August 20, 2019

Archives for May 3, 2011

Judge Kathleen K. Hearn to Retire from Pueblo County Bench

The Tenth Judicial District Nominating Commission will meet on Tuesday, June 14, 2011, at the Pueblo Combined Courthouse to interview and select nominees for appointment by Governor Hickenlooper to the office of county judge for Pueblo County.  The vacancy will be created by the retirement of the Honorable Kathleen K. Hearn on July 1, 2011.

Eligible applicants for appointment to fill the vacancy must be a qualified elector of Pueblo County and must be admitted to the practice of law in Colorado. The application deadline is Tuesday, May 24, 2011. The appointed county court judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve four-year terms.

Further information about the retirement of Judge Hearn and applying for the vacancy will be available from the Colorado Judicial Branch.

No Colorado Supreme Court Opinions: Week of May 1, 2011

There are no new cases to report.

Tenth Circuit: Petitioner Had Notice of Prosecution Seeking Death Penalty; Imposition of Death Sentence Did Not Amount to Double Jeopardy

The Tenth Circuit Court of Appeals issued its opinion in Selsor v. Workman on Monday, May 2, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court’s denial of his habeas petition. Petitioner raised seven issues on appeal, all of which were rejected:

  1. “Whether a state appellate ruling allowing the prosecution at his retrial proceedings to seek the death penalty against him violated his due process rights.” The Court determined that Petitioner was afforded adequate notice of the prosecution’s intent to seek the death penalty at his 1998 retrial proceedings. Therefore, Petitioner was able to utilize the adversary process to challenge the constitutionality of the prosecution’s action.
  2. “Whether the imposition of the death penalty at his retrial proceedings violated his rights under the Double Jeopardy Clause.” In Petitioner’s first trial, the reduction of his death sentence to a term of life imprisonment did not “acquit” him of the death sentence. As such, the imposition of the death sentence now does not amount to a double jeopardy violation.
  3. “Whether the state trial court violated his constitutional rights at the retrial proceedings by instructing the jury as to the elements of a post-crime first degree murder statute, rather than the elements of the pre-crime first degree murder statute under which he was originally charged.” The Court found that the state trial court’s instructional error did not invalidate the “avoid arrest aggravator” to his robbery charge, and accordingly did not have a substantial and injurious effect on the jury’s findings.
  4. “Whether the imposition of the death penalty at his retrial proceedings violated his rights under the Equal Protection Clause.” According to Petitioner, the relevant comparison group for purposes of his equal protection claim includes all Oklahoma state defendants convicted of murders occurring between May 17, 1973 and July 24, 1976, among which he alone was sentenced to death. However, the Court determined that a more narrow construction of the “similarly situated” test was appropriate, and found that Petitioner “was not similarly situated to the identified group because of his successful federal habeas action and subsequent retrial.”
  5. “Whether the prosecution acted vindictively, in violation of his due process rights, by seeking the death penalty at his retrial proceedings.” The Court determined that the factors leading to Petitioner’s claims of vindictive prosecution were not presented to the original court of appeals, and that court’s determination against Petitioner was reasonable.
  6. “Whether the penalty phase of his retrial proceedings was rendered fundamentally unfair by prosecutorial misconduct.” The Court found that the prosecution’s statements during the penalty phase were not manipulations or misstatements of evidence and testimony and did not impact Petitioner’s right to a fair sentencing hearing.
  7. “Whether the admission, during the penalty phase of the retrial proceedings, of testimony from the victim’s family members regarding the appropriate sentence violated his rights under the Eighth Amendment.” The Court concluded that “the challenged statements by [the victim’s family] did not expressly refer to [Petitioner] being put to death; instead, they both simply stated without embellishment they agreed with the prosecution’s ‘recommended sentence.'” This improper evidence, however, did not have an actual impact on the sentence.

Tenth Circuit: If Requirement to Register as Sex Offender is Constitutional, Congress Has Authority to Enforce Compliance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Yelloweagle on Monday, May 2, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was previously convicted of a federal sex offense. All sex offenders, regardless of whether their convictions are based on federal or state law, are required to register; under federal law, an enforcement provision provides that the failure to register or update a registration constitutes a new federal crime. Petitioner failed to register as required and was indicted by federal authorities under the enforcement provision. Before the district court, Petitioner moved to dismiss, arguing that “no provision of the Constitution authorizes Congress to require all sex offenders to register,” and therefore “he could not be punished for failing to comply with the requirement.” Additionally, he argued that “even if the registration requirement was valid, . . . the criminal enforcement provision also lacked a jurisdictional basis and therefore was unconstitutional.” The district court denied his motion to dismiss. In Petitioner’s opening brief on appeal, he nowhere mentions the constitutionality argument, and focuses entirely on Congress’ lack of power to criminalize the failure to register under the enforcement provision. Petitioner’s omission forced the Court to conclude that he has abandoned his constitutional challenge to the registration requirement. In doing so, the Court must assume that the registration requirement is constitutional, and that “the criminal statute enforcing compliance with that requirement is a valid exercise of congressional authority under the Necessary and Proper Clause.”

Hickenlooper Signs Senate Bill 128 Requiring Child-Only Health Insurance Plans

Last week, Governor John Hickenlooper signed SB 11-128 – Concerning requiring a carrier that participates in the individual health insurance market in Colorado to issue child-only plans on a guaranteed-issue basis and making an appropriation in connection therewith. The bill was sponsored by Sen. Linda Newell, D-Littleton, and Reps. Beth McCann, D-Denver, and Ken Summers, R-Lakewood.

The bill establishes Child-Only Health Insurance Plans in Colorado by requiring all insurance carriers selling individual health benefit plans in the state to provide at least one child-only health benefit plan for children.

The full text of the bill can be found here.

For a complete list of Governor Hickenlooper’s 2011 legislation decisions click here.