August 25, 2019

Archives for August 19, 2010

Tenth Circuit: Opinions, 8/19/10

Nominees Selected for Colorado Court of Appeals Vacancy

The Supreme Court Nominating Commission has nominated three candidates to fill the vacancy on the Colorado Court of Appeals left by the Hon. Sean Connelly, who will not stand for retention. The vacancy will occur on January 11, 2011.

Under the Colorado Constitution, Governor Ritter has fifteen days from August 17, 2010, to appoint one of the candidates to the position on the court. Comments regarding the the nominees may be sent via email to the governor.

As reported by Law Week Colorado, the three nominees are:

  • Maria Teresa “Terry” Fox, an attorney in the civil division of the U.S. attorney’s office. Fox was appointed last year to the Colorado School of Mines Board of Trustees by Governor Ritter.

M. Terry Fox of Wheat Ridge is currently an Assistant U.S. Attorney in the United States Attorney’s Office for the District of Colorado, where she has been since August 2004. Ms. Fox serves as trial counsel to federal agencies and employees, and her caseload consists of environmental issues (30%); tort litigation (30%); constitutional claims (10%); administrative, habeas, and other civil actions (10%); and affirmative civil enforcement actions (20%). Prior to this position, Ms. Fox was an attorney with the Colorado Attorney General’s Office (1999-2004), an associate with Holland & Hart LLP (1994-1999), and a clerk for Justice Craig Enoch on the Texas Supreme Court (1993-1994). Ms. Fox’s community involvement includes serving on the Colorado School of Mines Board of Trustees (2009-present), the Colorado Supreme Court’s Attorney Regulation Committee (2005-present), and serving as an American Marshall Memorial Fellow (2003). Ms. Fox earned a B.S. from the Colorado School of Mines (1989) and a J.D. from South Texas College of Law (1993).

  • Blain David Myhre, of Isaacson Rosenbaum. Myhre has been previously considered twice for the position on the court in 2008.

Blain David Myhre of Centennial has been of shareholder of Issacson Rosenbaum P.C. since 2001, and he was an associate at the firm from 1996 to 2000. In his current practice he is an appellate litigator in state (80%) and federal (20%) appellate courts. Mr. Myhre’s appellate practice involves criminal and civil appeals. His non-appellate practice consists of civil litigation, including commercial, constitutional, civil rights, election law, real estate, and land use litigation. Mr. Myhre’s previous experience has included practice in the following areas: employment, administrative, special districts, land use, probate, landlord/tenant, criminal defense, and post-conviction proceedings. Mr. Myhre’s community involvement includes: City of Centennial Board of Adjustments; Colorado Lawyer’s Committee, Children’s Task Force; Health Care Reform Task Force; Denver Bar Association Muscular Dystrophy Association Lock-Up; Kaps for Kendall; 81 Squares; Race For The Cure; and Colfax Community Action Network. Mr. Myhre received his B.A. from the University of Virginia (1987) and his J.D. from the University of Colorado School of Law (1993).

  • Patrick T. O’Rourke, general counsel for the University of Colorado. O’Rourke led the university’s legal efforts to fire controversial professor Ward Churchill and was considered for a position on the court in 2008.

Patrick Terrence O’Rourke of Highlands Ranch currently works as the Managing Associate University Counsel for the University of Colorado, where he has been since October 2005. In this position, he is responsible for conducting and coordinating all of the litigation commenced against the University of Colorado in state and federal courts. Prior to this, Mr. O’Rourke worked for the law firm of Montgomery Little & McGrew, P.C. in Greenwood Village (1995-2005). Mr. O’Rourke is currently a member of the Colorado Defense Lawyers Association and the National Association of College and University Attorneys. He has also served as a member of the Colorado Bar Association Ethics Committee (2001-2004). Mr. O’Rourke received his B.A. from Creighton University (1992) and his J.D. from Georgetown University (1995).

The Colorado Judicial Branch press release can be found here.

Tenth Circuit: Opinions, 8/18/10

The Tenth Circuit on Wednesday issued four published opinions and one unpublished opinion.


In In re: Grand Jury Proceedings, the Court affirmed the district court’s decision in a redacted opinion. Appellant’s claims of prosecutorial misconduct before the grand jury were denied for lack of jurisdiction, as well as Appellant’s requests for pre-indictment remedies. Additionally, “Appellant’s challenge to the district court’s order directing [an attorney] to produce billing records for in camera review” was dismissed as premature. Lastly, the Court affirmed the district court’s decision to order the attorneys to answer questions before the grand jury, as it would not violate attorney-client privilege.

In In re: Grand Jury Proceedings, the Court reversed the district court’s decision to review evidence in camera and to allow for redaction of other evidence. In determining the relevancy of evidence, “the district court committed a legal error by redefining the categories of material sought by the Government in order to assess relevancy and further engaging in a document-by-document and line-by-line assessment of relevancy.” Relevancy should be calculated in a more “relaxed, categorical,” and broad approach, as opposed to the district court’s “much more exacting assessment.”

In Mountain Highlands, LLC v. Hendricks, the Court affirmed the district court’s grant of summary judgment for Respondents. Petitioner, forced into reorganization and bankruptcy due to a lengthy title dispute, alleged that Respondents breached the covenant of good faith and fair dealing as well as interfered with a prospective economic advantage. However, the Court found that there was no contractual relationship between the parties to give rise to such a covenant and duty, and that Respondents did not intend to interfere with Petitioner’s negotiations, nor even knew of them.

In American Atheists v. Duncan, the Court reversed the district court’s grant of summary judgment to Respondents. Beginning in 1998, the Utah Highway Patrol Association began erecting a number of twelve-foot high crosses on public land to memorialize fallen troopers. The crosses bear the Utah Highway Patrol official symbol. The Court found that the memorials “have the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion” in violation of the Establishment Clause.


Rizzuto v. Wilner