August 24, 2019

Archives for February 2011

CJA Panel Attorneys and Other Service Providers Receiving Temporary Suspension of Payments

The current budget crisis in Washington and the fast approaching expiration of federal funding is beginning to have consequences in Colorado. Criminal Justice Act payments to panel attorneys and other service providers have been suspended until March 7, 2011. Friday, March 4, marks the end date of the current continuing resolution (CR) that is funding the federal government. As soon as Congress acts to pass a new resolution providing funding for the services, payments will resume.

According to an email from the Office of Defender Services, panel attorneys and service providers should continue to submit vouchers and courts will continue to process them by entering them into the CJA payment system. Once Congress makes additional funding available, payments will be made in the order in which they were entered into the payment system.

However, as it is uncertain what Congress will do at the expiration of the CR and when a full-year FY 2011 appropriation will be finalized, it is likely that there may be more suspensions of payments in the near future.

Read more from the email posted by the 10th Circuit.

Tenth Circuit: Opinion, 2/25/11

The Tenth Circuit on Friday issued one published opinion and two unpublished opinions.

Published

In United States v. Davis, the Court affirmed the district court’s decision and sentence. Petitioner was arrested during a Kansas traffic stop after a search of his rental car revealed a bag containing cocaine. Prior to trial, the government gave Petitioner notice that it intended to use two prior convictions to enhance Petitioner’s sentence, though it listed a wrong case number in reference to one of the convictions. The other case did not not qualify for sentencing enhancement, but was used to show motive in the case. Despite Petitioner’s claims, the Court determined that the search of his vehicle was voluntary and there was reasonable suspicion to detain him, Petitioner was not prejudiced by the listing of the wrong case number, and the evidence of another, similar crime was admissible to show motive or intent.

Unpublished

United States v. Makanjuola

United States v. Harrison

State Judicial Issues Revised Forms and Lists, Including Small Claims, Domestic/Family, and Probate

The Colorado State Judicial Branch has issued revised forms, instructions, and lists, including those concerning small claims and garnishments/money demands, probate, domestic and family law, and issuing a subpoena. The new forms were posted today and practitioners should begin using them immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download templates from State Judicial’s individual forms pages, or below.

County Civil/Small Claims

  • JDF 108 – “Pattern Interrogatories Under CRCP 369(g) – Business” (revised 2/11)
  • JDF 253 – “Request to Set Aside Dismissal/Default Judgment” (revised 2/11)

Miscellaneous

  • JDF 79 – “Instructions for Issuing a Subpoena” (revised 2/11)

Probate

Domestic/Family

HB 11-1095: Security for the Secretary of State’s Online Business Filing System

On January 20, 2011, Rep. B.J. Nikkel, R-Estes Park, and Sen. Kevin Lundberg, R-Loveland, introduced HB 11-1095 – Concerning security of the information filed on behalf of an entity with the secretary of state’s on-line business filing system, and making an appropriation therefor.

Under the bill, the Secretary of State would be directed to implement a password-protected system for any filings, updates, or other filing requirements in order to ensure the security of the Secretary’s on-line business filing system. The system should take appropriate actions to address fraudulent activities against altering data within the filing system, while still allowing for access and retrieval of publicly available records without requiring a password, including a certificate of good standing. The bill appropriates $360,956 cash funds and 1.0 FTE for the implementation of the system.

The bill passed out of the State, Veterans, & Military Affairs Committee on February 3, and passed out of the Appropriations Committee on February 18. The bill passed its third reading in the House on February 22.

Williamson v. Mazda Motor of America: Reviving Seatbelt Tort Claims in State Court

Last week, in Williamson v. Mazda Motor of America, Inc., the Supreme Court of the United States reversed a California decision and made product liability actions involving the failure to install inner-seat lap/shoulder-combination seatbelts available once again in state courts. In a unanimous decision, the Court held that implied preemption did not apply, and distinguished the case from Geier v. American Honda Motor Co. (2000).

In Geier, state law stood as an obstacle to the accomplishment of a significant federal regulatory objective: giving manufacturers a choice among different kinds of passive restraint systems. The Department of Transportation (DOT) had long thought it important to leave manufacturers with a choice of systems, and federal regulations, designed to protect that industry choice, preempted conflicting state law.

However, the Court in Williamson found that while the California tort suit would similarly restrict industry choice by alleging a manufacturer should have installed a particular restraint system, the choice in this case was not a significant regulatory objective. DOT rejected a regulation requiring lap/shoulder-combination seatbelts in rear seats in 1984 due to consumer acceptance concerns. But by 1989, changed circumstances led DOT to require manufacturers to install such seatbelts for rear outer seats but to retain a manufacturer choice for rear inner seats. DOT thought that the same requirement for inner seats would not be cost effective, a much different regulatory analysis than seeking to spur development of alternative safety devices in Geier. Cost-effectiveness alone cannot show that DOT sought to forbid common-law tort suits and, therefore, preemption does not apply to such cases.

