July 15, 2018

Archives for August 1, 2011

Aaron Solomon: Rule 701 and Landowner Testimony

Editor’s Note: The Tenth Circuit Court of Appeals issued its opinion in James River Ins. Co. v. Rapid Funding, LLC on Friday, July 29, 2011.

In James River Ins. Co. v. Rapid Funding (No. 10-1145), the court held that Colorado Rule of Evidence 701 does not allow landowners to provide expert testimony regarding valuation without first qualifying as an expert. Colorado Rule of Evidence 701 (which mirrors F.R.E. 701) includes a committee comment noting that the rule is not intended to foreclose an owner from giving an opinion as to the value of his or her real property. The Tenth Circuit held that under Colorado law “landowner valuation testimony, if not based on technical or specialized knowledge, may be admitted as lay opinion testimony” but that the rule did not allow lay landowners to avoid Rule 702 and give testimony based on technical or specialized knowledge without qualifying as experts.

Aaron Solomon is an associate at Hale Westfall who focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on August 1, 2011.

Tenth Circuit: City that Provides Utility Services Not Immune from Suit for Anticompetitive Conduct and Attempted Monopolization

The Tenth Circuit Court of Appeals issued its opinion in Kay Electric Cooperative v. City of Newkirk on Friday, July 29, 2011.

The Tenth Circuit reversed and remanded the district court’s decision. Petitioner and Respondent both provide electricity to Oklahoma consumers. Traditionally, Respondent has served customers inside its city limits while Petitioner, a rural electrical cooperative, has served nearby customers outside the city boundaries. When a new jail was to be built just outside Newkirk, Petitioner offered to provide electricity. “But unwilling to let so lucrative an opportunity slip away, [Respondent] responded by annexing the area and issuing its own service offer.” Petitioner’s lower price was ultimately rejected because Respondent refused to provide sewer services to the jail unless it also bought their electricity services; Respondent is the only sewer service provider in the area. Petitioner brought suit, alleging that Respondent had engaged in unlawful tying and attempted monopolization in violation of the Sherman Act. But the district court refused to allow the case to proceed after it found Respondent “immune” from liability as a matter of law.

The Court disagreed with the district court’s findings. “When a city acts as a market participant it generally has to play by the same rules as everyone else. It can’t abuse its monopoly power or conspire to suppress competition.” Except, it may do so if the city can show that its parent state authorized it to upend normal competition. In that case, the city enjoys immunity from federal antitrust liability. However, this is not the case for Respondent. “While [Respondent] cites a number of more general enabling statutes conferring on the city the authority to do business, none authorizes the kind of anticompetitive conduct alleged here, let alone suggests that [the Court] may ignore the more specific provisions of law indicating it may not.”

Tenth Circuit: District Court’s Failure to Address Argument About Need to Avoid Unwarranted Sentencing Disparities Constitutes Reversible Procedural Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lente on Friday, July 29, 2011.

The Tenth Circuit reversed and remanded the district court’s sentence. Petitioner killed three young men and seriously injured a young woman in a car accident that occurred when she was driving while intoxicated. Petitioner entered a guilty plea to three counts of involuntary manslaughter and one count of assault resulting in serious bodily injury. She was originally sentenced to 216 months (18 years) in prison, which was a significant upward variance from her proposed Guidelines range of 46 to 57 months’ imprisonment. A divided panel of the Tenth Circuit vacated her sentence and remanded for resentencing; on resentencing, a different district court judge sentenced Petitioner to 192 months (16 years) in prison. She now appeals from her resentencing, alleging that it is procedurally and substantially unreasonable.

The Court agreed with Petitioner and concluded that the district court’s failure to address Petitioner’s argument about the need to avoid unwarranted sentencing disparities constitutes reversible procedural error. Both Petitioner and the government devoted extensive briefing and oral argument to the unwarranted disparity issue. Whether or not the district court considered Petitioner’s arguments, its opinion’s avoidance of a response to them left the Court “without understanding the role of a critical sentencing factor in shaping the sentence in this case. . . . “The need to avoid unwarranted disparities is a critical sentencing factor. Equal justice is a core goal of our constitutional system. We require courts to justify sentences to meet that goal. When justification is not forthcoming, the credibility of the sentence suffers. Whether the sentence is five years, ten years, or sixteen years, we insist on the procedural safeguard of explanation to assure us that justice has been done.” The Court made no judgment about the proper length of Petitioner’s sentence, but reversed and remanded.

