July 18, 2019

Archives for February 23, 2012

CBA Board of Governors Support Request to Courts to Provide Emergency Funding to Legal Aid

The Colorado Bar Association voted to request that the Colorado Supreme Court allocate a portion of the funds received from attorney registration fees to help meet an emergency shortfall in funding for civil legal services at a special meeting of the Board of Governors on Thursday, February 16.

CBA President David Masters sits with Colorado Access to Justice Commission Chair Fred Baumann, CBA Executive Director Chuck Turner, and CBA Assistant Executive Director Dana Collier Smith.

For the past three years, Colorado Legal Services (a nonprofit corporation that has assisted low-income people and seniors with civil legal issues in Colorado for more than 85 years) has been faced with decreased funding from three of its primary resources : federal  appropriations through the Legal Services Corporation, grants from COLTAF (the Colorado Lawyer Trust Account Foundation), and state funding from the Family Violence Justice Fund. Indeed, CLS is anticipating about $3.2 million dollars less in funding this fiscal year than it received in 2009—a decrease of about 30 percent.

The Colorado Supreme Court has approximately $12.4 million in its attorney regulation cash fund, of which, approximately $8.6 million is allocated to the Office of Attorney Regulation. The proposal is for CLS to receive two contributions of an amount to be determined by the Supreme Court, one in 2012 and one in 2013. According to supporters, this would limit the impacts of these cuts in funding to CLS allowing them to maintain services to low-income clients. This funding would be limited to two emergency payments only.

At the meeting, members of the Board of Governors voiced their support and concerns about requesting that the court allocate money for legal services from its attorney registration fees. Opponents of the request said while they understand the need for legal aid funding, they were concerned that there was not a long-term funding plan presented to ensure that legal aid finds a solution to its funding deficits.

Members of the CBA’s Board of Governors attended in person at the CBA-CLE offices and via the phone.

Others were concerned as to whether the court could spend these funds. Members were assured that even though the last fee increase in attorney registration fees was back in 2006, there are adequate funds for the operation of the Office of Attorney Regulation, even with this proposed transfer.  Ultimately, the Colorado Supreme Court has discretion over the spending of this money and will make the final decision on whether to provide this emergency funding to CLS.

Supporters noted that all attorneys are aware of the backlog of civil cases and that people struggle to navigate that system alone; requesting this funding would allow CLS to continue its mission and serve those who would not otherwise be able to afford an attorney.

Following a failed motion to table the discussion until the May Board of Governors meeting, the request was approved overwhelmingly with only a handful of nays.

The resolution states:

Whereas, the Colorado Bar Association Board of Governors recognizes the significant contributions to the goal of ensuring equal access to the courts in the State of Colorado made by Colorado Legal Services (CLS) and its predecessors for many years in providing representation to Colorado’s indigent citizens in a wide variety of civil matters;

Whereas, over the past three years, CLS has experienced significant decreases in funding that will greatly limit its ability to carry out its mission during at least the next two years;

Whereas, the Colorado Bar Association Board of Governors determines that the continued funding, operation, and support of CLS is necessary to protect Colorado’s indigent population; further the interests of Colorado attorneys and Colorado Bar Association members in just and efficient courts; and ensure access to equal justice within the Colorado legal system; and

Whereas, the Colorado Bar Association Board of Governors is informed that the Colorado Supreme Court currently has available to it significant surplus funds from attorney registration fees paid by Colorado attorneys, which the Colorado Supreme Court might allocate to help alleviate the short-term crisis at CLS;

Now therefore, the Colorado Bar Association Board of Governors resolves that the Colorado Bar Association president provide a written request on behalf of the Colorado Bar Association that the Colorado Supreme Court authorize two annual, sizable emergency payments from surplus funds in the attorney registration fund to Colorado Legal Services.

Automatic Case Update RSS Notification Available from the Federal Courts

According to the United States Courts website, many federal courts now provide automatic case notification through the use of RSS feeds, allowing the public to easily stay informed of newly docketed events.

To do so, anyone can subscribe to a court’s RSS feed, which is free and includes automatic notification of activity in individual cases the user selects.

The feed offers summarized text, such as the name of the document filed, with links to the document and docket report. Results may be sorted by date or case title.

Users must have an account with the judiciary’s Public Access to Court Electronic Documents (PACER) system, and log in to PACER to view the document or docket report linked to the RSS feed. There are many available RSS readers that offer the capability.

To learn which district, bankruptcy, and appellate courts have implemented RSS, visit the PACER website, and then click on the court’s RSS feed icon to display the feed.

