June 23, 2019

Archives for January 10, 2012

D. Colo. Civil Settlement Conferences No Longer Routine

In a surprise move by the Colorado federal district court last month, the customary D. Colo. magistrate judge settlement conference has essentially been cut back significantly. Apparently frustrated with the typical half-day exercise, sometimes stretching over several sessions, featuring oft-times unprepared litigants, the district judges implemented revised Local Rule 16.6, effective December 1, 2011. The revised rule and the redline edits can be viewed below.

As Magistrate Judge Boland explained at the Faculty of Federal Advocates annual meeting in mid-December, parties will now need to file a motion with their district judge, or the magistrate judge if exercising consent jurisdiction, to warrant a classic settlement conference: “It is going to be hard to obtain, and you will have to persuade a judge that you are close to settlement and need help.” In short, for those parties who historically dropped in unprepared for an early settlement meeting, or did not wish to make the first move – hoping that the magistrate judge would extract offers, uncover and convey key information, and do the heavy lifting in settlement – the game is over. As Boland elaborated, “there is a booming industry of private mediators, and there is only a small cadre who can adjudicate cases. It makes sense in a very busy court to use resources to adjudicate.”

The revised rule puts the burden on counsel to show some good reason (the rule does not require the high showing of “good cause”) to trigger the traditional magistrate-judge-led settlement conference. Though probably not very early in the litigation process, as it appears that any “early” request will qualify only for “early neutral evaluation” (“ENE” in the ADR vernacular) (Rule 16.6A), which theoretically could be quite an abbreviated effort. Thus, parties will likely need to turn to private ADR options unless they can explain in detail to the court that far reaching settlement steps have already been taken by both sides, or perhaps that one of the litigants cannot afford his or her half of the cost of a private neutral.

The revised rule is somewhat controversial. The comment period was relatively short and no comments were disclosed by the court, though several respondents went public with their opposition to the change. In addition, several senior Article III judges were concerned that the freeing up of magistrate judges from settlement work would inexorably lead to an unconstitutional expansion of adjudications by the Article I magistrate judges. Read Judge Kane’s dissent concerning revised Rule 72.2 on magistrate judge consent jurisdiction here.

It is too early to speculate about the ultimate impact of the Rule 16.6 revision. Each judge retains the right to direct the parties, presumably either by motion or sua sponte, to pursue either ENE or an “other” (undefined) ADR proceeding:  this could presumably still be the traditional magistrate judge settlement conference, or more likely a private-sector mediation, or any of a host of different ADR approaches, such as binding arbitration, so-called med/arb (mediation, followed by binding arbitration), a mini-trial, or whatever the parties might jointly consent to. Public reports indicate that the dissenting senior judges are continuing with their traditional approach, and that some other district judges have granted requests for settlement conferences since the revision was implemented in December. Nonetheless, given the new approach, it seems likely that at least a few hundred cases each year will no longer receive free settlement help from the District Court.

There were approximately 700 settlement conferences convened in the District last year. Some 25% involved employment and ERISA disputes, 10% involved personal injury matters, and single-digit percentages were taken up by, in order, contract disputes, civil rights complaints, fair debt collection work, insurance disputes, intellectual property cases, and business and product liability matters. (Notably, the vast majority of these cases settled for less than anticipated defense costs through trial).

How will these now be handled? Although the D. Colo. clerk of the court is designated to “implement, administer, oversee, and evaluate” the court’s ADR program (Rule 16.6 D), the court has quite purposefully chosen not to assemble a referral roster of potential neutrals, as it does not wish to provide an imprimatur for any private person or group. It will thus be left to the ADR professionals in the district to help litigants make their way in the new paradigm.

It is worth noting that this new approach is the way that many federal districts already operate. For those raised in this district court, it might have been assumed that all 94 districts have magistrate judge settlement conferences, but that is not the case. For instance, the Utah federal court refers out its settlement cases, as does the Southern District of Florida, for the most part.

