July 21, 2018

Archives for July 27, 2011

Tenth Circuit: Tribal Convictions Obtained in Compliance with the Indian Civil Rights Act Are Necessarily Compatible with Due Process of Law

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shavanaux on Tuesday, July 26, 2011.

The Tenth Circuit reversed and remanded the district court’s decision. Petitioner is a member of the Ute Indian Tribe and resides on the Uintah and Ouray Reservations within Utah. In 2010, Petitioner was indicted for assaulting his domestic partner after having been convicted of assaulting a domestic partner on two prior occasions. Petitioner’s two prior convictions were in Ute tribal court; in neither of the tribal prosecutions did he have the right to appointed counsel provided at the Tribe’s expense and he only exercised his right to be represented by a lay advocate at his own expense.

Petitioner filed a motion to dismiss the indictment asserting that the Sixth Amendment and the Due Process Clause of the Fifth Amendment of the United States Constitution forbid reliance on his uncounseled tribal misdemeanor convictions to support the new charge. The district court determined that the Constitution does not apply to tribal court prosecutions and therefore Petitioner did not have Sixth Amendment or due process rights to appointed counsel in tribal court; his “two convictions for aggravated assault do not violate either the Indian Civil Rights Act or the United States Constitution.” However, the district court ruled that “use of those otherwise-valid tribal court convictions in a § 117(a) prosecution would violate [Petitioner]’s Sixth Amendment right to counsel.”

However, the Court disagreed. “[B]ecause the Bill of Rights does not apply to Indian tribes, tribal convictions cannot violate the Sixth Amendment. [Petitioner]’s convictions complied with ICRA’s right to counsel provision . . . . Thus, use of Shavanaux’s prior convictions in a prosecution under § 117(a) would not violate the Sixth Amendment, anew or otherwise.” Additionally, “tribal convictions obtained in compliance with ICRA are necessarily compatible with due process of law. Unless a tribal conviction has been vacated through habeas proceedings or on other grounds, it constitutes a valid conviction for the purposes of § 117(a) and its use does not violate a defendant’s right to due process in a federal prosecution.”

Tenth Circuit: Central Focus of Due Process Analysis is Not on What Sentencing Court Did after Crime Committed, but on What Defendant Could Have Realistically Imagined a Sentencing Court Could Do under the Law when Crime Committed

The Tenth Circuit Court of Appeals issued its opinion in United States v. Waseta on Tuesday, July 26, 2011.

The Tenth Circuit affirmed the district court’s sentence. Petitioner plead guilty to one count of
sexual abuse of a minor for a sexual act committed against his stepson in Indian Country in 1989. The version of the United States Sentencing Guidelines in place at the time of Petitioner’s conviction “dictated a sentence range of fifteen to twenty-one months under the then-mandatory Guidelines sentencing regime. When Petitioner was sentenced, however, the Guidelines regime was no longer mandatory; pursuant to the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), it was (and remains) advisory. Under this advisory system, the district court varied upward and sentenced [Petitioner] to forty-six months’ imprisonment, to be followed by three years of supervised release.” Petitioner now appeals, claiming that the district court’s sentence violated the Fifth Amendment’s due process protections and ex post facto principles. “More specifically, [Petitioner] contends that application of the advisory Guidelines scheme resulted in a sentence that was utterly unforeseeable under the mandatory Guidelines in place at the time of his crime, and consequently effected an unconstitutional expansion of his exposure to punishment.”

The Court rejected Petitioner’s contentions and affirmed his sentence. Due process gives rise to a fair warning concern; “the central focus of the due process analysis is not on what a particular sentencing court actually did after the crime was committed, but on what the defendant could have realistically imagined that a hypothetical sentencing court could do under the law at the time he committed the crime.” However, the Court concluded that it was “realistically imaginable at the time that [Petitioner] committed the alleged abuse that some district court could impose a forty-six month sentence,” given the other assumptions Petitioner was willing to make regarding his sentencing under the mandatory Guidelines and his lack of denial concerning the scope of his abuse of his stepson.

Tenth Circuit: Unpublished Opinions, 7/26/11

On Tuesday, July 26, 2011, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.


United States v. Williams, Jr.

McClelland v. Deluxe Financial Services, Inc.

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

Pilot Rules for Certain District Court Civil Cases Adopted by Colorado Supreme Court

Following the Colorado Supreme Court’s approval of the Civil Access Pilot Project, the Court has issued a new Chief Justice Directive to implement the rules outlined by the project. These revised rules are an attempt by the Court to study if the control of the discovery process reduces the expense of civil litigation in certain business actions.

In order for the project to be implemented successfully, the Court has determined that the Colorado Rules of Civil Procedure concerning the pleading, discovery, and trial management of certain cases must be modified.

All of the new rules are outlined in CJD 11-02.

