June 26, 2019

Archives for March 5, 2012

Tenth Circuit: Statute of Limitations for Government Easement Tolled Well in Advance of Plaintiff’s Lawsuit

The Tenth Circuit Court of Appeals published its opinion in George v. United States on Monday, March 5, 2012.

Plaintiff Ann George wanted to build a fence across her property, but the fence blocked a federal easement road accessing the Gila National Forest. The government objected to the fence based on federal regulations. In 2009, Ms. George filed a quiet title action to build the fence. The District Court ruled in favor of the government, holding that the statute of limitations had run on plaintiff’s claim. Plaintiff appealed.

A quiet title action has a statute of limitations of 12 years, and begins to run when “the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” 28 U.S.C. § 2409a(g). The Secretary of Agriculture published regulations in the Federal Register in 1977 prohibiting anyone from “placing . . . [a] fence . . . without a permit” anywhere in the “National Forest System” or on its “[f]orest development road[s] or trail[s].” 36 C.F.R. §§ 261.10(a); 261.1(a) (1977). Publishing a regulation in the Federal Register must be considered “sufficient to give notice of [its] contents” to “a person subject to or affected by it.” 44 U.S.C. § 1507.

The undisputed facts established that Mr. Hamilton, plaintiff’s predecessor in interest, reached an agreement with the federal government in 1979, in part establishing the easement road across which plaintiff wished to build a fence. Therefore, the statute of limitations began to run in 1979, when Mr. Hamilton “knew or should have known” about the regulations that had been published in 1977 prohibiting the construction of a fence on a forest road. Therefore, in 2009, plaintiff brought her claim 18 years too late.

The case was not decided on the merits. The court’s ruling had only to do with the statute of limitations. The judgment was affirmed.

Tenth Circuit: Damages for Retaliatory Discharge After Workers’ Compensation Claims Reduced; All Other Aspects of Judgment Against Employer Upheld

The Tenth Circuit Court of Appeals issued its decision in Jones v. United Parcel Service, Inc., on March 5, 2012.

Plaintiff Keith Jones (Jones), a United Parcel Service (UPS) package car driver, suffered work-related injuries, filed workers’ compensation claims, and received benefits. Jones’s physician and the UPS physician disagreed about whether Jones was able to return to work without restrictions. Under their collective bargaining agreement, if the UPS doctor and the employee’s doctor disagreed, the parties had to select a third doctor “whose decision [would] be final and binding.” The third doctor, whose review was limited by UPS, concluded Jones could not perform the essential functions of his job. UPS therefore terminated Jones.

Jones filed a state law retaliatory discharge claim and UPS removed the case to federal court. A jury awarded Jones over $2.5 million in actual and punitive damages. UPS appealed. On appeal, UPS alleged that:

(1)    It was entitled to judgment as a matter of law on Jones’s retaliation claim. Upon de novo review, the Court found the evidence presented supported a reasonable inference in support of Jones’s retaliation claim. Affirmed.

(2)    The district court erred in giving two improper jury instructions. The Court concluded that, although not a model of clarity, the jury instructions were not improper. Affirmed.

(3)    It was entitled to judgment as a matter of law on Jones’s claim for punitive damages. Based on the evidence presented, UPS is not entitled to judgment as a matter of law on Jones’s claim for punitive damages because enough evidence was presented to establish ratification of UPS’s conduct “by a person expressly empowered to do so on behalf of the . . . employer.” Kan. Stat. Ann. § 60-3702(d)(1). Affirmed.

(4)    The district court erred in allowing the jury to decide the amount of punitive damages. The Court concluded that the district court did not err in instructing the jury to determine the amount of punitive damages, relying on Federal Rule of Civil Procedure 38 rather than Kansas law. A federal district court sitting in diversity applies federal procedural law and state substantive law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 428 n.7 (1996). Affirmed.

(5)    The jury’s award of $2 million in punitive damages violated its federal due process rights. “[T]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Hardman v. City of Albuquerque, 377 F.3d 1106, 1121 (10th Cir. 2004). Whether an award is grossly excessive or arbitrary is based on “(1) the degree of reprehensibility of the defendant’s action; (2) the disparity between the actual harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damage award and the civil penalties authorized or imposed in comparable cases.” Id. The Court concluded that the jury’s $2 million punitive damage award was excessive and violated UPS’s federal due process rights. Reversed and remanded on this limited issue for the district court to enter a punitive damage award equal to the compensatory damage award.