Colorado Judicial Institute to Honor Judges Kuenhold, Stewart, and Carney, and Magistrate Rubinstein at Excellence Dinner; CNN’s Jeffrey Toobin to be Keynote Speaker

The Colorado Judicial Institute (CJI) has announced that the 2011 Judicial Excellence Awards will be presented to the following outstanding judges and magistrates at the Judicial Excellence for Colorado Dinner on November 1, 2011:

  • District Court Chief Judge O. John Kuenhold (12th Judicial District)
  • District Court Presiding Judge C. Jean Stewart (Denver Probate Court)
  • County Court Judge Christine Carney (Larimer County)
  • Magistrate Stephanie Rubinstein (Mesa County).

Judicial Excellence Award honorees all display innovation, efficiency, and dedication to the law and are highly respected members of the Colorado Bar.

Jeffrey Toobin, one of the country’s leading experts on the intersection of politics, media, and the law, will be the keynote speaker for the ninth annual dinner event. Toobin is CNN’s senior legal analyst as well as a staff writer for The New Yorker. He is perhaps best known for his comprehensive analysis of some of the nation’s highest profile cases in recent years, including the O.J. Simpson murder trial, Kenneth Starr’s investigation and the impeachment of President Clinton, Florida’s recount of the 2000 presidential election, and Martha Stewart’s insider trading trial. In 2000, Toobin received an Emmy for his coverage of the Elian Gonzales custody saga. Toobin is also an accomplished author; his most recent book is The Nine: Inside the Secret World of the Supreme Court.

The Judicial Excellence Dinner generates significant funding for the Judicial Education Fund held at the Denver Foundation. The Fund provides grants to justices, judges, magistrates and full time judicial department personnel to attend educational courses.

The event will be held at the Denver Marriott City Center, 1701 California Street, in Denver, Colorado. A cocktail reception starts at 6:00 pm with the dinner event beginning at 7:00 pm.

For more information about the event, purchasing tickets, or becoming a sponsor, click here.

13th Annual Senior Law Day a Resounding Success

On Saturday, July 23, nearly 900 seniors, adult children, and caregivers attended the Thirteenth Annual Senior Law Day at the Merchandise Mart in Denver. Senior Law Day offers the public the opportunity to hear from experienced elder law attorneys and other professionals involved in elder care issues.  This year, there were twenty-eight different short, informative workshops to choose from that helped seniors learn how to better manage family and financial issues and prepare for retirement.

The tremendous number of resources and educational workshops available not only benefit seniors in our community, but also adult children and caregivers who are helping aging parents, relatives, and friends.

New workshops this year included “DNR Orders, Advance Directives and End of Life Issues,” “Planning for Your Pets,” “Dealing with Trusts & Trustees,” and “Nontraditional Domestic Relationships.”

Attorney Carl Glatstein, the program chair for the event, described the event as way for attorneys and other professionals to provide “relevant and important information to seniors and present it in a way that is easy for people to understand.”

In addition the informative seminars, there were nearly 50 organizations and companies in the Exhibitor area that provided information and resources relevant to seniors.

Much of the content presented at Senior Law Day also can be found in the comprehensive 2011 Senior Law Handbook, distributed to all who attend the event.  The handbook is written by Colorado attorneys and professionals who donate their time to provide this valuable resource, published by the Colorado Bar Association Continuing Legal Education (CBA-CLE).

Senior Law Day couldn’t happen without the incredible number of volunteers who not only helped during the day of the event, but also with organizing, planning, setup, and clean up. There were more than 70 volunteers from the legal community who dedicated their time to the event – thanks so much for helping to make the day so successful!

The event continues to grow each year and Boulder County and Larimer County are each holding a Senior Law Day in their communities on August 13.  Jefferson County held their event in June and other counties around the state will be holding events in the fall. Click here to view information about the upcoming Senior Law Day events around the state.

Senior Law Day is co-sponsored by the Elder Law Section and the Trust & Estate Section of the Colorado Bar Association, and CBA-CLE. A $10 contribution is suggested but not required to attend the event.

We look forward to seeing you in Denver again next year!

Click here to view more pictures from the event.

Plain Language Subcommittee Seeking Comment on Criminal Jury Instructions Revisions

The Plain Language Jury Instruction Committee, a subcommittee of the Colorado Supreme Court’s Jury Committee, is seeking comment from the legal community regarding rewrites to some of the criminal jury instructions. The committee is reviewing Chapter 3 of the Colorado Criminal Jury Instructions and Chapter 1:04 in an effort to draft them in more understandable language.

