December 11, 2018

Archives for June 2011

Domestic Relations Case Management Order Forms Revised in Eighteenth Judicial District

Family Law practitioners in the Eighteenth Judicial District should be aware that new language has been added to the Domestic Relations Case Management Orders (CMOs). The updated forms are effective immediately.

The new language is in response to CJD 11-01 (Concerning Statewide Electronic Filing Standards), and reads as follows:

Trial exhibits: Parties are ordered to bring their exhibits to trial in an exhibit book format with appropriate copies for the court.  The court will instruct the parties on when to efile their exhibits to preserve the court record.

Click here to download the new CMOs.

Click here to read more about CJD 11-01.

Denver County Court Closed Friday and Monday

The Denver County Court will be closed this Friday, July 1, 2011 for a budget-mandated furlough day, in addition to Monday, July 4, in observance of the Independence Day holiday.

Governor Hickenlooper Announces Appointments to Transportation Commission

On Tuesday, June 28, 2011, Governor John Hickenlooper announced his appointments to the Transportation Commission.

The Transportation Commission formulates general policy for the Colorado Department of Transportation with respect to the management, construction, and maintenance of public highways and other transportation systems in the state. The commission also works to assure that the preservation and enhancement of Colorado’s environment, safety, mobility, and economics is considered in the planning of all transportation projects.

These appointments are dependent upon Senate confirmation. The members appointed are:

  • Heather M. Barry, of Westminster, to serve as a commissioner from the fourth district; term to expire July 1, 2015.
  • Kathleen R. Gilliland, of Livermore, to serve as a commissioner from the fifth district; term to expire July 1, 2015.
  • Kathy I. Connell, of Steamboat Springs, to serve as a commissioner from the sixth district; term to expire July 1, 2015.
  • Leslie W. Gruen, of Colorado Springs, to serve as a commissioner from the ninth district; term to expire July 1, 2015.
  • Kimbra L. Killin, of Holyoke, to serve as a commissioner from the eleventh district; term to expire July 1, 2015.

The full press release from the Governor’s office concerning these commission appointments can be found here.

A Seat at the Bar: Alec Baldwin Kicks Off Family Law Institute

Brenda Storey has been working since October to create a catalyst to start a discussion on the current practices in family law. This year, there will be a Kickoff to the Family Law Institute and the special guest, who has some tough words for family law lawyers, will be actor Alec Baldwin.

Baldwin, who wrote the book “A Promise to Ourselves: A Journey Through Fatherhood and Divorce” following his public divorce from Kim Basinger and his custody fight for his daughter Ireland, describes today’s treatment of family issues in the courts as a cold and exploitative event: “To be pulled into the American family law system in most states is like being tied to the back of a pickup truck and dragged down a gravel road late at night. No one can hear your cries and complaints, and it is not over until they say it is over.”

The kickoff will be held Aug. 11, the day before the Family Law Institute convenes in Breckenridge Aug. 12 to 14. The event also will serve as a fundraiser for the Legal Aid Foundation of Colorado, an idea Storey said Baldwin suggested. The theme of this year’s Institute is “Say You Want a Revolution,” so the kickoff event at the Marriot City Center Hotel in Denver will start the conversations early.

Though Storey knows not everyone will appreciate Baldwin’s take on family law, the Family Law Section Chair hopes the event will entertain, educate, and challenge people to change.

When Storey first started the process of inviting Baldwin, she was unsure of whether he would be interested. When she spoke with Baldwin from the set of the TV show “30 Rock,” she was caught off-guard by the personal call and the fact that he went through his calendar with her to find a date that would work for them both.

Baldwin had never been approached by a bar association to discuss his book, which he wrote with Mark Tabb.

“I asked him to look them [the lawyers at the event] in the eyes and tell them, me, us what we’re doing wrong,” Storey said of her approach in inviting Baldwin to speak.

Despite how people may feel about Baldwin personally, Storey said the same issues—personal attacks and being brought to one’s breaking point during a divorce or custody battle—are relatable to others. Throughout her planning process for the Institute, Storey has been surprised to find how few in the family law realm know that Baldwin wrote this book, which was published in 2008.

“What I appreciate about his book is that he doesn’t just complain; he actually makes some good suggestions,” Storey said.

Although Baldwin hopes the system will change, Storey said his book is not meant to be disrespectful of those who work within the legal system.

“He really respects good lawyers,” she said. “He respects the system; he just wants to change it.”