Colorado Court of Appeals: Affirmative Defense of Constitutional Right to Bear Arms Should Have Been Relayed in Jury Instruction

The Colorado Court of Appeals issued its opinion in People v. Carbajal on March 1, 2012.

Possession of a Weapon by a Previous Offender—Right to Bear Arms—Jury Instruction—Threat of Imminent Harm—Affirmative Defense.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of possession of a weapon by a previous offender (POWPO). The judgment of conviction was reversed and the case was remanded for a new trial.

Defendant argued that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead used a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. In 1876, Colorado adopted a Constitution that included a provision in its Bill of Rights establishing a right to keep and bear arms in defense of one’s home, person, and property. During the 20th century, the Colorado General Assembly enacted a statute making it unlawful for a previous offender to possess weapons.

The Colorado Supreme Court held that a defendant may raise an affirmative defense to a POWPO charge under Colo. Const. art. II, § 13, by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property, which language was included in the stock jury instruction proposed by defendant. Because the modified jury instruction allowed the prosecution to defeat the affirmative defense by showing that defendant did not reasonably believe in a “threat of imminent harm,” the burden of proof regarding defendant’s purpose in possessing weapons was impermissibly lowered. Because the trial court erred in modifying the stock instruction to include a “threat of imminent harm” requirement, and the modified affirmative defense instruction impacted defendant’s substantial rights, the error was not harmless.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.

Colorado Court of Appeals: Father’s Right to Counsel Violated

The Colorado Court of Appeals issued its opinion in People in the Interest of R.D., and Concerning K.L. on March 1, 2012.

Dependency and Neglect—Termination—Parental Rights—Due Process—Right to Counsel—Clear and Convincing Evidence.

In this dependency and neglect case, father appealed from the judgment terminating the parent–child relationship between him and his children, R.D. and R.D. Mother also appealed from the judgment terminating the parent–child relationship between her and her children, R.D., R.D., C.L., and D.L. The judgment was vacated and the case was remanded as to father. The judgment was affirmed as to mother.

Father contended that the trial court violated his statutory and due process rights to counsel when it prohibited his attorney from participating on his behalf and entered default against him on the first day of the termination hearing and sua sponte allowed his counsel to withdraw on the second day of the hearing. In all dependency and neglect proceedings, a parent possesses the legal right to be represented by counsel at every stage of the proceedings. Here, after commencing the termination hearing, in the absence of father but with his counsel present and participating, the trial court found father in default and granted the motion to terminate his parental rights. It also indicated on the first day of the hearing that it was dismissing his counsel, over her objection. The court proceeded with day one of the termination hearing without father or his counsel present. On the second day of the hearing, the court allowed father to participate, but without the assistance of counsel. No statutory exception exists here to permit such a deprivation of this right. Accordingly, the trial court violated CRS §§ 19-3-202(1) and -602(2) when it deprived father of his right to the assistance of counsel during substantial parts of the termination hearing.This constituted reversible error per se.

Mother contended that the judgment terminating her parental rights was not supported by clear and convincing evidence. The overwhelming evidence, however, supports the trial court’s findings that mother continued to demonstrate the same behaviors identified in the treatment plan, including a “strange absence of emotional attachment.” Further, despite mother’s claims of progress, the evidence showed that her issues were chronic. Both mother’s therapist and the caseworker testified that she would not be able to safely parent within a reasonable time. Accordingly, the termination of mother’s parental rights was supported by clear and convincing evidence.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.

Colorado Court of Appeals: Defendant’s Right to Conflict-Free Counsel Violated When Sentencing Discussions Revealed

The Colorado Court of Appeals issued its opinion in People v. Delgadillo on March 1, 2012.

Sixth Amendment—Conflict of Interest—Attorney-Client Privilege.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree sexual assault and two counts of contributing to the delinquency of a minor. The judgment was reversed, the sentence was vacated, and the case was remanded for further proceedings.

Defendant took the stand at trial to testify in his own defense. Defendant testified that his counsel advised him that he would receive a sentence of twenty-five to thirty years, if found guilty. Outside the presence of the jury, defendant’s counsel testified in camera regarding his communications with defendant regarding the potential sentence, and defendant indicated that he would have taken the plea bargain instead of proceeding to trial if he had been told that the actual range was four to sixteen years if the sentences were to run concurrently. The case proceeded, and defendant was found guilty.

