August 24, 2019

Archives for May 18, 2011

New Director Named at Secretary of State’s Business and Licensing Division

This week, Colorado Secretary of State Scott Gessler announced that Michael Hardin will be the new Director of the Business and Licensing Division at the Secretary of State’s office.

Most recently, Hardin served as CEO of Paradigm Services, LLC, tasked with developing and implementing organizational policies and programs. Prior to that position, he served as Vice President of Operations for ELM Locating and Utility Services in Golden, and as Senior Director at Utiliquest in Denver. Hardin also served nearly a decade in the U.S. Army as a Quartermaster Officer, managing at the Division and Battalion levels. Hardin’s last assignment was as a Battalion Operations Officer for a multifunctional logistics organization.

Hardin will take over the Director of Business and Licensing position from Tom Downey, who has been serving as Director in a temporary capacity. Hardin will begin at the Division on May 31, 2011.

The Secretary of State’s office oversees 130 employees who handle everything from elections to nonprofit regulation. The Business and Licensing Division, with more than fifty employees, is the largest of the office’s four divisions. The division oversees and administers many of Colorado’s business and commercial statutes that govern profit and nonprofit corporations, limited liability companies, partnerships, trade names, secured transactions under the Uniform Commercial Code and miscellaneous liens, Colorado Charitable Solicitations Act, Bingo and Raffles Laws, and Notaries Public Laws.

Finalists Selected for Judgeship at the Denver Probate Court

Today, the Second Judicial District Nominating Commission announced their nomination of three candidates for the Denver Probate Court judgeship created by the resignation of the Honorable C. Jean Stewart, effective June 30, 2011.

Nominees for the bench are Sandra Franklin, Ruben M. Hernandez, and Elizabeth D. Leith. All finalists are from Denver and were selected by the commission on May 17, 2011.

Under the Colorado Constitution, Governor Hickenlooper has until June 2, 2011, to appoint one of the nominees as district court judge for the Denver Probate Court.

Comments regarding any of the nominees can be emailed to the Governor’s office.

Tenth Circuit: Unpublished Opinions, 5/17/11

On Tuesday, May 17, 2011, the Tenth Circuit Court of Appeals issued two unpublished opinions in addition to two published opinions.

Unpublished

Ellis v. Estep

Aragon v. City of Albuquerque

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: District Court Should Have Conducted De Novo Resentencing as the Scope of the Proceeding on Remand Was Not Limited

The Tenth Circuit Court of Appeals issued its opinion in United States v. West on Tuesday, May 17, 2011.

The Tenth Circuit affirmed in part and remanded the district court’s decision. Petitioner appeals from a remand sentence in which the district court made factual findings concerning three sentence enhancements. Petitioner challenges whether a prior felony conviction for failure to stop constitutes a violent felony under the Armed Career Criminal Act (ACCA) and the restitution award. Petitioner argues that while Supreme Court precedent has been set, a recently argued case before the Supreme Court, Sykes v. United States, 598 F.3d 334 (7th Cir. 2010), cert. granted, 79 U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-11311), could prove to be an intervening contrary decision.

However, as a disposition in that case has not yet been reached, the law of the case for Petitioner’s appeal remains unchanged; if the Supreme Court issues an opinion favorable to Petitioner within the ninety-day window, Petitioner can file a petition for certiorari to the Supreme Court or, alternatively, he can seek a precautionary petition for certiorari arguing the Sykes issue.

As to the sentencing review, the Court determined that the district court erred by following the waiver approach, in which the restitution challenge would lie outside the grounds of the remand. The Tenth Circuit default, however, is de novo resentencing. As such, “to the extent that the district court determined that it should conduct a new sentencing proceeding, [the Court] did not limit the scope of that proceeding,” and the district court erred in determining that it lacked the authority to reconsider the restitution obligation; the district court had discretion to consider the issue.

Tenth Circuit: Previous Arbitration of Employment Contractual Claims Does Not Waive or Preclude Similar Statutory Claims

The Tenth Circuit Court of Appeals issued its opinion in Mathews v. Denver Newspaper Agency LLP on Tuesday, May 17, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner, formerly a unionized employee of Respondents, sought to litigate statutory employment discrimination claims despite having previously arbitrated similar contractual claims to a final, adverse determination. The district court found that a recent Supreme Court decision in, Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009), controls the issue and gave the arbitral decision preclusive force. The district court also found that Petitioner was unable to demonstrate that he was qualified for his former position, a showing necessary to the establishment of a prima facie case of discriminatory demotion.