Fees apply for electronic access to most documents. The current fee is eight cents per page, with a maximum charge of $2.40 per document. There is no fee for access to court opinions, and fees are waived for users who incur less than $10 of use in a quarterly billing cycle.

Tenth Circuit: Government Properly Withheld Six Mug Shots from Newspaper under Exception to FOIA

The Tenth Circuit Court of Appeals published its opinion in World Publishing Co. v. United States Dep’t of Justice on Wednesday, February 22, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is publisher of the Tulsa World newspaper and appeals from the district court’s judgment that Respondents properly withheld six booking photographs (mug shots) requested by Tulsa World. Tulsa World requested the photos under the Freedom of Information Act (FOIA), and the government relied upon Exemption 7(C) to withhold them. On appeal, Tulsa World argues that the district court erred in granting the government’s motion for summary judgment and denying it discovery so that it might better respond to that motion.

“Congress enacted the FOIA to ‘open agency action to the light of public scrutiny.’ There are certain instances, however, when Congress has deemed disclosure inappropriate; these exceptions are covered by 5 U.S.C. § 552(b). The government bears the burden of demonstrating that the request falls into one of the enumerated exceptions, and we construe narrowly in favor of disclosure.” A three-part test has is generally followed to determine if information is covered by Exemption 7(C): “A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure.” It is undisputed that the photos were taken for a law enforcement purpose. The Court, however, determined that “a booking photo is intended for use only by a specific and small group of people,” which provides reason for a court to protect an individual’s privacy interest in that photo. Also, while the paper suggests that several public interests will be furthered by disclosing the photos, the Court found that Tulsa World’s request would not further the purpose of the FOIA. Lastly, the district court did not abuse its discretion by denying discovery.

Tenth Circuit: Conviction for Illegal Reentry Affirmed but Resentencing Required as District Court Improperly Denied Request to Represent Himself at That Proceeding

The Tenth Circuit Court of Appeals published its opinion in United States v. Loya-Rodriguez on Wednesday, February 22, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner appeals his conviction and sentence for the offense of illegal reentry after deportation subsequent to an aggravated felony conviction. “He contends that the district court denied his Sixth Amendment right to represent himself both at trial and at sentencing.” The Court affirmed Petitioner’s conviction because he failed to make a clear and unequivocal request to represent himself at trial. But the Court remanded to vacate Petitioner’s sentence and then resentence him because he did make such a request to represent himself at sentencing.

Tenth Circuit: Strike Can Properly Be Assessed when Claims Dismissed in Part for Failure to State a Claim and Exhaust Administrative Remedies and No Claims Allowed to Proceed on the Merits

The Tenth Circuit Court of Appeals published its opinion in Thomas v. Parker on Wednesday, February 22, 2012.

The Tenth Circuit denied Petitioner’s motion to proceed on appeal without prepayment of fees. Petitioner is a prisoner who wants to appeal the district court’s entry of summary judgment in favor of Respondent on his claims that employees of the Oklahoma Department of Corrections violated his constitutional rights. Respondents object to Petitioner’s motion to proceed on appeal in forma pauperis because Petitioner has three “strikes” under 28 U.S.C. § 1915(g) because he has had three prior civil actions or appeals dismissed as frivolous, malicious, or for failure to state a claim.

The Court agreed in finding that Petitioner has three strikes. It is undisputed that Petitioner has two strikes under based on two frivolous appeals that he filed in 2010. Whether Petitioner should be assessed a third strike based on the district court’s dismissal in 2008 of an action is the issue. “[I]t is well established that a partial dismissal based on one of the grounds enumerated in § 1915(g) is generally not a proper basis for assessing a strike.” However, the Court was persuaded by the Sixth Circuit, which “has held that a strike can properly be assessed under § 1915(g) when . . . the plaintiff’s claims are dismissed in part for failure to state a claim and in part for failure to exhaust administrative remedies, and no claims are allowed to proceed on the merits.” As such, the third strike was assessed against Petitioner.

Tenth Circuit: Thirteen-Year Gap Between Relevant Conduct and Charged Offense Too Long for “Same Course of Conduct,” But Not for “Common Scheme or Plan”

The Tenth Circuit Court of Appeals published its opinion in United States v. Damato on Wednesday, February 22, 2012.

The Tenth Circuit affirmed the district court’s conviction and sentence. Petitioner appeals his 96-month sentence for conspiracy to distribute marijuana and “argues that the district court erred in calculating drug quantity by including as relevant conduct a drug transaction that occurred more than thirteen years prior to the offense of conviction. The government argues only that this transaction was part of the ‘same course of conduct’ as the offense of conviction.”