The rules contained therein are effective January 1, 2012 and will be applicable to cases filed on or after that date. The rules are adopted for use in the designated cases in the First, Second, Seventeenth, Eighteenth, and Twentieth Judicial Districts.

The pilot project is scheduled to last two years and apply to all applicable cases filed in the pilot districts up to December 31, 2013 or until further order of the court.

The effect of the pilot project will be studied by the Institute for the Advancement of the
American Legal System (IAALS), working at the request of the Court. IAALS will issue a report
on the effect of the project upon the conclusion of the two year period.

CJD 11-02 – “Adopting Pilot Rules for Certain District Court Civil Cases”

Kevin O’Keefe: Google Plus for Lawyers – First Impressions

Google Plus, a new social networking service operated by Google, has been out for less than a month.

What do we know?

  • It’s seen explosive growth with almost 20 Million users. To put that in perspective, it took television 13 years and the Internet four years to reach 50 million users. Facebook had 100 million users at nine months, a number Google Plus looks likely to reach.
  • One Billion items a day are already being shared on Google Plus. That already rivals Facebook numbers of a year ago.
  • Google has doubled down, if not tripled down on Google Plus. Google is a force of nature and when you throw this many good engineers and effort into something like Google Plus, it’s going somewhere. It’s possible Larry Page came back as CEO to drive initiatives such as this.

What are my first impressions?

  • Google Plus, unlike other Google social networking services ala Google Buzz, is going to be something. It’s here to stay and be it’s going to be used by a significant number of people.
  • Despite a clear goal to compete with Facebook, Facebook is unlikely to go the way of MySpace. Too many people and businesses are using Facebook, it’s advertising model is generating a boatload of money, Mark Zuckerberg is a very smart and driven guy, and social networking, unlike Google, is all Facebook does — they breath it day and night.
  • Google Plus, unlike Twitter and even Facebook, is very intuitive to use.
    • Connecting with people is very easy.
    • Assigning people to circles (groups) you create is a snap making it easy to know what you are distributing to who. I am sure Facebook privacy settings are easy to use when you know where to look, but I have not figured them out yet.
    • Google Plus allows you to send items to one person or a group very easily. This is not as easy to do on Twitter or Facebook.
  • The people I see all over Google Plus today are early adopters, if not the bleeding edge. That’s not an all together bad group for you as a lawyer to network among. Lawyers are too fast to dismiss social networking solutions because not all their clients are there. It doesn’t matter. If you know what you are doing in using social media, you know that connecting and building relationships with the influencers and amplifiers (this group of early adopters). This group may be more important than networking with clients/prospective clients/referral sources. Think PR and the media. Though there is a heavy population of Tech/Media/Mar-com people now on Google Plus, you can expect early adopters in every vertical and profession to be on Google Plus very soon, if they are not already.
  • The fastest growing group of users on Facebook is over 55. Think pictures of grandkids. The Google Plus toolbar is going to display at the top of the browser window when anyone is using Google. I expect this to attract an older population to Google Plus over time, the population with the greatest wealth in the country and prime people to network with for lawyers.
  • You don’t stop using Facebook, Twitter, and LinkedIn and start using Google Plus because it’s the new and greatest.
    • Social networking services, over time, have a way of serving different needs for people. I don’t see competition as a zero-sum game.
    • The people you want to connect with to build relationships will be spread across various social networking services. You need not use them all. But getting conversant with them is going to help you get out and build and nurture relationships where the people are.
  • Google Plus generates lots of interaction and discussion, more so than possibly Twitter and Facebook. Look at this blog post of mine. Two comments on my blog. 10 comments on Google Plus. You want to be part of a dialogue with influencers and amplifiers, better still if it was your original insight  (blog post) that initiated this dialogue. Not only doesn’t it matter if the dialogue is some place other than your blog comments (Twitter, LinkedIn, Facebook, now Google Plus), but it’s better if the dialogue is someplace other than your blog. More people see the dialogue and have the opportunity to join in. Plus you are seen as someone who ‘comes out’ and joins the discussion, not someone who says, “Look at me and my blog, come here as I measure my success and worth by traffic to my blog and, in turn, my website.”
  • Your Google Profile that accompanies your Google Plus is going to start showing up when people search your name. That’s going to be especially true if you use Google Plus now and again. A well thought out and complete Google Profile page will set you apart from other lawyers.

Though Google Plus is still in its infancy, I suggest you try it out. Google Plus is here to stay and some of the people you’ll want to network with as a lawyer are going to be using Google Plus.

Kevin O’Keefe is CEO and Publisher of LexBlog, the leading provider of social media solutions and strategies to law firms. The LexBlog Network, with over 7,000 members, is the world’s largest professional blog network. Kevin’s blog, Real Lawyers Have Blogs, is the leading source of information on the use of blogs and other social media for lawyers and law firms; this post originally appeared there on July 23, 2011.

