August 18, 2019

Archives for March 6, 2012

Week 8 e-Legislative Report: March 6, 2012

This week’s e-legislative update, prepared and delivered by Michael Valdez, CBA’s Director of Legislative Affairs, discussed three interesting bills: a bill that proposes to necessitate coins to be allowed as payment for any business; a bill repealing antiquated rules about libel; and a bill encouraging judicial oversight of guardians and conservators.

From the Legislative Policy Committee

The LPC met on Friday, March 2 and considered a relatively light docket of bills:

SB 137 – Gold and Silver Coin Payment of Debts. The LPC followed the recommendation of the Civil Rights Committee and voted to oppose SB 137 – Gold and Silver Coin Payment of Debts. The bill states that gold and silver coin issued by the US government or authorized by law is currency that is legal tender for the payment of all debts between the citizens of the state. Under the bill, a person cannot compel any other person to tender or accept gold or silver coin issued by the US government or authorized by law. The Civil Rights Committee asserted that the bill invades the constitutional powers of Congress and thus exceeds the express limitations on state powers. The bill died on the floor of the Senate on 2nd Reading later in the morning of March 2 – coincidence – you judge for yourself.

SB102 – Repeal the Crime of Libel. The LPC delayed action on a request from the Civil Rights Committee to support SB102 – Repeal the Crime of Libel. The LPC has asked the Civil Rights Committee and staff to research and report additional information to the LPC.

At the Capitol – Week Seven

HB 1074 – Judicial Oversight Of Guardians & Conservators. On Wednesday, the Senate Judiciary Committee approved, on a unanimous vote, HB 1074 – Judicial Oversight Of Guardians & Conservators. The Judiciary Committee loved the bill so much that they moved the bill to the consent calendar for 2nd Reading. (The “Consent Calendar” is the equivalent of a legislative Slam Dunk. Bills are called up in a group and passed without debate unless someone raises and objection.)

HB 1262 – Amend UCC Article 9 (Secured Transactions). On Friday, March 2, the House approved HB 1262 – Amend UCC Article 9 (Secured Transactions). The bill passed easily and without objection or amendment.

University of Colorado Law School Alumni Awards Banquet on Wednesday, March 14, 2012

The University of Colorado Law School will hold its 31st Annual Law Alumni Awards Banquet on Wednesday, March 14 at the Hyatt Regency in downtown Denver. Former dean David H. Getches will be honored, and proceeds of the event will support a scholarship fund in his name. Four outstanding alumni have been chosen to receive awards.

Bill Johnson, class of 1958, will receive the William Lee Knous Award, the highest honor that the law school can bestow upon an alumnus. Mr. Johnson is a partner at Rothgerber Johnson & Lyons, LLP, where he has worked since 1958, and he provides representation and advice to banking clients and financial institutions on many aspects of banking and litigation. He pioneered the “one bank holding company” concept, which is used by banks throughout the country. He has represented approximately 1,000 banks and bank holding companies in 47 states. Throughout his distinguished career, Mr. Johnson has been recognized by many legal organizations, and he received CU’s Norlin Recognition Award in 1992 for his work for the betterment of society.

Joe Blake, class of 1961, will receive the Distinguished Achievement in the Public Sector Award. Mr. Blake has been the Chancellor of the Colorado State University System since 2009, where he oversees its three distinct institutions. Prior to his work as Chancellor, Mr. Blake was the President and CEO of the Denver Metro Chamber of Commerce for nearly 10 years, and before that he was part of the senior management team that created the community of Highlands Ranch. He is very active in his community, and his past and present service includes being president of the Hospice of St. John, being named Trustee Emeritus of the Denver Zoological Foundation, and serving on the boards of directors for several organizations. He has received many awards for his community service.

Jane B. Korn, class of 1983, will receive the Distinguished Achievement in Education Award. She is currently the Dean of Gonzaga University School of Law, where she has been since 2011. Prior to her work at Gonzaga, she was at the University of Arizona, James E. Rogers College of Law since 1986, where she was named Acting Associate Dean in 2005 and Vice Dean in 2009. She is a prolific writer in the areas of employment discrimination, health law, and disability law, and has addressed mental illness, discrimination against cancer survivors, discrimination against obese people, and sex discrimination in workers’ compensation cases in her writings. She has received numerous teaching awards throughout her career.