It is possible that the district court or the ADR-designee clerk of the court might later choose to establish a more formal program, or at least a roster of eligible neutrals. The Alternative Design Resolution Act of 1998, 28 U.S.C. § 651, found that “alternative dispute resolution, when supported by the bench and bar, and utilizing properly trained neutrals in a program adequately administered by the court, has the potential to provide a variety of benefits . . . .” The Act provides that the district designee, who should be knowledgeable in ADR practices and processes, “may also be responsible for recruiting, screening, and training attorneys to serve as neutrals and arbitrators” in the court’s ADR program.

Although the private sector ADR community in Colorado is very active (the Dispute Resolution section of the CBA has over 250 members), there are only a few seasoned veterans of this District Court who are serving as neutrals locally, mainly former magistrate judges and senior federal litigators. There is no formal “federal neutral” roster, and the FFA and other similar groups may wish to establish some training programs and eligibility rosters to help fill this gap. As Vice-Chair of the DR section of the CBA, I will personally be contacting the Federal Judicial Center and the Administrative Office of the U.S. Courts to find out what assistance they may make available pursuant to the Act.

Revised Rule:

D.C.COLO.LCivR 16.6 – ALTERNATIVE DISPUTE RESOLUTION

A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. A district judge or a magistrate judge exercising consent jurisdiction may direct the parties to a suit to engage in an early neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Redline Edits:

D.C.COLO.LCivR 16.6 – A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. At any stage of the proceedings, on a A district judge’s initiative or [sic – or] a magistrate judge exercising consent jurisdiction pursuant to motion or stipulation of counsel or the pro se parties, a district judge may direct the parties to a suit to engage in an early settlement conference neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause. Unless otherwise ordered by a judicial officer, cases exempt from this rule are:

1. those in which the plaintiff is a prisoner proceeding pro se; and

2. habeas corpus actions.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Greg Whitehair, Esq., is a nationally certified mediator and arbitrator and Vice-Chair of the Dispute Resolution Section of the Colorado Bar Association. He is in the process of creating the website www.DColoADR.com to keep track of developments in the Colorado federal ADR community. He also owns IP Resolution Co. LLC, a national ADR consultancy specializing in intellectual property and high-tech commercial disputes. He can be contacted at jgw@ipresolutionco.com.

Tenth Circuit: Unpublished Opinions, 1/9/12

On Monday, January 9, 2012, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Unpublished

Abajue v. Holder, Jr.

Rios v. Dona Ana County

Henderson v. Parker

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

Colorado Court of Appeals: Trial Court Had No Authority to Extend Deadline for Filing Motion for Certification; Petitioners Failed to Establish Good Cause for Failure to Meet Deadline

The Colorado Court of Appeals issued its opinion in Farm Deals, LLLP v. Colorado Dep’t of Revenue on January 5, 2012.

Timeliness Under C.A.R. 4.2.

Petitioners filed a petition to appeal an interlocutory order of the trial court pursuant to CRS § 13-4-102.1 and C.A.R. 4.2, as well as a motion for leave to file the petition late. The motion was denied and the petition was dismissed.

Petitioners filed an appeal in the trial court challenging determinations by the Colorado Department of Revenue (Department) denying income tax credits for conservation easements during the 2003 tax year. They did not name the transferees of the tax credits as parties, and the Department and its Executive Director moved for an order requiring them to be joined as parties pursuant to C.R.C.P. 19. The court granted the motion over petitioners’ objection. Respondents then filed a motion requesting the court to order petitioners to personally serve each of the transferees (there were approximately eighty of them) with a summons and the complaint. Petitioners argued service by mail was permitted under CRS § 39-21-105.5.

On September 29, 2011, the trial court ruled that CRS § 39-21-105.5 was inapplicable, and that CRS § 39-22-522.5 required petitioners to serve the transferees in accordance with C.R.C.P. 4. On October 19, 2011, petitioners filed a motion requesting certification of the order for an interlocutory appeal under CRS § 13-4-102.1. Respondents opposed on numerous grounds, including that it was not filed with fourteen days of September 29 as required by C.A.R. 4.2(c). The trial court granted the motion for certification by order dated November 15, 2011.

On December 7, 2011, petitioners filed their petition to appeal the service of process issues decided by the September 29 order and certified by order of November 15. They also filed a motion to permit the late filing of the petition.