J. Robert Brown, Jr.: Shareholder Protection Act of 2011 – Preemption, Prevention and Protection (Approval by Shareholders) – Part 2

The Shareholder Protection Act of 2011 seeks to regulate political contributions by, among other things, imposing a requirement that shareholders approve the expenditures.

With respect to shareholder approval, a new Section 14C of the Exchange Act would require shareholders of public companies to approve “total amount of expenditures for political activities proposed to be made by the issuer for the forthcoming fiscal year”.  See Proposed Section 14C, 15 USC 78n-3.

There are several points to make about this putative requirement.  First, it preempts state law. State law does not require shareholder approval as a precondition for a corporate expenditure.  In effect, this provision would reduce the discretion of the board and provide a shareholder veto over the contributions.

Second, it continues the expansion of the SEC’s authority (and the involvement of the federal government) in the corporate governance area with respect to shareholder rights.  State law requires shareholder approval of mergers, sale of all/substantially all assets, and dissolutions.  Shareholders must also elect directors and approve amendments to the charter (excepting the creation of a new class of stock assuming the presence of a blank check stock provision).  That’s it.  When Congress mandated say on pay in Dodd-Frank, it for the first time required all public companies to extend voting rights to their shareholders and gave the SEC the authority to oversee the process.  See Rule 14a-21, 17 CFR 240.14a-21. Political contributions would represent the second time the federal government mandated that certain matters be submitted to the shareholders of all public companies and the second time that the SEC was assigned responsibility for overseeing the process.

Third, the provision goes well beyond say on pay.  It does not provide an “advisory vote” on the matter but instead gives shareholders substantive authority to approve or disapprove the activity.  While the board has the authority to ignore a shareholder vote on say on pay, it would not be able to do the same with the vote required in this provision.  But for shareholder approval, the expenditures could not be made.

For more than two decades, J. Robert Brown, Jr. has taught corporate and securities law, with a particular emphasis on corporate governance. He has authored numerous publications in the area and several of his articles have been cited by the U.S. Supreme Court. He is a professor at the University of Denver Sturm College of Law and blogs for The Race to the Bottom, where this post originally appeared on July 26, 2011.

Help Inspire a Love for the Law of the Land this Constitution Day

Do you remember when you first wanted to be an attorney? What was the spark that ignited your passion for the law?

Help pass on your passion to the next generation for this Constitution Day, September 17. Volunteer attorneys are needed to speak about the Constitution to 5th and 8th grade Denver Public School students from September 12 through 16.

Materials will be provided and available for pick up (with donuts and coffee) at the DBA offices from September 7 through 9, 7:30 to 9:30 am.

If you are interested in helping out, please contact Carolyn Gravit at cgravit@cobar.org.

New Across-the-Board Procedure Rules for Calculating Trial and Appellate Deadlines Proposed by the Colorado Supreme Court

The Colorado Supreme Court is requesting written public comments by any interested person on revisions to proposed new rules for calculating trial and appellate deadlines. Changes are being made to virtually every rule of procedure (civil, appellate, uniform water, probate, and criminal) – a daunting task undertaken by the Supreme Court to help simplify how one determines when pre- and post-trial actions must be taken. Most of the new rules will take effect at the start of 2012, with a few others kicking in July 2012  to allow for legislative review.

Public review and comment is seen as vital to these changes especially, as they are comprehensive; with such a vast number of rules to review, it is possible mistakes or inconsistencies escaped the notice of the Supreme Court’s rules committees. The Court asks that lawyers who appear in courts—civil, criminal, appellate, or other—review the applicable proposals and submit written comments to the Supreme Court by Friday, September 30, 2011 at 5:00 pm.

According to an advance article from The Colorado Lawyer, the changes again come as a response to revisions in the Federal Rules of Civil Procedure. The amended Colorado rules will adopt the federal rules’ multiples of 7 – or, multiples of a week. This change will virtually eliminate problems that arise when a deadline falls on a weekend; a response that is due in 21 days will always fall on the same weekday.

The revised Colorado rules, however, reject the federal standard of allowing an extra 3 days for mailing and e-service. The Colorado rules will adopt a 7-day standard for that as well.

As a result of these changes, most court deadlines were rounded up to closest 7-day period, with 10 days becoming 14 and 15 rounding up to 21. However, sometimes longer periods were shortened slightly when time frames were deemed important; 30 days before trial could now become 28 days before trial.

All trial and appellate lawyers are urged to review the new proposed rules to determine whether these new deadlines create unintended consequences that should be fixed before final action on the rules is taken.

An original plus eight copies of written comments concerning the proposed new rules should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, at 101 W. Colfax Avenue, Suite 800, Denver, Colorado 80202, no later than Friday, September 30, 2011 at 5:00 pm.

Click here to review The Colorado Lawyer article outlining the proposed changes to the rules. Click here to assist the Colorado Supreme Court and review the amended rules themselves.