June 16, 2019

Archives for January 12, 2012

Tenth Circuit: Eleventh Amendment Protects State from Suit for Money Damages under ADA when State Revoked Medical License for Public Safety

The Tenth Circuit Court of Appeals published its opinion in Guttman v. Khalsa on Wednesday, January 11, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner is a physician with a history of depression and posttraumatic stress disorder. At the time he brought this case, he was practicing medicine in New Mexico. The Board of Medical Examiners summarily suspended Petitioner’s license after finding clear and convincing evidence that “[Petitioner]’s continuation in practice would constitute an imminent danger to public safety.” Later, “after recognizing an extensive pattern of disruptive and abusive behavior by [Petitioner] in dealing with patients and healthcare professionals, the Board revoked his license. The Board also found that further treatment of his mental health problems was unlikely to succeed, and that [Petitioner]’s inability to interact professionally with others posed a danger to his patients.”

Petitioner challenged the Board’s findings in state court, asserting for the first time that the Board’s actions violated Title II of the ADA. Because Petitioner had not raised an ADA claim before the Board, the state court refused to consider it and affirmed the revocation of his license. Petitioner also filed a pro se complaint in federal district court against New Mexico and two individuals: the Board’s administrative prosecutor and the Board’s hearing officer. The district court granted the Respondents’ motion for summary judgment after finding that the individual defendants were entitled to absolute immunity.

“The question presented in this appeal is whether the Eleventh Amendment protects New Mexico from a suit for money damages under Title II of the Americans With Disabilities Act (ADA).” The Court concluded that it does. “New Mexico has state sovereign immunity from a claim that it violated the ADA when it revoked the medical license of a physician whose practice the state claimed constituted an imminent danger to the public. As a result, [the Court] found the district court did not err by dismissing the ADA claim of [Petitioner] against the State of New Mexico for revoking his medical license. [The Court also concluded that] the state’s actions did not violate the United States Constitution.” However, Petitioner may still have extant claims for prospective injunctive relief.

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

The Tenth Circuit Court of Appeals revised its opinion in Rivera-Barrientos v. Holder, Jr. on Wednesday, January 11, 2012.

The Tenth Circuit granted the petition for panel rehearing in part for the limited purpose of revising text in the first paragraph on page 10 in the original opinion filed on September 7, 2011. Otherwise, the petition for rehearing was denied. The petition for en banc rehearing was denied. The motion for leave to appear and file a brief as amicus curiae in support of petitioner’s rehearing petition was granted.

Tenth Circuit: Unpublished Opinions, 1/11/12

On Wednesday, January 11, 2012, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Unpublished

Johnston v. Jones

Davis v. Akin’s

United States v. Carranza-Hurtado

Leach v. Astrue

Whitmore v. Jones

Van Dyke v. United States

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

Colorado Court of Appeals: Week of January 8, 2012 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and thirty-five unpublished opinions for the week of January 8, 2012.

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

Water Court Forms Again Updated by Colorado State Judicial

The Colorado State Judicial Branch has once again issued numerous revised forms for use in the state’s water courts, including many that were just previously updated in October. Also, a new Denver Basin Application form was issued. Practitioners should begin using the new forms immediately.

State Judicial also advises that these revised forms must be used for applications filed on and after January 1, 2012. All deadlines that occur after January 1, 2012, even if the deadlines are in existing cases, should be calculated under the amended Water Court Rules and/or amended Rules of Civil Procedure, unless there is a Water Court order to the contrary.

The updated forms are available only in Microsoft Word format; Adobe Acrobat (PDF) and Word template formats are likely forthcoming. Download the new forms from State Judicial’s individual forms pages, or below.

Water

  • JDF 296W – “Application for Water Rights (Surface)” (revised 12/11)
  • JDF 297W – “Application for Water Storage Right” (revised 12/11)
  • JDF 298W – “Application for Underground Water Right” (revised 12/11)
  • JDF 299W – “Application for Change of Water Right” (revised 12/11)
  • JDF 300W – “Application: For Finding of Diligence or To Make Absolute” (revised 12/11)
  • JDF 301W – “Application for Approval of Plan for Augmentation” (revised 12/11)
  • JDF 308W – “Denver Basin Application” (12/11)

Gary M. Jackson Receives Colorado Bar’s Highest Honor

In many ways, the culture of 1970s can seem very distant, as Gary M. Jackson noted when he accepted the Colorado Bar Association’s Award of Merit on Jan. 6.

When he started his first job out of law school at the Denver District Attorney’s Office in 1970, he said he had a four-inch afro, a new purple Dodge Challenger with a black racing stripe, and several expensive three-piece suits.

“You guessed it, ‘The Mod Squad’ was my favorite TV show,” he said, laughing.

At the time, he and other new prosecutors were photographed and appeared in a Denver newspaper. A Colorado Supreme Court justice later commented in an editorial that his appearance did not represent the dignity of the office of the Denver District Attorney.

“I guess he was talking about my hair and not my color,” he said.

At the time, Jackson was the only black prosecutor in the state. In rebuttal, his mother, Nancy, wrote the justice a letter praising her son’s abilities. That justice invited Jackson and his mother to lunch, which lead to a friendship.

Still, the landscape for lawyers of color was different. Jackson helped found the Samy Cary Bar Association, an African-American legal association, in 1971. When it was formed, there were only 15 black lawyers in Colorado, Jackson said.

