April 20, 2019

Archives for September 8, 2011

Department of Human Services Finds Thousands of Rules to Repeal or Revise

On Thursday, September 8, 2011, Governor John Hickenlooper announced that the Colorado Department of Human Services is poised to recommend the repeal of nearly 850 rules that are unnecessary or outdated and the revision of another 2,000 rules.

“Our commitment to cutting red tape and finding appropriate levels of regulation is no secret,” Hickenlooper said. “These proposed changes will help streamline operations in the Department of Human Services. Other state agencies are going through similar reviews of their rules as we work together to make state government more effective and efficient.”

The recommendations follow a comprehensive review of more than 4,300 rules by 63 Human Services employees over the past several months. The effort was the most extensive rule review ever undertaken by the Department of Human Services, which regulates child care centers, foster homes, child protection services, mental health programs, services for individuals with disabilities, and senior services.

Human Services employees received special training to review agency rules for clarity, necessity, and conciseness and were directed to recommend for repeal or revision those rules found to be duplicative, inconsistent, or burdensome. The same scrutiny will be applied to proposed rules for child care centers that are currently working through a public input process.

The department will recommend to the State Human Services Board the repeal of 841 rules and the revision of an additional 2,116.

Some of the rule changes being considered are:

  • Six rules concerning the operation of the County Veterans Service Officer Program, which will be repealed as this program was moved by statute to the Department of Veterans and Military Affairs in 2002.
  • A rule concerning drug precursors, which will be repealed because its statutory foundation was repealed in 1992.
  • Rules for the Colorado Refugee Services Program, which will be revised to more accurately state the categories of individuals eligible for refugee services and the section of federal law that creates the eligibility.

All of the recommendations must now be presented to the State Board of Human Services for approval. The Board’s next meeting is Friday, September 9.

Click here to read the full release from the Governor’s Office regarding the rules.

Legal Aid Once Again on the Chopping Block – How the Bar Can Respond

“Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” – Lewis Powell, Jr., U.S. Supreme Court Justice (ret.)

Legal aid is not just a poor person’s issue. “Access to justice is correctly seen as a necessary foundation for a just, vibrant, democratic society,” Lonnie Powers writes in “Tied to the Railroad Track Once Again: The Perils of Legal Aid Funding” for The Nonprofit Quarterly. This may not come as a surprise to some of you, but Colorado Legal Services (CLS), our statewide legal aid agency, is experiencing significant funding cuts that are compromising its ability to meet even the most essential legal needs of Colorado’s low-income population. CLS has only half the staff and at least twice as many clients as it did 40 years ago. With the looming funding cuts, all CLS most likely will be able to do is manage intake and turn prospective clients away. We cannot let this happen. As a profession, we have the power to help solve this crisis.

The Facts

Here are the basic funding facts you need to know:

  • Cuts in federal funding in this fiscal year will cost CLS approximately $170,000 from now through December, and much larger federal funding cuts in 2012 are likely.
  • A reduction in state funding will cost CLS approximately an additional $165,000 over the next 12 months.
  • Another key funding source for legal services comes through interest on lawyers’ trust accounts with the Colorado Lawyer Trust Account Foundation (COLTAF). With interest rates remaining near zero, COLTAF funding continues to be severely compromised. CLS lost $440,000 in COLTAF funding in 2010, and will lose another $200,000 to $250,000 before the end of 2011.
  • The need for civil legal aid has outpaced funding for years. Even before this current crisis, CLS was turning away at least as many eligible clients as it served due to a lack of resources.

The Effects

As funding continues to be cut, the impact will be devastating.

  • More and more eligible Coloradans will go without the services of an attorney and will not have the support they need to assert their rights in desperate situations. This includes women seeking safety from domestic violence for themselves and their children, returning veterans entitled to benefits, and seniors facing foreclosure.
  • There exists a real potential for the layoff of staff attorneys, closure of CLS offices, and less access to an attorney for Colorado residents living outside our metropolitan areas.
  • The prolonged economic crisis has driven many families into poverty, often for the first time, producing even greater demand for assistance from the already overstretched CLS.
  • Ultimately, there will be a reduction in the quality of representation that CLS can offer those Coloradans who cannot afford to pay for a lawyer.