The Court disagreed with the government’s contention. “The thirteen-year interval at issue far exceeds the gap between relevant conduct and the charged offense in the case law of any circuit including [the Tenth]. Further, that extreme lack of temporal proximity was not mitigated by strong evidence of regularity or similarity. To the contrary, the government presented no evidence of regularity for an eight-year block of time between the putatively relevant conduct and the charged offense. And the government’s evidence with respect to similarity, while substantial, was not so powerful as to compensate for the weight [the must be accorded] the temporal proximity and regularity factors given their extraordinary status in this case.”

However, the Court nevertheless exercised its “discretion to consider an alternative basis to affirm, and conclude[d] that the prior transaction qualifies as relevant conduct because it and the offense of conviction were part of a ‘common scheme or plan.’ . . . The earlier conduct was substantially connected to the offense of conviction; both featured common co-conspirators who worked together to procure a distribution quantity of marijuana from a source in Southern California. Because of this substantial connection, the prior transaction qualifies as relevant conduct.” The Court rejected Petitioner’s “remaining contentions that that the district court should not have sentenced him as a leader or organizer of the charged conspiracy, and that his below-Guidelines sentence was substantively unreasonable.”

Tenth Circuit: Reasonable Basis Existed for Initial Traffic Stop and Subsequent Detention; Firearm and Drug Evidence Properly Admitted

The Tenth Circuit Court of Appeals published its opinion in United States v. McGehee on Wednesday, February 22, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was found guilty of possessing concaine with the intent to distribute, possessing a firearm in furtherance of a drug-trafficking crime, and being a felon in possession of a firearm. He appeals his conviction and sentence, arguing that: “(1) the district court erred in denying his motion to suppress on the grounds that his Fourth Amendment rights were violated during a traffic stop where police discovered narcotics and a firearm; (2) the evidence at trial was insufficient as a matter of law to establish that he possessed the firearm in furtherance of a drug-trafficking offense; and (3) the district court erred by denying him a two-level reduction for acceptance of responsibility under . . . the U.S. Sentencing Guidelines.”

The Court disagreed with all of Petitioner’s contentions. The Court agreed with the district court that there was a reasonable basis for the initial stop and the subsequent detention, and probable cause for Petitioner’s arrest; the motion to suppress evidence was properly denied. The Court also found that “considering the evidence in the light most favorable to the government, ‘any rational trier of fact could have found [Petitioner] guilty of the crime beyond a reasonable doubt.'” Lastly, the district court did not err in sentencing.

Tenth Circuit: District Court Did Not Abuse Discretion by Fashioning Remedial Legislative Plan Solely Consisting of Single-Member Districts

The Tenth Circuit Court of Appeals published its opinion in Large v. Fremont County on Wednesday, February 22, 2012.

The Tenth Circuit affirmed the district court’s decision. The Court decided “what level of deference—if any—must be afforded to a local governmental entity’s proffered plan to remedy an adjudged violation of Section 2 of the Voting Rights Act of 1965 . . . when that proposed remedy unnecessarily conflicts with state law.” The Court concluded that “when such plans in effectuating their remedial purposes do not adhere as closely as possible to the contours of the governing state law, they are not eligible for the deference customarily afforded legislative plans. Consequently, in this case, [the Court affirmed] the district court’s order that rejected the Fremont County Board of Commissioners’ proposed remedial plan, and [held], under settled Supreme Court precedent that strongly favors single-member districts in court-ordered plans, that the district court did not abuse its discretion in fashioning a remedial plan solely consisting of single-member districts.”

Tenth Circuit: Unpublished Opinions, 2/22/12

On Wednesday, February 22, 2012, the Tenth Circuit Court of Appeals issued six published opinions and five unpublished opinions.

Unpublished

United States v. Knittel

United States v. Price

Davis v. Corrs. Corp. of America

United States v. Jackson

United States v. Williams

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

Colorado Court of Appeals: Week of February 19, 2012 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and thirty-three unpublished opinions for the week of February 19, 2012.

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

Proposed Repeal and Re-Adoption of Colorado Civil Procedure Rule 45 and Subpoena Form

The Colorado Supreme Court requests written public comments on the proposed repeal and re-adoption of Colorado Rules of Civil Procedure Chapter 5, Rule 45 and the Subpoena Form to be used with that Rule.

Click here to read the full proposal for the rule and form.

Interested persons should submit one original and eight copies of the written comments to Christopher Ryan, Clerk of the Supreme Court, 101 W. Colfax Ave., 8th Floor, Denver, Colorado, by Friday, June 29, 2012.