Defendant contended his Sixth Amendment right to conflict-free counsel was violated when the court swore in his trial counsel and permitted counsel to testify about communications he had with defendant about the ongoing representation. No one asked defendant whether he would waive the attorney–client privilege to allow his counsel to testify, or explained what the consequences might be if defense counsel testified inconsistently with defendant’s trial testimony. The record reflects defense counsel’s inherent conflict in simultaneously trying to respond to questioning from the court and the prosecutor, to justify his earlier advice to defendant, and to remain a zealous advocate on behalf of his client. In the circumstances presented here, including defense counsel’s disclosures of attorney–client privileged information, defense strategy, and the specter of an ineffective assistance claim, there was an actual conflict of interest that deprived defendant of conflict-free representation. Accordingly, the judgment was reversed, the sentence was vacated, and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.

Colorado Court of Appeals: Supplementation of Record on Appeal

The Colorado Court of Appeals issued its opinion in People v. Ray on March 1, 2012.

Record—Reconstruction—Incomplete—C.A.R. 10.

Five years ago, Robert Keith Raywas sentenced to prison for attempted murder, first-degree assault, and accessory to murder. He promptly appealed, but he has yet to file his opening brief. He obtained eight extensions to file the record. He filed five motions to supplement or complete the record, all of which were granted, and filed a motion for limited remand to settle and supplement the record, which also was granted. The court discharged its duties: it defined the scope of the remand order, received evidence and argument about the items that Ray proposed to include in the record, and issued written findings and conclusions. Ray then filed this motion, seeking clarification and further direction in the remand proceedings in this appeal. After reviewing Ray’s motion, the People’s response, and the trial court’s findings, the Court of Appeals ordered the parties to appear for oral argument.

Ray contended that the appellate record was incomplete or inaccurate. He was entitled to supplement the partial transcript regarding events that occurred during jury selection and any comments the court made to the jurors cautioning them about communicating with court staff, because these transcripts are material to the appeal. Additionally, the parties agreed that the partial transcript does not reflect all the events that occurred on October 13. They stipulated that Ray has submitted an accurate account of the proceedings on that day. Therefore, the trial court was directed to settle and approve Ray’s statement under C.A.R. 10(c). Ray’s request to supplement the record with any reconstructed bench conferences was denied, because he failed to request a recording of those conferences. The reference to an opinion attached to one of Ray’s motions was never attached to the motion; thus, the opinion is outside the scope of appeal. Additionally, although Ray was permitted to take photographs of certain courtroom security measures and the courtroom, these photographs were never submitted to the trial court and thus are outside the scope of appeal. Ray’s request for other evidence not before the trial court also was properly denied. The limited remand was discharged and the appeal was recertified. The parties were instructed that any further stay of the briefing schedule must be requested by an appropriate motion under C.A.R. 27.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.

Tenth Circuit: Unpublished Opinions, 3/5/12

On Monday, March 5, 2012, the Tenth Circuit Court of Appeals issued two published and two unpublished opinions.


United States v. Andrade-Vargas

United States v. Medina-Talamantes

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

SB 12-104: Consolidation of Funding for Adult and Juvenile Substance Abuse Treatment

On January 31, 2012, Sen. Pat Steadman and Rep. Brian DelGrosso introduced SB 12-104 – Concerning Consolidation of Drug Treatment Funding Into the Correctional Treatment Fund. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, there are three major state funding sources for substance abuse treatment. The bill consolidates the three sources into the correctional treatment cash fund. The bill creates the correctional treatment board that will prepare an annual treatment plan that the Judicial Department shall include in its annual presentation to the Joint Budget Committee. The board shall review information regarding drug treatment programs in the state provided by the department of human services and suggestions from judicial district drug treatment boards before preparing the annual treatment plan.

Currently, the drug treatment board for each judicial district recommends allocations of moneys for local drug treatment needs from one of the existing treatment funds. Each judicial district drug treatment board will be expanded to include a community corrections board chair, a local parole officer, a person with expertise in juvenile matters, and a county sheriff. The judicial district drug treatment boards will make suggestions to the board regarding assessed local drug treatment needs. On February 16, the Finance committee approved the bill and sent it to the Appropriations Committee for action; the bill is not listed on the printed calendar.