Our Profession Can Take
Ownership of this Looming Issue

Our esteemed profession has responded to this very same issue of funding cuts in the past by creating COLTAF, first initiating and then increasing bar-sponsored pro bono programs, giving generously to the Legal Aid Foundation, and combating efforts in Congress to eliminate all federal funding for civil legal aid—and we can certainly do it again. We can take ownership of this issue—otherwise, we will be GIVING UP on providing civil legal aid.

We now have the chance to reaffirm the institutional role that lawyers and law firms play in supporting the civil justice system and cultivating a sense of responsibility for access to justice among younger and older attorneys alike. As lawyers, we are fortunate to have a certain level of education, wealth, and connections through which we can make things happen. I know that none of us are immune to today’s economic realities, but I ask you to just imagine how much tougher times are for a family that is about to lose a home, for victims of domestic violence, the disabled, children, veterans, and others whose health and safety are at risk every day. If all of us took at least one necessary step to help address the problem, it can and will be solved.

The Most Immediate Ways for You to Help

I am aware that there are many problems in our world that appear beyond our ability to assist. This is not one of them if we as a profession step forward. I offer 10 things you can do today that will help solve this problem and improve access to justice for needy individuals and families:

  1. Call Metropolitan Volunteer Lawyers (303-830-8210), or any other legal aid program in Denver that you’d like to volunteer for, and take a pro bono case.
  2. Make a charitable gift to the Legal Aid Foundation of Colorado at legalaidfoundation.org. Funds raised by the Legal Aid Foundation go to support CLS.
  3. Call your banker and ask for an increase in the interest rate paid on your COLTAF account (the interest earned on those accounts goes to support CLS and Colorado’s civil legal aid delivery system).
  4. Call members of the Colorado congressional delegation to urge their support for an increase in federal funding for legal aid through the Legal Services Corporation.
  5. Call your state senator and representative to urge their support for an increase in state funding for legal aid through the Family Violence Justice Fund. Legal services can have a preventative effect that actually saves money for the state. For example, housing a family in a homeless shelter for just a few weeks is more expensive than supporting a legal aid lawyer that can help a family remain in stable housing (see “The Budget-Slashing Hysteria’s Latest Victim: Legal Aid for the Poor” in Mother Jones).
  6. Amend your written retainer agreement to request client consent to donate any unexpended nominal funds to the Legal Aid Foundation after a reasonable time, in the event the client’s whereabouts are no longer known to you and reasonable efforts to locate the client have been unsuccessful. See CBA Ethics Opinion 95.
  7. If you are a trial lawyer negotiating a class action settlement, consider proposing a cy pres provision that directs unclaimed funds to the Legal Aid Foundation.
  8. Include the Legal Aid Foundation in your estate plan.
  9. Forward this article to your fellow attorneys and citizens and encourage them to take one of these steps, as well.
  10. Give to the Legal Aid Foundation again!

The DBA is also looking into ways it might better assist its members by matching them up with all types of pro bono cases—stay tuned for more information on this. Thank you for taking the time to read my first column for The Docket. I think it is important to discuss this issue. Please feel free to respond with your thoughts and feedback to ilenebloom@hotmail.com.

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.

Colorado Address Confidentiality Program Rules Amended

The rules for the Colorado Address Confidentiality Program have been revised. The proposed amendments have been made to the following rules:

  • Application Assistant Designation
  • Participant Telephone Number and Address Changes
  • Expedited Release of Participant Information to Criminal Justice Officials or Agencies
  • Public School Enrollment and Record Transfers

The Colorado Address Confidentiality Program provides survivors of domestic violence, sexual offenses, or stalking/harassment with a means to prevent abusers and potential abusers from locating them through public records. The goal of the program is to help survivors stay safe by protecting their location. The program is administered by the Colorado Department of Personnel & Administration.

A hearing on the revised rules will be held on Monday, October 3, 2011 at 633 17th Street, Suite 1600, Denver, Colorado 80202, beginning at 10:00 am.

Full text of the proposed rules can be found here. Further information about the rules and hearing can be found here.