If you go: Kickoff to the Institute with Alec Baldwin

August 11 at the Marriott City Center Hotel, 1701 California St., Denver, Colorado, beginning at 5:30 pm. Dinner and a conversation about the family law system with Baldwin. Pre-purchase of Baldwin’s book, “A Promise to Ourselves,” is available when registering. Guests who pre-purchase the book with be entered into a lottery for an intimate book signing. The twenty-five selected will get to spend an hour with the actor following the event. The twenty-five participants will be notified of their selection by August 4th. Register by August 1 by calling (303) 860-1115 or email melissan@cobar.org. A registration form, available here, must be completed to RSVP.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

Tenth Circuit: Government Does Not Have to Prove Defendant Was Actually Aware of Risk of Serious Bodily Injury or Death when Seeking § 2B1.1(b)(13) Sentence Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Maestas on Tuesday, June 28, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner attempted to steal a piece of gold from Los Alamos National Laboratory and pled guilty to theft of government property. The gold was contaminated with plutonium. The district court applied the U.S.S.G. § 2B1.1(b)(13) enhancement and sentenced Petitioner to twelve months in prison, which was within the calculated guideline range. Petitioner argues that the enhancement can only apply if the government proves that he was aware of the risk his conduct created, and that he consciously or recklessly disregarded that risk; he also challenges the district court’s factual findings that the gold was dangerous, and that he was aware of that danger.

The Court disagreed with Petitioner’s arguments and joined the Second and Ninth Circuits to “hold that the government does not have to prove that the defendant was actually aware of the risk of serious bodily injury or death when seeking a § 2B1.1(b)(13) enhancement.” The Court interpreted the guideline “to require the defendant to have been conscious of or reckless as to the existence of the risk created by his or her conduct. Generally, recklessness is an objective standard, and [the Court interpreted] ‘reckless risk’ to describe objectively culpable conduct. [The Court held] that a defendant’s conduct involves a conscious risk if the defendant was subjectively aware that his or her conduct created a risk of serious bodily injury, and a defendant’s conduct involves a reckless risk if the risk of bodily injury would have been obvious to a reasonable person.”

Accordingly, the Court upheld Petitioner’s sentence enhancement. “The district court’s finding that the radioactive gold posed a danger of serious bodily injury or death was not clearly erroneous.” The gold was contaminated with a significant amount of plutonium, and the “government presented evidence that the plutonium contained in the stolen gold piece could be extremely harmful if it entered a person’s body.” The district court could reasonably infer from Petitioner’s employment history at the Laboratory that he was aware of the dangers of radiation. The district court could also reasonably infer that Petitioner was aware that the gold he removed was radioactive; the gold was taken from a boat used to melt plutonium, stored in a sealed box that was wrapped in a manner that Petitioner knew signified radioactive contamination, and there was evidence that Petitioner attempted to decontaminate the gold.

Tenth Circuit: Pending Post-Conviction Motions or Collateral Attacks Do Not Negate the Finality of a Conviction for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Jimenez-Guzman v. Holder, Jr. on Tuesday, June 28, 2011.

The Tenth Circuit denied the petition for review. Petitioner, a Mexican citizen, seeks review of a final order of removal issued by the Board of Immigration Appeals (BIA). He contends that the court erred in denying his request for a continuance and in applying an incorrect legal standard to the evidence of his controlled-substance conviction; the Attorney General asserts that the Court lacks jurisdiction over a challenge to the denial of a continuance.

The Court found that there was no abuse of discretion in the denial of Petitioner’s motion for a continuance. Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned; the immigration judge had already continued the removal hearing several times while Petitioner awaited the state trial court’s disposition of his post-conviction motion. Additionally, the record and plea agreement negate any claim of ineffective assistance of counsel for failure to advise of the immigration consequences of Petitioner’s plea.

Lastly, after reviewing the substantial evidence, the Court determined that the government met its affirmative burden of establishing “through clear, unequivocal, and convincing evidence that [Petitioner] was removable based on his conviction of a crime relating to heroin, a federally controlled substance. Accordingly, the BIA committed no error in dismissing his appeal.”

Tenth Circuit: Counsel’s Actions Were Objectively Reasonable in Not Seeking Dismissal of Indictment Based on Violation of Speedy Trial Act

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rushin on Tuesday, June 28, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was sentenced to 139 years imprisonment for robbing six convenience stores at gunpoint. Petitioner appeals from the district court’s denial of his motion to vacate or set aside his sentence, claiming entitlement to post-conviction relief because he was denied his Sixth Amendment right to counsel when his trial attorney failed to seek dismissal of the indictment based on a violation of the Speedy Trial Act (STA).