C.A.R. 4.2 was promulgated by the Colorado Supreme Court to establish procedures for applying CRS § 13-4-102.1. Here, petitioners failed to meet the deadline for certifying the appeal fourteen days after the order and failed to meet the deadline for filing with the court of appeals fourteen days after the date of the certification.

The Court of Appeals found that the trial court had no authority to extend the fourteen-day deadline for filing a motion for certification. The Court also concluded that petitioners failed to establish good cause for their failure to meet the jurisdictional deadline of C.A.R. 4.2(d). The Court noted that, pursuant to C.A.R. 26(b), it is authorized to extend the deadline for good cause due to excusable neglect. Here, petitioners’ counsel stated only that he entrusted the filing of the petition to his secretary, who erroneously filed it in the trial court, and that he “is unfamiliar with Lexis Nexis filing.” The Court held these assertions demonstrated carelessness, not excusable neglect. The petition was dismissed as untimely.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Court of Appeals: Board of Pharmacy May Deny Application for Licensure when Applicant Has Engaged in Activities that Are Grounds for Discipline

The Colorado Court of Appeals issued its opinion in Colorado State Board of Pharmacy v. Priem on January 5, 2012.

Pharmacy License—Application—Rehabilitation—Reinstatement—Due Process.

Loren Priem appealed the Final Agency Order (Final Order) of the Colorado State Board of Pharmacy (Board), which denied Priem’s application to become a pharmacy intern. The order was affirmed.

While he was a licensed pharmacist in Colorado, Priem stole more than 1,500 tablets of schedule II controlled substances, as well as other drugs, worth more than $5,000 from the pharmacies where he worked. He sold or gave away the drugs to persons who did not have prescriptions for them, one of whom was an addict. As a result of these actions, criminal charges were brought against Priem, and he relinquished his pharmacist license. He was convicted of two felonies and a petty offense.

Three years after relinquishing his license, and after completing his sentence, Priem applied to be a pharmacy intern. In its Final Order, the Board adopted the administrative law judge’s (ALJ) findings of fact, including the finding that Priem had been rehabilitated. However, the Board disagreed with the ALJ’s conclusion and denied Priem’s application.

On appeal, Priem asserted that the Final Order must be reversed because his due process rights were violated. Priem claimed that the Chief Inspector—who investigated the case against him, served as the Board’s advisory witness, and advocated for denial of his license—should not have been present during the Board’s deliberations. The Court of Appeals noted that it did not condone the presence of the Chief Inspector during deliberations, but upheld the decision because the remedy would have been to remand to the Board, and this remedy was waived by Priem.

Priem also contended that the Board erred in denying his application on the merits. Neither CRS § 24-5-101 nor Colorado case law supports Priem’s contention that reinstatement of his license was mandatory on his demonstration of rehabilitation. The Board can substitute its judgment for that of an ALJ with respect to an ultimate conclusion of fact, and the Board’s determination of such an issue will be upheld if it has a reasonable basis in law and is supported by substantial evidence in the record. Additionally, the Board may deny an application for licensure when the applicant has engaged in activities that are grounds for discipline. Here, there was substantial evidence in the record as a whole to support the Board’s decision to deny Priem’s application for licensure based on the pertinent circumstances surrounding his prior convictions.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Court of Appeals: Counties Must Provide Drop-Off Boxes for Mail-In Ballots at Every Polling Place on Election Day, Notwithstanding Additional Costs

The Colorado Court of Appeals issued its opinion in Gessler v. Doty on January 5, 2012.

Injunction—Election—Mail-in Ballots—Polling Place—Cost—County—Unfunded Mandate Statute.

Defendants, Nancy Doty, in her official capacity as the Clerk and Recorder for Arapahoe County, and the Arapahoe County Board of County Commissioners (county), appealed the court’s injunction in favor of plaintiff, the Colorado Secretary of State (state), requiring the county to bear the cost of providing drop-off boxes for mail-in ballots at every polling place on election day. The judgment was affirmed.