Colorado Remembers 9/11: Join Our Elected Officials for a 10th Anniversary Commemorative Concert

September 11, 2011, marks the tenth anniversary of the 9/11 terrorist attacks. In remembrance of this national tragedy, Governor John Hickenlooper and Mayor Michael Hancock are hosting a commemorative event and concert to honor victims, first responders, and members of the United States Armed Forces on Sunday, September 11, 2011, at Civic Center Park in Denver (Colfax and Broadway) from 1:00 – 6:00 pm.

Both the Governor and Mayor will speak at the event, along with Secretary of the Interior Ken Salazar and United States Senators Mark Udall and Michael Bennet.

Other members of the Colorado Congressional Delegation will also be in attendance, including Diana DeGette, Doug Lamborn, Ed Perlmutter, Mike Coffman, Jared Polis, and Cory Gardner.

The event is free and open to the public and is being held in partnership with The Counterterrorism Education Learning Lab (The CELL), The Denver Post and AEGLive Rocky Mountains.

The afternoon will feature a special musical tribute by The Beach Boys, Tyler Ward, and a performance by the Colorado Symphony. The program will begin with a remembrance procession, led by the Colorado National Guard, firefighters, law enforcement, first responders, and memorial pipes and drums, which will be followed a presentation by the Honor Guard, a wreath laying ceremony, firing salute, taps, and a military flyover.

Lawn seating will be available on a first-come, first-served basis; arriving early is encouraged, as are the use of blankets or low-rise concert/beach chairs. Attendees are welcome to bring their own picnics; concessions as well as a beer garden will also be available at the event, which will take place rain or shine.

Click here for more information about Colorado Remembers 9/11.

Tenth Circuit: Judge Not the Alter Ego of the State; No Vicarious Liability for Alleged Sexual Harassment

The Tenth Circuit Court of Appeals issued its opinion in Helm v. State of Kansas on Wednesday, September 7, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner sued the State for sexual harassment under Title VII of the Civil Rights Act of 1964. She was allegedly sexually harassed over a period of almost ten years by a state district judge for whom she served as an administrative assistant. “The district court determined that the State was entitled to summary judgment because [Petitioner] fell within the ‘personal staff’ exemption to Title VII’s definition of ’employee’ and thus did not qualify for the protections afforded by the statute. Alternatively, the court ruled that summary judgment for the State was proper on the basis of the Faragher/Ellerth affirmative defense to employer liability for a supervisor’s sexual harassment of a subordinate.”

The Court agreed with the district court’s determination regarding the Faragher/Ellerth affirmative defense, which precludes vicarious liability against the State for the judge’s alleged actions. State district judges, although they have considerable authority, do not occupy positions in the top echelons of the state’s management, nor do any such judges speak for and represent the state; the essential task of all judges is to be independent of the state. Therefore, the district court correctly determined that the judge was not the alter ego of the State. Additionally, the judge removed himself from all employment decisions concerning Petitioner and played no role in the decision to fire her. The State acted reasonably to prevent and promptly correct the judge’s sexually harassing behavior. By making these determinations, the Court did not need to address the “personal staff” exemption.

Tenth Circuit: Immigrant Ineligible for Asylum; Failed to Prove Attack Was Political Persecution

The Tenth Circuit Court of Appeals issued its opinion in Rivera-Barrientos v. Holder, Jr. on Wednesday, September 7, 2011.

The Tenth Circuit affirmed the Board of Immigration Appeals’ (BIA) decision. Petitioner “suffered a brutal attack at the hands of gang members in her native country of El Salvador. She escaped to the United States and now seeks asylum. She contends she is eligible for asylum under 8 U.S.C. § 1158 because she has faced past persecution on account of her political opinion—opposition to gangs—and her membership in a particular social group—young females who have resisted gang recruitment. The BIA argues that the attack was not on account of her political opinion and that she is not a member of a cognizable social group.” Petitioner appeals from the BIA’s determination that she is not eligible for asylum.

The Court determined that Petitioner failed to uphold her burden of proving that her attack was persecution based on her political opinion or membership and the BIA’s interpretation of the applicable statute was not unreasonable. Therefore, it must conclude that the agency did not abuse its discretion by finding that Petitioner was ineligible for asylum.

Tenth Circuit: Water Allocation Claim Against Resources Board Dismissed for Lack of Federal Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in City of Hugo v. Nichols on Wednesday, September 7, 2011.