The redrafted instructions are available to review here.

For comparison, each redrafted instruction is immediately followed by the current instruction (in black text). As you review the instructions, please use these factors to assess them:

  1. Does the new wording convey the point of the instructions and would it make sense to a lay person?
  2. Does the instruction make sense with just one reading?
  3. Does any of the language strike you as inaccurate, incomplete, or ambiguous?
  4. Are these drafts an improvement over the existing instructions?
  5. Please also provide any other impressions or comments you might like to mention.

If at all possible, responses should be sent to jury.instructions@judicial.state.co.us by August 15, 2011 at 5:00 pm.

Governor Hickenlooper Announces Appointments to the Oil and Gas Conservation Commission

On Friday, July 29, 2011, Governor John Hickenlooper announced eight appointments to the Colorado Oil and Gas Conservation Commission.

The Colorado Oil and Gas Conservation Commission promotes the responsible development of Colorado’s oil and gas natural resources by balancing the efficient exploration and production of oil and gas resources, the prevention of waste and the protection of the public health, environment, and mineral owners’ rights.

The new commission members replace those members whose terms expired July 1, 2011. They must be confirmed by the State Legislature and will serve terms of four years, expiring July 1, 2015.

The new commission members are:

  • Mayor Tommy E. Holton of Fort Lupton
    • Holton will serve as a local government official and as a Republican. He has extensive land use experience and once served as Chairman of the Weld County Planning Commission.
  • John H. Benton of Littleton
    • Benton will serve as a member with substantial experience in the oil and gas industry and with a college degree in petroleum geology or petroleum engineering and as a Republican. He is vice president and general manager for the Rockies Division of Rex Energy Corp. in Denver.
  • W. Perry Pearce of Denver
    • Pearce will serve as a member with substantial experience in the oil and gas industry and as a Democrat. He is manager of state government affairs for ConocoPhillips/Burlington Resources.
  • Andrew Lawrence Spielman of Denver
    • Spielman will serve as a member with formal or substantial experience in environmental or wildlife protection and as a Democrat. He is an attorney at Hogan Lovells in Denver and has federal, state, and local government experience with natural resources, land use, and Western public lands law to assist energy developers, ski areas, water suppliers, ranchers, tribes, and others with obtaining regulatory approvals and permits from governments across the United States. Spielman currently serves as Chairman of Colorado’s Regional Air Quality Council.
  • Thomas L. Compton of Hesperus, reappointed
    • Compton will serve as a member actively engaged in agricultural production and also a royalty owner, west of the Continental Divide, and as a Republican. He is the owner and manager of Compton Cattle Co., a commercial beef cattle enterprise.
  • Richard D. Alward of Grand Junction, reappointed
    • Alward will to serve as a member with formal training or substantial experience in soil conservation or reclamation, west of the Continental Divide, and as a Democrat. He is a principal ecologist and environmental scientist at Aridlands Natural Resource Consulting in Grand Junction and works as an adjunct instructor of environmental science at Mesa State College.

The governor also appointed Mike King, Executive Director of the Department of Natural Resources, and Dr. Chris Urbina, Executive Director of the Department of Public Health and Environment, to the commission.

A ninth member of the commission, Dolly Ann “DeAnn” Craig, of Denver, serves as a member with substantial experience in the oil and gas industry and a college degree in petroleum geology or petroleum engineering and as a Republican. Her term expires July 1, 2012.

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

J. Robert Brown, Jr.: Shareholder Protection Act of 2011 – Preemption, Prevention and Protection (The Consequences of the Legislation) – Part 5

We are discussing the Shareholder Protection Act of 2011. So if this Act passes in its present form, what will be the consequences?

In some respects, the consequences will be modest.  Certainly, they will require companies wanting to make campaign contributions to act proactively and submit the matter to shareholders for approval.  The increase in activism notwithstanding, shareholders still tend to approve what management asks.

On the other hand, there is reason to believe that the adoption of the provision will sharply reduce campaign contributions by public companies.  First, submitting the matter to shareholders will generate considerable publicity, much of it bad.  Companies will sometimes forgo contributions rather than submit to a public pillorying.