In 2009, the General Assembly passed House Bill 1186, amending Colorado’s Election Code (Code), CRS § 1-8-113(1)(a), to permit voters personally to deliver mail-in ballots “on election day to any polling place in the county in which the elector is registered to vote.” An effect of this amendment was to require Arapahoe County to make available 197 additional locations for drop-off of mail-in ballots during the 2010 general election, at an alleged added cost of $80,000.

The county argued that the court erred in requiring it to provide additional services without appropriate funding from the state. Specifically, the unfunded mandate statute provides that any new state mandate or increase in the level of service for an existing state mandate that is not accompanied by a reimbursement to cover local governments’ costs “shall be optional on the part of the local government.” CRS § 1-5-505(1), however, is unequivocal; it provides that “the costof conducting general, primary, and congressional vacancy elections . . . shall be a county charge.” Even if CRS § 1-8-113(1)(a) is a state mandate, it supersedes the unfunded mandate statute. Thus, by its terms, the Code requires that the county provide and bear the costs of providing election services to whatever extent dictated by the General Assembly, notwithstanding that changes in required services may create additional costs. Accordingly, the trial court correctly determined that counties must provide drop-off boxes for mail-in ballots at every polling place on election day.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Court of Appeals: Placing Foster Children In Unsafe Home is Violation of Children’s Constitutional Rights; Officials Not Entitled to Qualified Immunity

The Colorado Court of Appeals issued its opinion in Shirk v. Forsmark on January 5, 2012.

Adoption—Department of Social Services—42 U.S.C. § 1983—Abuse—Injuries—Foster Care—Qualified Immunity.

Defendants Joan Forsmark, Cathy O’Donnell, and Angela Lytle, who are all employees of the Adams County Department of Social Services (Department), sought review of the trial court’s orders denying their motions for summary judgment, which asserted qualified immunity for their discretionary decisions as government officials regarding claims arising from the placement and adoption of foster children. The orders were affirmed.

Plaintiffs Michael and Joanna Shirk filed this action individually and on behalf of their adopted children, B.N.S., R.T.S., and B.K.S., who were in the Department’s custody from approximately August 2000 through their adoption in August 2003. The case from which this interlocutory appeal arises involves 42 U.S.C. § 1983 claims on behalf of children for injuries suffered in connection with their foster care placement and adoption.

Defendants contended that because their conduct did not constitute a violation of a clearly established constitutional right, the trial court erred in denying them qualified immunity. Children in the state’s legal custody have a clearly established “constitutional right to be reasonably safe from harm; and that if the persons responsible place children in a foster home or institution that they know or suspect to be dangerous to the children they incur liability if the harm occurs.” Here, plaintiffs alleged that Forsmark placed the children in an obviously dangerous foster home because (1) there were previous reports of abuse at that home; (2) the previous foster mother, Penny Staley, had been placed on the central registry for child abuse; (3) two of Staley’s adoptive children were reported for sexually abusing other children; (4) Forsmark and O’Donnell ignored many signs of ongoing sexual abuse while the children were at the Staley home; and (5) defendants failed to disclose to the Shirks the abuse, including incestuous behavior between the children. Because plaintiffs alleged conduct violated the constitutional rights of B.N.S., R.T.S. and B.K.S, defendants were not entitled to summary judgment based on qualified immunity.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Court of Appeals: Prosecution Did Not Need to Stipulate to the Fact that DNA from Cigarette Butt Matched Defendant’s DNA

The Colorado Court of Appeals issued its opinion in People v. Morales on January 5, 2012.

Burglary—Dwelling—Theft—Stipulations—C.R.E. 404(b).

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of second-degree burglary of a dwelling and theft. The judgment was affirmed.

Defendant was charged with burglary and theft in connection with the burglary of a house located on West Cedar Avenue in Denver (Cedar home), which is not part of this appeal. Defendant also was charged with second-degree burglary of a dwelling and theft involving the burglary of a house located on South Stuart Street in Denver (Stuart home). At trial, evidence of the Cedar home incident was admitted as evidence of other acts pursuant to C.R.E. 404(b). The jury found defendant guilty of both second-degree burglary of a dwelling and theft. This appeal followed.