“We came together to create a bar and expand our influence and to help provide opportunities for black lawyers and lawyers of color—not through separation, but through inclusiveness,” he said.

He also was a founding member of the Sam Cary Scholarship Endowment Fund, which provides scholarships to law students at the University of Colorado and the University of Denver, and he was the first black member of the Denver Athletic Club.

Jackson became a partner at DiManna & Jackson in 1976. Though there were jokes that Jackson took the position at a salary less than their legal secretary, he said money wasn’t the most important thing.

“What was important was the opportunity to own my own business,” he said.

Joking aside, CBA President David L. Masters said it’s important to recognize the achievements of Jackson: “A man who is dedicated to the legal profession, the administration of justice, and the community as a whole.”

Jackson chairs the Delta Eta Boule Foundation, which provides scholarships to Denver high school graduates. As an advocate for youth, he has chaired Northeast Denver Youth Services, which offers recreational and educational opportunities. He also has been involved with the Urban League of Metropolitan Denver, the United Negro College Fund, the Cleo Parker Robinson Dance Ensemble, 100 Black Men of Denver, Inc., Beckwourth Outdoors, and the Sixteenth of May Foundation.

He has been honored in the past by the Sam Cary Bar Association with King Trimble Life Time Achievement Award in 2006, and by the University of Colorado with the William Lee Knous Award in 2010, the Norlin Award in 2008, and the Order of Coif Award in 2003.

More than 400 people attended the Bar Fellows Dinner at the Hyatt Regency Denver to celebrate Jackson receiving the Award of Merit, the CBA’s highest honor. Also, for the first time, the CBA Young Lawyers Division’s Gary L. McPherson Outstanding Young Lawyer of the Year honoree Kara Veitch was honored at the event.

“I’m honored and humbled to be given this year’s Young Lawyer of the Year award,” she said. “I’m often asked how I do all of these things that I do, and believe me it’s not without help and support and inspiration of other people in this room.”

Veitch thanked her grandmother, calling her the glue that holds their family together; her parents for showing her the importance of community involvement; her husband, who makes sacrifices so that she can succeed; and her mentors.

Jackson echoed Veitch’s sentiments.

“I know that my life has been enriched by every person with whom I have come into contact in my 41 years of practicing law,” he said. “In sharing your knowledge and ideas with me, I have grown not just as an attorney, but as a husband, a father, a son, and human being.”

Sara Crocker is a communications specialist with the Colorado and Denver Bar Associations. She is also the editor of the Denver Bar Association’s member publication, The Docket.

Understanding Your Avvo Rating: How It’s Calculated and Why You Should Care

Avvo is a free online directory of lawyers that the public can use to search by state and practice area. You may be asking yourself, isn’t that basically the business White Pages, or the bar association’s Find-A-Lawyer directory, or Martindale-Hubbell revisited? Pretty much. A lawyer’s Avvo profile is essentially an online résumé or portfolio that lists achievements, publications, biographical information, and, if the lawyer is so inclined, photographs and videos of his or her choosing.

Unlike those more, ahem, venerable (or stodgy, depending on your perspective), ways to find a lawyer, lawyers seem to absolutely hate Avvo. It raises the ire of lawyers, in part, because Avvo represents a visible credibility check. A lawyer’s Avvo profile frequently will show up in the top 10 Google results, and Avvo crawls state ethical records and posts any run-ins with the Office of Attorney Regulation. This has resulted in several lawsuits from lawyers with a rap sheet.

That’s not the greatest criticism though—most of our fellow professionals keep their noses clean. The greater complaint is that, along with your fluffy profile, Avvo posts a rating out of 10.

According to the site: The rating is calculated using a mathematical model that considers the information shown in a lawyer’s profile, including a lawyer’s years in practice, disciplinary history, professional achievements, and industry recognition.

The term “mathematical model” is something I tend to associate with being what I would be unable to calculate. Avvo also claims their model is proprietary, which leads me to believe that it is a formula for some amazingly strong, light, and beautiful polymer—or something. With those considerations in mind, I set about cracking their formula by adding and subtracting credentials from my profile.

Essentially, every lawyer starts at 5.6. The “formula” is this: for every credential added in a different category, an attorney gets three tenths of a point. Peer reviews are worth the same. Publications in the same periodical are discounted a bit. That’s basically it. Add three publications and a presentation, and, by their formula, you are now a 6.9-rated lawyer.

There is a caveat to the site: The Avvo rating is not intended to be the only thing you use in choosing a lawyer.

Yeah. Right. Just like how Ebert’s thumb or Pitchfork’s numerical rating is only a small consideration in figuring out what movies to watch or music to buy. It’s absurd to think that legal services can and should be rated this way, but the Avvo profile is there, whether or not you claim it.

The best solution is just to spend a few minutes filling out the profile. We already have LinkedIn, Facebook, Justia—what’s one more? It really is nothing more than a summary résumé. In the event that a lawyer doesn’t choose to claim and fill out the profile, his or her information still appears on the website, along with any ethical concerns. However, an ethically clean but otherwise unknown (at least, to Avvo) attorney is not assigned a rating and is tagged as “no concern.”

Although building your Avvo profile is the practical solution—and it is a bit silly to get worked up about some website—something still rankles about the idea that the quality of a lawyer’s services can be determined by adding and subtracting résumé lines. To the extent that consumers are buying what Avvo is selling, complaining about it isn’t going to help. It’s up to us to manage the public perception of our profession relationships and public service.

Chris Mommsen is a criminal defense attorney in Denver.

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.