Colorado Court of Appeals: Week of February 20, 2011 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and 37 unpublished opinions for the week of February 20, 2011.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Thanks for a Great Year… And Check out Our Redesign

This week, we unveiled a whole new look for CBA-CLE Legal Connection. If you subscribe to the site by email or RSS and haven’t stopped by yet, take a look and let me know what you think. We’ve given you all new ways to access our daily posts and archives, whether you’re looking for information by type (case law, legislation, etc.), by practice area, or by timeliness.

But it wasn’t until right after we launched the new design that it dawned on me: it’s been a year since we launched the site.

A year and around 775 posts ago, we started this because we wanted a timely and effective way to share the non-stop flow of relevant legal updates we were finding in the course of our program planning, book editing, and everyday conversations with the hundreds of Colorado lawyers who flow in and out of our classroom each week. Today, we continue to share that information, but we also stay connected to key government, judicial, and news sites to alert you to important changes–like revised state judicial forms, updated court rules, and new regulations–as they happen. Loyal readers know we also share select forms and materials pulled right from our books and course materials. This redesign is just one more way we’re trying to make practice-relevant information even more accessible to Colorado lawyers.

Thanks to you, our readers, for showing up, for sharing tips, and for making this a memorable and productive year.

Feedback? Questions? Comment below, email me (agerkman@cobar.org), call me (303-824-5332), or just stop by the next time you’re here for a CLE program or a CBA meeting.

Tenth Circuit: Opinions, 2/24/11

The Tenth Circuit on Thursday issued one published opinion and no unpublished opinions.

Published

In Scottsdale Ins. Co. v. Tolliver, the Court affirmed the district court’s decision. Petitioners’ dwelling, insured by Respondent, was destroyed by fire. Due to misrepresentations by Petitioners, Respondent did not cover the claim and, after extensive litigation, sought attorney fees, which the district court granted. Petitioners claim that the grant of attorneys fees was improper as the Oklahoma statute allowing such fees is in conflict with FCRP 68, and therefore in violation of Erie. However, the Court found that no such conflict exists here. Rule 68 was applicable to Respondent when it made its offer of judgment during trial, but became inapplicable when judgment was made in its favor. Oklahoma law then governed as the applicable substantive law entitling Respondent to attorney fees.

Tenth Circuit: Opinions, 2/23/11

2010 Colorado Health Insurance Report Released by DORA

The Commissioner of Insurance’s 2010 Annual Health Insurance Report was released on Tuesday and contains information about the present state of health insurance in Colorado, including the cost of health insurance and the factors that drive the cost of health insurance premiums on an individual and group basis.

The report identifies where insured Coloradans get their health insurance, whether the number of uninsured residents is going up or down, and how Colorado compares statistically with the rest of the country.

The full report can be found here.

SB 11-123: Technical Changes to Child Support Procedures

On January 31, 2011, Sen. Joyce Foster, D-Denver, and Rep. Ken Summers, R-Lakewood, introduced SB 123 – Concerning technical changes to child support procedures. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill:

  • Clarifies that a court shall not order genetic testing for a father whose paternity has been determined by another state, but the court may stay a proceeding for the father to pursue a nonparentage claim in another state. Additionally, the bill clarifies that a delegate child support enforcement unit shall not order genetic testing for a father whose paternity has been determined by another state.
  • Requires the parties in certain proceedings to provide social security numbers for themselves and for their children at the commencement of the proceedings;
  • Requires certain employer income-withholding payments to be processed through the Colorado family support registry and includes a statutory reference to those orders in the statute concerning the family support registry;
  • Clarifies the terminology for the type of costs that are reimbursed through the assignment of child support rights in foster care cases and removes obsolete language relating to the criteria for the assignment of child support rights to conform with current federal law;
  • Adds a reference to temporary assistance to needy families in the definition of child support debt as a type of public assistance that a family may be receiving;
  • Clarifies in the notice of financial responsibility for child support that an objection to paternity that was determined pursuant to the laws of another state must be resolved in the state where paternity was determined; and
  • Clarifies that a delegate child support enforcement unit may enter temporary orders relating to child support if paternity has been determined by another state.

The bill passed the Senate on February 16.

Since this summary, the bill was introduced in the House on February 21 and assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

SB 11-116: Business Fiscal Impact of Newly Introduced Legislation or Proposed Rule-Making

On January 31, 2011, Sen. Shawn Mitchell, R-Broomfield, and Rep. Andy Kerr, D-Lakewood, introduced SB 116 – Concerning business fiscal impact statements. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the staff of the legislative council to designate a 5-day period following the introduction of new legislation or the notice of proposed rule-making. During the 5-day period, Colorado businesses may submit comments regarding the new legislation’s or new rule’s business fiscal impact. Upon the expiration of the 5-day period, the staff of the legislative council is required to compile and summarize the comments and prepare a business fiscal impact statement. For legislation, the statement will accompany the fiscal note. For rules, the statement will be forwarded to the executive director of the principal department seeking to promulgate the rule and posted on the staff of the legislative council’s official web site. Assigned to the State, Veterans & Military Affairs Committee.

Summaries of other featured bills can be found here.