Defendant contended that the trial court abused its discretion by not requiring the prosecution to stipulate to the fact that the DNA from the cigarette butt found in the Stuart home matched his DNA. Defendant’s proffered stipulation would have affected the probative value of the DNA evidence as relevant to defendant’s identity. Therefore, the trial court did not abuse its discretion in refusing to require the prosecution to accept defense counsel’s proposed stipulation. The prosecution was entitled to prove the elements of its case against defendant by relying on DNA evidence and testimony about that evidence, especially since the crux of the prosecution’s case was identifying defendant as the perpetrator of the charged crimes.

Defendant next contended that the trial court abused its discretion in admitting evidence of the Cedar home incident pursuant to C.R.E. 404(b). Due to the high degree of similarity between the Cedar home incident and the facts of the present case, the trial court did not abuse its discretion in admitting the other act evidence for the limited purposes of showing modus operandi, common plan or scheme, and intent.

Defendant also argued that the evidence was insufficient to support his conviction for second-degree burglary of a dwelling. Specifically, he contended that the evidence was insufficient to show that he entered the Stuart home and to show that the Stuart home was a “dwelling.” However, when the owner of the Stuart home cleaned the house two days after the burglary, he found a cigarette butt with defendant’s DNA in the kitchen. This was sufficient evidence to allow the jury to conclude that defendant entered the Stuart home. Additionally, although the home was uninhabited and was being “professionally remodeled” at the time of the burglary, it was still a “dwelling,” because it was intended to be used for habitation in the future.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Court of Appeals: Trial Court Must Determine Whether Defendant Was Mentally Ill when He Requested to Represent Himself

The Colorado Court of Appeals issued its opinion in People v. Davis on January 5, 2012.

Competency—Mental Illness—Ineffective Assistance of Counsel—Possession—Distribution—Controlled Substance—Double Jeopardy—Guilty Plea.

Defendant appealed (1) the judgments of conviction for possession and distribution of a controlled substance entered after a jury verdict in Case No. 06CR10189; and (2) the judgments of conviction for two counts of possession of more than one gram of a controlled substance entered as a result of guilty pleas in Case Nos. 05CR1486 and 05CR3846. The case was remanded with directions.

Defendant contended that the trial court erred by denying his request to dismiss counsel and represent himself in Case No. 06CR10189. Courts may deny such requests made by defendants who are competent to stand trial, but whose mental illness renders them mentally incompetent to conduct their trials by themselves. Although the U.S. Constitution does not mandate this result, it permits it. Here, the trial court used the incorrect standard in determining whether defendant was competent to proceed to trial without counsel. Therefore, the trial court must determine on remand whether defendant was so mentally ill when he requested to represent himself that he was incompetent to conduct his trial without the assistance of counsel. If the court finds that defendant was competent to conduct his trial under this standard, the court must vacate the judgment of conviction and proceed accordingly.

Defendant next argued that the trial court erred by not adequately inquiring into his claims that substitute trial counsel was ineffective and labored under a conflict of interest. The record supports the adequacy of the trial court’s inquiry about this issue and the potential conflict of interest caused by defendant’s ethical complaint against counsel, as well as the court’s finding that defendant’s dissatisfaction pertained only to matters of trial preparation, strategy, and tactics.

Defendant further contended that the jury convictions for both possession and distribution of a controlled substance violate constitutional protections against double jeopardy, and that the conviction for possession of a controlled substance therefore must be vacated. Because the evidence was sufficient to support a finding that the possession and distribution charge each was based on a different quantum of drugs, defendant’s conviction on both counts did not violate double jeopardy principles.

Defendant also argued that it was error for the trial court to decline defendant’s request to withdraw his guilty pleas in Case Nos. 05CR1486 and 05CR3846. The decision to ask a court to withdraw a guilty plea is the defendant’s. Defense counsel is obligated to advise the defendant about the consequences of such a decision, but the defendant should have the last word. Here, because the decision to withdraw the guilty pleas was not a matter committed to substitute trial counsel’s discretion, the court abused its discretion when it declined to consider defendant’s request. The case was remanded for further inquiry on this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.