The Court, however, disagreed with the district court as to enforcing the arbitral decision. The relevant facts of the case instead follow those of a different Supreme Court case: Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). “There, as here, no waiver of the right to litigate statutory claims has occurred, because ‘mere resort to the arbitral forum to enforce contractual rights constitutes no such waiver.’ . . . Because the submission of Mathews’s contractual claims to binding arbitration results in no waiver or preclusion of his statutory claims, summary judgment on such grounds was inappropriate.” However, the Court agreed with the district court and concluded that Petitioner was unable to demonstrate that he was qualified for his former position in his claim of discriminatory demotion.

Colorado Supreme Court: Miranda Waiver Voluntary Unless Gained by Intimidation, Threats, or Promises; Knowing and Intelligent if Defendant Understood but Made No Verbal Indications

The Colorado Supreme Court issued its opinion in People v. Gonzalez-Zamora on May 16, 2011.

Miranda Waiver—Knowing and Intelligent—Government Coercion—Voluntary Statements.

The district court suppressed statements made by defendant on the ground that his Miranda waiver and subsequent statements were involuntary. The Supreme Court reversed the suppression order.

The Court held that defendant’s Miranda waiver was voluntary, knowing, and intelligent. First, the record is void of any evidence of government “intimidation, misconduct, or trickery” that would lead the Court to question the voluntariness of his waiver. Second, the audio recording of the advisement and testimony concerning defendant’s nonverbal cues indicate that defendant was aware of and comprehended the rights that he was waiving. Finally, the trial court did not make any finding that defendant was coerced into making the statements, nor is there evidence of coercion in the record.

Summary and full case available here.

Tenth Circuit: No Opinions, 5/16/11

On Monday, May 16, 2011, the Tenth Circuit Court of Appeals issued no published opinions and no unpublished opinion.

Colorado Supreme Court: Criminal-Acts Exclusion Prohibiting Use of Rental Car in Commission of Felonious Crimes Does Not Violate Public Policy

The Colorado Supreme Court issued its opinion in Bailey v. Lincoln Gen. Ins. Co. on May 16, 2011.

Criminal-Acts ExclusionPublic PolicyDoctrine of Reasonable ExpectationsAmbiguous Policy LanguageDeceptive Practices

The supreme court affirms the court of appeals determination to uphold the enforceability of a criminal-acts exclusion in a $1 million excess-insurance policy issued to an insured who rented a vehicle he later drove under the influence of methamphetamines, colliding into another vehicle, critically injuring one person and killing another.

The supreme court holds that the criminal-acts exclusion prohibiting use of a rental car “in the commission of a crime that could be charged as a felony” does not violate public policy as applied to this case, where the insured pled guilty to five felonies involving the use of the car, including second degree murder. Further, the insurer’s use of the criminal-acts exclusion was a proper exercise of the insurer’s freedom to contract and provide coverage for damages caused by fortuitous events instead of for damages caused by intentionally criminal acts.

The supreme court also holds that, in this case, insertion of the criminal-acts exclusion does not violate the doctrine of reasonable expectations. In Colorado, this doctrine manifests itself in two ways: (1) where an ordinary, objectively reasonable person would, based on the language of the insurance policy, fail to understand that he or she is not entitled to the coverage at issue; and (2) where, because of circumstances attributable to an insurer, an ordinary, objectively reasonable insured would be deceived into believing that he or she is entitled to coverage, while the insurer would maintain he or she is not. In this case, from the perspective of an ordinary insured, the policy language is clear that using the rental car to commit a felonious criminal act may void coverage. Further, no circumstances attributable to the insurer can be said to have fostered objectively reasonable coverage expectations for intentional criminal acts.

Summary and full case available here.

Colorado Supreme Court: Common Law Rule Allowing Bonding Agent’s Privilege to Enter Does Not Exist in Colorado

The Colorado Supreme Court issued its opinions in Weinstein v. People; Oram v. People on May 16, 2011.

Criminal LawBurglary

In these companion cases, the supreme court affirms the opinion of the court of appeals. The court holds that the common law bonding agent’s privilege does not exist in Colorado. Accordingly, Weinstein and his partner Oram could not rely on that privilege to enter a private residence in search of a bonded individual. Because Weinstein and Oram represented that they were law enforcement officers in order to gain entry into the private residence, there was sufficient evidence that they knowingly entered the private residence unlawfully. Lastly, because none of the named victims of the burglary consented to the entry, the court holds that the trial court appropriately rejected an affirmative defense instruction on the issue of consent.

