and the judgment should be amended or altered to correct an inadequate damages award based on the trial court’s errors. When these motions were denied, Mr. Mathis appealed.

The Tenth Circuit first evaluated Mr. Mathis’s claims that the district court erroneously concluded he suffered only mild spinal injuries and no MTBI. Evaluating for clear error, the Tenth Circuit found that trial evidence supported the court’s conclusion that the spinal injuries were not significant. The court evaluated conflicting evidence from medical records, expert testimony, and lay witness testimony, and determined that Mr. Mathis’s spinal sprains resolved in approximately mid-2009. Although Mr. Mathis pointed to testimony contrary to the court’s finding, this does not imply clear error since such cases generally have conflicting testimony and the court’s duty is to sift through the competing narratives. The Tenth Circuit similarly found no clear error in the trial court’s finding that Mr. Mathis did not suffer an MTBI, since it weighed the evidence and determined that the defense evidence was more persuasive.

Next turning to Mr. Mathis’s criticisms of the biomechanical engineer, Dr. Hayes, the Tenth Circuit noted that Mr. Mathis failed to preserve his objections to Dr. Hayes’s testimony and therefore it would only evaluate for plain error. Mr. Mathis challenged only whether Dr. Hayes’s testimony exceeded the scope of his expertise. Defendants argued Mr. Mathis forfeited any objection because he failed to object to the defense’s pre-trial witness statement and did not object during the questioning of Dr. Hayes at trial. The Tenth Circuit agreed.

The Tenth Circuit turned then to Mr. Mathis’s motion for a new trial. Mr. Mathis argued the judge should have recused after the law clerk’s husband was retained by AIG to monitor the trial, averring the relationship created a conflict under Canon 3(F) of the Code of Conduct for Judicial Employees. The Tenth Circuit found no abuse of discretion by the district court because there was no actual conflict under Canon 3(F) and no appearance of impropriety. Canon 3(F) specifies that law clerks should not perform any official duties in cases in which their spouse has a financial interest, is acting as a lawyer in the proceeding, or has an interest that could be affected by the outcome of the proceeding. In this case, the husband had no financial or other interest in the outcome of the proceeding and was not acting as a lawyer for a party, but was merely retained by defendants’ insurer to monitor the proceedings. As to the appearance of impropriety, the law clerk informed the judge of her relationship prior to the first day her husband monitored the court proceedings. After that, the judge conducted all her own research and wrote the opinion by herself. Although the Tenth Circuit noted the better approach would have been for the judge to inform the parties of the relationship and for the clerk to stop attending the trial, there was no impropriety in the handling of the proceedings.

The district court’s judgment was affirmed.

Colorado Court of Appeals: Judge’s Remarks Do Not Display Deep-Seated or Unequivocal Bias Against Defendant

The Colorado Court of Appeals issued its opinion in People v. Dobler on Thursday, March 12, 2015.

Sentencing Judge—Bias—Plea Agreement.

While on probation for a separate felony conviction, defendant sped through an accident scene, hitting and killing a tow truck driver. Defendant then fled, only to be apprehended by police several blocks away. Defendant pleaded guilty to vehicular homicide and leaving the scene of an accident involving death in exchange for the dismissal of charges of aggravated motor vehicle theft, violation of bail bond conditions, driving under the influence, evading or circumventing an ignition interlock device, reckless driving, and violation of a protective order. The sentencing court sentenced defendant to forty-eight years in the custody of the Department of Corrections (DOC), the maximum sentence available under his plea agreement.

On appeal, defendant argued that his constitutional right to have an impartial judge determine his sentence was violated. Defendant was sentenced to four years in the DOC by the same judge in the earlier felony case. After defendant completed a year in the DOC and successfully completed the DOC’s boot camp program, the court reviewed his sentence and placed him on intensive supervised probation. During a hearing on a related matter and at sentencing for this case, the judge made comments about how he felt guilty because a man was dead after he reconsidered defendant’s sentence. The Court of Appeals rejected defendant’s argument that reversal was required because the judge was biased. First, defendant’s failure to file a motion to disqualify waived his argument that the sentencing judge should have recused himself based on an appearance of partiality. Second, defendant did not establish actual bias requiring disqualification of the sentencing judge.

Defendant further contended that the sentencing court abused its discretion by imposing the maximum aggravated sentence on each count and ordering the sentences to run consecutively. Because the sentence imposed was within the range agreed on by the parties pursuant to a plea agreement, defendant was precluded from challenging the propriety of his sentence on appeal. The sentence was affirmed.

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

Colorado Court of Appeals: Advising Person Not to Talk to Police Is Not Witness Tampering

The Colorado Court of Appeals issued its opinion in People v. Nozolino on Thursday, July 31, 2014.

Witness Tampering—Evidence—Protected Speech—Recusal.

In 2001, someone fired shots into the home of Nozolino’s ex-wife’s divorce attorney. Later that year, shots were fired into the home of Judge Gilbert Martinez of the Fourth Judicial District, who presided over portions of Nozolino’s divorce case. In 2002, the divorce attorney was shot in the face. In 2008, a man who allegedly had an affair with Nozolino’s ex-wife was fatally shot outside his home. Nozolino instructed numerous witnesses regarding these incidents not to cooperate or communicate with the police or provide any testimony. Based on these communications, the grand jury indicted Nozolino on five counts of witness tampering.

On appeal, Nozolino contended that there was insufficient evidence to support his convictions for counts 4 and 5, the witness tampering counts related to his mother and brother. The prosecution must present evidence that the defendant attempted to induce a witness either to testify falsely or to unlawfully withhold testimony. Nozolino sent an e-mail to his mother and brother recommending that they not cooperate with the police. Standing alone, the e-mails neither advise nor advocate unlawful withholding of testimony. Accordingly, Nozolino’s convictions for witness tampering with respect to counts 4 and 5 were vacated.