The Court found that Petitioner did not carry his burden of proof regarding ineffective assistance of counsel. To succeed on an ineffective assistance of counsel claim, “a defendant has the twofold burden of establishing that (1) defense counsel’s performance was deficient, i.e., counsel’s ‘representation fell below an objective standard of reasonableness’ as measured by ‘prevailing professional norms,’ and (2) defendant was prejudiced thereby, i.e., ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.'” Violation of the STA is not enough to grant a dismissal with prejudice, and a dismissal without prejudice allows the government to return a new indictment within six months. Ultimately, Petitioner’s counsel’s actions during trial were objectively reasonable; should Petitioner have been successful in a pursuit of a STA claim, it is probable that the government would simply have reindicted him.

Tenth Circuit: Proper Forum to Attack Constitutionality of Guilty Plea is in State Court Application for Post-Conviction Relief, Not Immigration Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Vasiliu v. Holder, Jr. on Tuesday, June 28, 2011.

The Tenth Circuit dismissed the petition for review. Petitioner, a native of Romania who was admitted to the United States as a permanent resident in 1982, pled guilty to criminal possession of a weapon and assault and battery/domestic abuse, and was subsequently charged with removability. While he stated that his criminal convictions supporting the removability were not final, the Court found otherwise. The constitutional objection asserted in this petition, that his guilty plea to domestic abuse was constitutionally defective, raises collateral issues that are beyond the scope of the Court’s review or jurisdiction; the proper forum is with his application for post-conviction relief in state court.

Tenth Circuit: Unpublished Opinions, 6/28/11

On Tuesday, June 28, 2011, the Tenth Circuit Court of Appeals issued four published opinions and three unpublished opinions.

Unpublished

Nagim v. Irving

Brown v. Hartford Life Ins. Co.

French v. American Airlines, Inc.

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

Finalists Selected to Fill Judgeship in Seventh Judicial District

The Seventh Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the passage of SB 11-028, effective July 1, 2011.

Nominees for the bench are Peter Bogardus, Jr., of Crested Butte, Mary Deganhart, of Ridgway, and Marcus Lock, of Gunnison. All were selected by the commission on June 27, 2011.

Under the Colorado Constitution, Governor Hickenlooper has until July 13 to appoint one of the nominees as district court judge for the Seventh Judicial District, which serves Delta, Gunnison, Hinsdale, Montrose, Ouray, and San Miguel counties.

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

State Board of Health Amends Rules Regarding Renewal License Fees for Assisted Living Residences

The Colorado State Board of Health has amended the rules that outline the renewal license fees for Assisted Living Residences. The proposed amendment will reduce the bed fee from $56 to $30 for licenses with a renewal date on or after January 1, 2012.

The purpose of the amended rules is to reduce revenue in the Assisted Living Residences cash fund, which has exceeded both the Department of Public Health and Environment projections and spending authority. At the time the fees were raised in 2008, the Department’s standard expense projections included annual cost of living increases for Department personnel which have not occurred for the past several years. In addition, there has been an unexpected increase in the number of new Assisted Living Residences, which generate larger initial license and plan review fees. This trend appears to be continuing, so the reduction in fees has been found appropriate.

A hearing on the amended rules will be held on Wednesday, August 17, 2011 at the Department of Public Health and Environment, Building A, Sabin-Cleere Conference Room, 4300 Cherry Creek Drive South, Denver, Colorado 80246, beginning at 10:00 am.

The Board encourages all interested persons to participate in the hearing by providing written data, views, or comments, or by making oral comments at the hearing.

The Board requests submission of written materials no later than August 3, 2011 to allow the Board sufficient time to review the comments prior to the meeting. Persons wishing to submit written comments or views should submit them following the guidelines provided here.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.

State Board of Health Amends Rules Regarding the Naming of Health Care Entities

The Colorado State Board of Health has amended the rules that outline the criteria regarding licensed health care entity names. The requirement that an entity’s name identify the services for which it is licensed has been eliminated. The license fee has also been lowered for processing an entity’s request to change its name or address. “These changes have been discussed with a consortium of licensed health care entities, which supports the proposal.”

The fee to change the name or address of a health care entity has been lowered from $360 to $75.

The purpose of the proposed amendments is to better reflect the changing face of health care and the anticipated expansion of health care delivery systems under the Affordable Care Act.

A hearing on the amended rules will be held on Wednesday, August 17, 2011 at the Department of Public Health and Environment, Building A, Sabin-Cleere Conference Room, 4300 Cherry Creek Drive South, Denver, Colorado 80246, beginning at 10:00 am.

The Board encourages all interested persons to participate in the hearing by providing written data, views, or comments, or by making oral comments at the hearing.

The Board requests submission of written materials no later than August 3, 2011 to allow the Board sufficient time to review the comments prior to the meeting. Persons wishing to submit written comments or views should submit them following the guidelines provided here.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.