Summary and full cases available here.

Colorado Court of Appeals: Lengthy Delay of Disclosure of Investigative Reports While During Appeal May Disserve Public Interest, Despite Risk Defendant Would Be Harmed by Release of Reports

The Colorado Court of Appeals issued its opinion in Romero v. City of Fountain on May 12, 2011.

Colorado Open Records Act—Temporary Restraining Order—Colorado Criminal Justice Records Act—Stay Pending Appeal.

Plaintiff Frank Romero sought a temporary restraining order (TRO) against the City of Fountain from releasing an internal investigative report concerning his actions while he was a police officer. The district court entered a TRO precluding release of the report. After a closed hearing, the court denied the preliminary injunction request, but stayed the order, giving Romero through April 6, 2011 to file an appeal with the Colorado Court of Appeals. Romero filed a notice of appeal on April 1. The Court’s motions division denied the request for a stay pending appeal.

Romero is a former police officer with the City of Fountain. He filed a complaint to preclude the City of Fountain and the Fountain Police Department from releasing an internal investigation report concerning allegations that while in uniform he had inappropriate conduct with two women. The report had been requested by a local television station under the Colorado Open Records Act (CORA). Defendants notified Romero by letter dated March 11, 2011, that they intended to release two summaries of the investigation to the station on March 18, 2011.

Romero filed his complaint on March 17, 2011. He sought to preclude disclosure under CORA and the Colorado Criminal Justice Records Act (CCJRA), contending the report contained personal information that would irreparably harm him if released. On March 18, the district court entered a temporary restraining order and set a hearing for March 23.

At the hearing, the district court consolidated the case with a separate case in which Romero sought permanent injunctive relief and held a closed hearing. The court then denied the preliminary injunction after applying the factors set forth in Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982).The court gave detailed reasons on the record for its ruling but stayed its order for fourteen days to allow Romero sufficient time to file an appeal with the Court of Appeals.

On April 6, the Chief Judge granted a temporary stay through April 15 and directed Romero to obtain and file, under seal, a transcript of the March 23 hearing. On receipt of the transcript, the Court’s motions division granted continuances of stay through May 20 to give adequate time to rule on the motion for a stay pending appeal. The motions division determined that the stay should be denied.

C.A.R. 8(a) sets forth the standards for a stay pending appeal. The Court found no Colorado appellate decisions setting forth the standards regarding a request for a stay from an order denying a preliminary injunction. The Court looked to the “traditional standards” in the federal courts for a stay: (1) whether the applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

The Court found that Romero demonstrated a risk that he will be harmed if the stay is not granted and the summaries are released. However, it agreed with the trial court that Romero could not show a likelihood that he would prevail on the merits of his claim under the CCJRA.

The Court found that the district court correctly determined that the CCJRA was the applicable statute, not CORA. The record supported the finding that the police chief took into account Romero’s privacy interest and the public interest in disclosure, and exercised his discretion in recommending disclosure. Because a court is not to substitute its judgment in balancing these interests for those of the police chief, the Court could not conclude that Romero likely would succeed in showing that the district court abused its discretion in denying a preliminary injunction. Moreover, given the allegations in the complaint against Romero, the Court found that a lengthy delay of the disclosure of the reports while the case makes its way through the appellate courts might disserve the public interest.

The motion for a stay pending appeal was denied. However, because the release of the summaries likely would terminate Romero’s right to injunctive relief as a practical matter, the Court extended the stay through May 20 to allow Romero to seek relief from the Colorado Supreme Court with respect to this order.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

Colorado Court of Appeals: Trial Court Need Not Enforce Indian Child Welfare Act Notice Requirements When Mother Made No Assertion at Trial of Possible Indian Heritage

The Colorado Court of Appeals issued its opinion in People In the Interest of J.C.R., N.M-E., and N.M-E, Children, and Concerning B.R. and T.R. on May 12, 2011.

Dependency and Neglect—Termination of Parent-Child Relationships—Indian Child Welfare Act—Compliance With Treatment Plan.

In this dependency and neglect proceeding, mother appealed from the judgment terminating her parent–child legal relationships with J.C.R. and her twin children. Father appealed from the judgment terminating his parent-child legal relationship with J.C.R. The judgment was affirmed.