The Court of Appeals found that the witness tampering statute is facially constitutional. Therefore, Nozolino’s argument that the witness tampering statute is unconstitutional and infringes on his right to free speech failed.

Nozolino contended that his distribution of pre-printed statements to witnesses Feller and Shrecengost to invoke their right not to testify is akin to the public leafleting and is protected speech. However, Nozolino’s actions were not directed to the general public, did not occur in a public forum, and did not address issues of general public concern. Rather, Nozolino’s pre-printed statements were targeted at specific individuals, were distributed privately, and concerned matters of self-interest. The preprinted statements attempted to induce the witnesses to unlawfully withhold testimony in violation of the witness tampering statute. Therefore, they fall within the proscriptions of the witness tampering statute and the statute is not unconstitutional as applied to Nozolino.

Finally, the district court did not err in finding that the jury instruction regarding disrupting a lawful assembly did not “fit the facts of the case at all.” The judgment was affirmed in part and reversed in part, and the case was remanded to the district court with directions to enter judgment of acquittal on counts 4 and 5.

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

Colorado Court of Appeals: Defendant Knowingly, Intelligently, and Voluntarily Waived Right to Counsel Despite Lack of Arguello Advisement

The Colorado Court of Appeals issued its opinion in People v. Schupper on Thursday, July 3, 2014.

Indigent—Court-Appointed Counsel—Right to Counsel—Advisement—Recusal—Bias.

On September 7, 1995, defendant was charged with a single count of felony theft. After numerous hearings on defendant’s claim that he was indigent and had requested court-appointed counsel, defendant’s request ultimately was denied. He represented himself at trial and was found guilty of theft.

On appeal, defendant contended that the trial court erred when it determined he was not entitled to court-appointed counsel based on the collection investigator’s report. The Court of Appeals affirmed the trial court’s judgment.

First, defendant did not meet his burden to prove he was indigent. Second, the trial court’s finding that defendant “lived a luxury lifestyle” was supported by the evidence introduced at numerous hearings over a period of six months. Therefore, the trial court did not abuse its discretion in determining that defendant was not entitled to court-appointed counsel.

Defendant next contended that the court erred by failing to provide him an express advisement concerning his right to counsel before forcing him to proceed pro se at trial. The trial court never gave defendant an express advisement of his rights after it decided defendant was not entitled to court-appointed counsel. The record establishes that defendant knew of his right to counsel, his right to court-appointed counsel if he was indigent, and the importance of having counsel. Also, defendant is highly educated, and he understood the charges against him and the possible penalties from those charges. Defendant demonstrated that he understood his Fifth Amendment right to remain silent, as well as his right to subpoena and confront witnesses. Based on the totality of these circumstances, defendant knowingly, intelligently, and voluntarily waived his right to counsel.

Defendant further contended that Judge Schwartz erred in denying his repeated requests for recusal based on the court’s alleged bias. Rulings of a judge, including an indigency determination, are not sufficient in themselves to show bias or prejudice. Additionally, although Judge Schwartz may have been a material witness in the perjury cases against defendant, the case would not be heard in his court. Therefore, it was not err for the court to deny defendant’s request for recusal. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Lawsuit Properly Dismissed for Untimeliness, Failure to State a Claim, and Issue Preclusion

The Tenth Circuit Court of Appeals issued its opinion in Knight v. Mooring Capital Fund, LLC on Tuesday, April 22, 2014.

In 2010, the Tenth Circuit decided two appeals involving claims and cross-claims between, on one side, Judy Knight and her company Phoenix Central Inc., and, on the other side, Mooring Capital Fund, LLC. Two years later, Knight filed a new suit in Oklahoma state court on behalf of herself, Phoenix, and another of her companies, Mini Malls of America. The defendants were Capital and Financial and individuals associated with them, including Financial’s Chief Executive Officer, John Jacquemin, and unnamed “Counsels and Agents of Defendants.” Capital, Financial, and Mr. Jacquemin removed the litigation to federal district court, and moved to dismiss with prejudice. Knight responded and filed a first amended complaint that named as additional defendants the law firm and individual lawyers who represented Capital and Financial in the earlier proceedings. Capital, Financial, and Mr. Jacquemin then moved to dismiss the first amended complaint with prejudice, and the court granted the motion, citing claim preclusion, the statute of limitations, and F.R.C.P. 12(b)(6). The next day, Knight filed a motion to remand to state court, which was denied as moot; next, she filed an F.R.C.P. 59 motion to vacate, alter, or amend the district court’s motion, which was also denied; thereafter, she sent an email seeking the district court judge’s recusal. The court ordered the email to be filed and denied the recusal.

The Tenth Circuit affirmed, noting that the removal of the case to federal court was proper, some of Knight’s claims were untimely, others failed to state a claim or were barred by issue preclusion (not claim preclusion), and her request for recusal was untimely.

Judge Not Disqualified from Foreclosure Actions Due to His Interest in PERA

The Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2013-03 on Wednesday, July 10, 2013.

The opinion discusses whether a judge must disqualify himself from two C.R.C.P. 120 foreclosure actions because of his interest in the Public Employees Retirement Association (PERA). The motion requesting the judge to disqualify himself alleged that because PERA held investments in the foreclosing banks, and has an economic interest in litigation involving mortgage-based securities.

The Judicial Ethics Advisory Board opined that the judge need not recuse, because he has at most a de minimus interest in the outcome of the proceedings through PERA, he does not have actual bias or prejudice regarding the parties, and does not have a disqualifying interest in the foreclosing bank.

For the full text of the opinion, click here. For all of the Colorado Judicial Advisory Board opinions, click here.