The likelihood of this occurring will be enhanced by language in the Act that provides a safe harbor for investment managers who decide to divest because of disagreement over political expenditures.  As the provision states:

(f) Safe Harbor for Certain Divestment Decisions- Notwithstanding any other provision of Federal or State law, if an institutional investment manager makes the disclosures required under subsection (e), no person may bring any civil, criminal, or administrative action against the institutional investment manager, or any employee, officer, or director thereof, based solely upon a decision of the investment manager to divest from, or not to invest in, securities of an issuer due to an expenditure for political activities made by the issuer.’

In other words, those unhappy with the campaign contributions can disinvest without risk.  Shareholders of mutual funds could, therefore, put pressure on the advisers to do exactly that.

Similarly, the SEC is instructed to conduct an “annual assessment of compliance” with these provisions and and submit a report to Congress.  At the same time, the GAO is instructed to “periodically evaluate and report to Congress on the effectiveness of the oversight by the Securities and Exchange Commission of the reporting and disclosure requirements”.  In other words, Congress will receive reports on the provision.  Boards may not want to see their company’s name on a report that suggests a clear political preference.

Second, companies will sometimes forgo seeking shareholder approval because of the risk of liability.  For listed companies, boards will have to approve specific expenditures of more than $50,000.  As a result, they will be “authorizing” the payments.  The Act provides that those improperly authorizing payments will be liable for treble damages.

Moreover, the payments themselves may be a violation of fiduciary obligations, irrespective of the treble damages provision.  The shareholder law suit against News Corp apparently alleges, among other things, that the company improperly made a “$1,250,000 contribution to the Republican Governor’s Association last year.”  Rather than confront these risks, it will be easier to avoid having the authority in the first instance.

To the extent that this Act is adopted, therefore, campaign contributions will likely fall, state law will be preempted yet again, and the role of the SEC in the governance process will be expanded.

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 28, 2011.

Colorado Supreme Court: Week of July 31, 2011 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of July 31, 2011.

Ross Guberman: The Charlie Sheen Letter

With Charlie Sheen taking his one-man show on the road, I wanted to share a letter to Sheen’s counsel signed by Munger Tolles partner John Spiegel.

Rarely do we get a chance to read a letter from a former Supreme Court clerk about something this juicy.

So long as the facts don’t make you blush, consider these seven style techniques:

1. Parallel sequence

Warner Bros. would not, could not, and should not attempt to continue “business as usual” while Mr. Sheen destroys himself as the world watches.

… no professional apparently was willing to attest that Mr. Sheen had self-treated, self-healed, and self-cured his brain of his addiction problems.

2. Using “and so” rather than “therefore,” “consequently,” or even “thus”

As Mr. Sheen was aware, some lead time was required to restart production and so it was scheduled to resume February 28.

3. A dash for emphasis

Press reports described the trip as a three-day bender, and noted that Mr. Sheen was seen drinking the morning of his return, January 11—the same day he was scheduled to begin rehearsing that week’s episode of the Show.

4. A fragment to add variety

You claim that Mr. Sheen was turning in “brilliant” performances during this time. Not true.

5. A sentence of all one-syllable words

As bad as all this was, the worst was yet to come.

6. Letting your opponents’ words speak for themselves, without gloating or other commentary

Mr. Sheen recently stated in an interview that the last time he used drugs, he “probably took more than anybody could survive. I was banging seven gram rocks [of cocaine] and finishing them. That’s the way I roll.”

7. Fleshing out a series through bullet points

For example, Mr. Sheen called Mr. Lorre a “contaminated little maggot,” a “retarded zombie” and a “turd.” He also stated that he wishes Mr. Lorre “nothing but pain” and that he has “defeated this earthworm with my words—imagine what I could have done with my fire breathing fists.” [A]mong many other bizarre comments, Mr. Sheen has proclaimed:

  • “I am on a drug. It’s called Charlie Sheen. . . . If you try it once you will die. Your face will melt off and your children will weep over your exploded body.”
  • “I have tiger blood” and “Adonis DNA.”
  • My brain “fires in a way that is . . . maybe not from this particular terrestrial realm.”
  • “I’m not bipolar but biwinning.”
  • “I’m tired of pretending I’m not a total bitchin’ rock star from Mars.”

I won’t even try to top that last line. Happy writing!

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Tenth Circuit: Unpublished Opinions, 7/29/11

On Friday, July 29, 2011, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

Unpublished

ICE Corp. v. Hamilton Sundstrand Corp.

Cramer v. State of Utah

Boston v. Blue Cross and Blue Shield of Kansas, Inc.

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