In April 2009, the twins, then 7 months old, were removed from mother’s and father’s care after police responded to a domestic violence incident between mother and M.E., the twins’ father. Two days later, 6-year-old J.C.R. also was removed. The Arapahoe County Department of Human Services (ACDHS) familiar with the three parents because of multiple previous domestic violence and suspected drug -se referrals.

Father and mother entered into extensive treatment plans. In January 2010, ACDHS moved to terminate each parent’s parental rights, alleging that either they had not complied with the treatment plans or the plans had not been successful. The trial court terminated each parent’s parental rights. Mother and father appealed.

Mother asserted that the Indian Child Welfare Act (ICWA) notice requirements were not met. The Court of Appeals disagreed. Mother made no assertion of possible Indian heritage at trial, nor did she provide any information supporting her Indian heritage during the proceedings. Therefore, there was no reason for the trial court to find that the ICWA notice requirements applied.

Mother also argued (1) there was no credible evidence of domestic violence; (2) she would have been found a fit parent had she been given an additional six months to work on her treatment plan; (3) evidence did not support the trial court’s conclusion that there were no less drastic alternatives to terminating her parental rights; and (4) ACDHS failed to provide “diligent supportive services” to her because it required that she and father have no contact and that rendered her virtually homeless. The Court disagreed with each of these contentions, holding that the grounds for terminating mother’s parental rights were proven by clear and convincing evidence.

Father argued, like mother, that it was error to conclude he had failed to reasonably comply with his treatment plan within a reasonable time. The Court found ample evidence in the record to support the trial court’s findings. Accordingly, the judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

Colorado Court of Appeals: Lack of Written Informed Consent for Surgery, “Habit Testimony Instruction,” and Excluded Testimony Not Sufficient for Reversal

The Colorado Court of Appeals issued its opinion in Holley v. Huang on May 12, 2011.

Informed Consent for Surgery—New Trial—Expert Opinion—Exclusion of Testimony—Habit Instruction.

Plaintiff Joan Holley appealed from the trial court’s judgment in favor of defendant Dr. Linda Huang. The judgment was affirmed.

Dr. Huang performed breast augmentation surgery on Holley. Holley later sued for damages—not for poor performance of the surgery, but for failure to obtain an informed consent for the procedure used on her right breast (a circumareolar mastopexy). To prevail, Holley was required to prove that: (1) Huang negligently failed to obtain Holley’s informed consent before making an incision around the areola to place an implant and to lift her right breast; (2) a reasonable person in the same or similar circumstances as Holley would not have consented to the procedure if given the necessary information; and (3) Huang’s negligent failure caused Holley’s injuries or damages.

A jury found in Dr. Huang’s favor, concluding that she obtained Holley’s informed consent before performing the surgery. On appeal, Holley requested a new trial based on more than forty arguments. The Court of Appeals addressed three in detail, disposed of several others summarily, and disregarded the rest.

Holley proffered expert opinion to prove Dr. Huang was negligent in failing to document the informed consent. The Court held that the trial court correctly disallowed that testimony. Under Colorado law, although a doctor must obtain a patient’s informed consent before performing any medical procedure, the means of obtaining that consent is not specified. The Court recognized that most informed consent is obtained in writing, for many good reasons; however, documentation is not required. Therefore, expert testimony on this issue was properly disallowed.

Holley wanted to testify that she never would have consented to the procedure had she been properly informed of its risks. The trial court excluded this testimony, finding it was not relevant and its minimal probative value was outweighed by the risk of prejudice to the defense. The Court found the ruling erroneous, but harmless. Holley’s testimony about what she would have done would serve as evidence of what a reasonable person in her position would have done. In addition, the proffered testimony presented no risk of unfair prejudice. The error was harmless, however, because Holley did not establish that excluding this testimony “influenced the outcome of the case or impaired the basic fairness of the trial itself.” The jury found that Holley had been informed of the risks and this testimony would not have altered that finding.

Holley argued that the trial court’s habit testimony instruction constituted reversible error because it required the jury to credit habit testimony over other types of evidence. The Court disapproved of the instruction but declined to reverse. The trial court instruction stated: “In case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing, than that he acted otherwise.” The Court held that although the instruction is an accurate statement about the relevance of habit testimony, it should not have been given because it was intended to guide judicial review and not jury deliberations. The Court did not reverse because (1) the trial objection did not preserve this argument; and (2) any error or prejudice from the instruction did not warrant reversal given the totality of the instructions and closing arguments.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.