The Tenth Circuit vacated the district court’s order and remanded. The City of Hugo, Petitioner, and a public water trust have contracted with the City of Irving, Texas, for the sale of water that Petitioner has been or seeks to be allocated under permits issued by the Oklahoma Water Resources Board. Petitioner and Irving brought suit against the nine members of the Board; Petitioners sought 1) a declaration that certain Oklahoma laws governing the Board’s water allocation decisions are unconstitutional under the dormant Commerce Clause and 2) an injunction prohibiting the enforcement of those laws by the Board. The district court granted summary judgment for the Board, and Petitioner and Irving appealed.

The Court determined that Petitioner, a political subdivision of Oklahoma, lacks standing to sue the Board under the dormant Commerce Clause. “Irving, whose injury is solely premised on a contract it entered into with [Petitioner], likewise cannot demonstrate standing because any injury to Irving cannot be redressed.” Because no plaintiff has necessary standing, the Court vacated the district court’s order and remanded the case to the district court to dismiss for lack of federal jurisdiction.

Tenth Circuit: Unpublished Opinions, 9/7/11

On Wednesday, September 7, 2011, the Tenth Circuit Court of Appeals issued four published opinions and one unpublished opinion.

Unpublished

Williams v. McCallin

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

Colorado Court of Appeals: Week of September 4, 2011 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and eighteen unpublished opinions for the week of September 4, 2011.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Tenth Circuit: Water Compact Authorizes States to Regulate Apportionment and Prevents Challenge under Dormant Commerce Clause

The Tenth Circuit Court of Appeals issued its opinion in Tarrant Reg’l Water Dist. v. Herrmann on Wednesday, September 7, 2011.

The Tenth Circuit affirmed the district court’s decision and dismissal based on standing and ripeness issues. Petitioner sued the nine members of the Oklahoma Water Resources Board and sought a declaratory judgment to invalidate certain Oklahoma statutes that govern the appropriation and use of water and an injunction preventing the Board from enforcing them. Petitioner alleged that the Oklahoma statutes restrict interstate commerce in water and thereby violate the dormant Commerce Clause as discriminatory or unduly burdensome. After the district court granted summary judgement to the Board, Petitioner took steps to export Oklahoma water to Texas, which is not subject to the Compact. Petitioner negotiated a contract with property owners to export groundwater to Texas and also entered a memorandum of understanding with the Apache Tribe concerning the Tribe’s potential water rights. Then Petitioner reasserted its dormant Commerce Clause challenge based on these transactions.

The Court agreed with the district court that Petitioner’s challenges must once again fail. The Court concluded that the Compact authorizes the states to regulate the use of apportioned water and the broad language of key Compact provisions inoculates the Oklahoma statutes challenged here from dormant Commerce Clause attack. The Compact provisions that authorize broad state control of water support the Court’s holding that the Compact gives congressional consent to the states to adopt measures protecting their water apportionments that might otherwise violate the dormant Commerce Clause. Additionally, the district court was correct to dismiss the Apache Tribe issue as not ripe, as there was no confirmation that the tribe had water they were willing to sell to Petitioner.

Governor Hickenlooper Appoints Butler as District Judge in Boulder County

On Wednesday, September 7, 2011, Governor John Hickenlooper announced his appointment of Patrick Daniel Butler to serve as a district judge in the Twentieth Judicial District, which serves Boulder County. Butler will fill the vacancy created by the retirement of the Honorable Lael Montgomery and his appointment will be effective October 1.

Butler is from Superior and currently serves as a magistrate in the Eighteenth Judicial District, where he has worked since 2009. He presides over a civil docket comprised primarily of domestic law, county and small claims civil disputes, protection orders, child support enforcement, compliance reviews, sentencing, juvenile, traffic, and probate.

Previously, Butler worked in private practice and was a partner at Lamm & Butler, where his work focused on civil and criminal cases. He was also an instructor of law at Kaplan College in Thornton and co-authored the article The Ten Commandments of Being Deposed. He earned his bachelor’s degree from Keene State College and his law degree from Gonzaga University.

Click here to read the judicial appointment announcement from the Governor’s Office.