Joseph Neguse, class of 2009, will receive the Distinguished Recent Alumnus Award. Mr. Neguse is a member of Holland & Hart’s Litigation Department in their Denver office. Although he is a recent graduate, he has had a prolific career. He was elected as Regent for the University of Colorado in 2008 while still a student, which made him one of the youngest public officials in the state. Mr. Neguse has written many articles and has had several speaking engagements as well. He has been interviewed by MSNBC, the Wall Street Journal Editorial Report, the Boston Globe, ESPN, and several other media outlets.

For sponsorship information or to purchase tickets online, click here or contact Cheryl Franchi at (303) 492-8048. Registration has been extended to March 7, 2012.

Colorado Supreme Court: Concealed Weapons with Permit Permitted on College Campus

The Colorado Supreme Court issued its opinion in Regents of the University of Colorado v. Students for Concealed Carry on Campus, LLC on March 5, 2012.

Regulating Concealed Handgun Possession on Campus—Concealed Carry Act—Right to Bear Arms.

The Students for Concealed Carry on Campus, LLC, along with Martha Altman, Eric Mote, and John Davis, (collectively, Students) filed a complaint against the University of Colorado’s Board of Regents (Board) and others, alleging that the Board’s Weapons Control Policy (Policy) violated the Colorado Concealed Carry Act (CCA) and the Colorado Constitution’s right to bear arms. The Board filed a motion to dismiss under C.R.C.P. 12(b)(5), which the district court granted. The Students appealed, and the court of appeals reversed.

The Supreme Court held that the CCA’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of its authority to regulate concealed handgun possession on campus. Accordingly, the Court agreed with the court of appeals that, by alleging the Policy violates the CCA, the Students have stated a claim for relief. Because the Court affirmed on statutory grounds, it did not consider the Students’ constitutional claim.

Summary and full case available here.

Colorado Supreme Court: Decision of Court of Appeals Affirmed by Operation of Law

The Colorado Supreme Court issued its opinion in Scoggins v. People on March 5, 2012.

C.A.R. 35(e).

The Court was equally divided about the court of appeals’ ruling in People v. Scoggins, 240 P.3d 331, 334 (Colo.App. 2009). Justice Hobbs, Justice Rice, and Justice Eid would affirm the court of appeals’ judgment; Chief Justice Bender, Justice Coats, and Justice Boatright would reverse. By operation of law [C.A.R. 35(e)], the decision of the court of appeals was affirmed, without opinion.

Summary and full case available here.

Colorado Supreme Court: Wiretap Statute Requires Proof of Authorization of Wiretap by Certain Publicly Accountable Elected Officials

The Colorado Supreme Court issued its opinion in O’Hara, III v. People on March 5, 2012.

Wiretapping—CRS § 16-15-102(1)(a).

The Supreme Court held that CRS § 16-15-102(1)(a) requires the attorney general or an elected district attorney to personally authorize an application to initiate or extend a wiretap, but does not require the elected official to personally prepare or submit the application. The Court concluded that a remand for further findings and conclusions by the trial court is appropriate in this case, given that neither the parties nor the trial court had the benefit of the Court’s interpretation of the authorization requirements of CRS § 16-15-102(1)(a). The Court therefore affirmed the court of appeals’ decision to remand this case, albeit on different grounds, and remanded to the court of appeals with directions to remand to the trial court for further proceedings consistent with this opinion.

Summary and full case available here.

Tenth Circuit: Knowing Element of Possession of Child Pornography Established Through Defendant’s Actions; Probable Cause Existed for Warrant

On Tuesday, March 6, 2012, the Tenth Circuit Court of Appeals issued its opinion in United States v. Hammond.

Defendant was convicted of possession or attempted possession of child pornography as a result of an undercover online investigation. He appealed three aspects of his conviction.

First, defendant argued the evidence was insufficient to support his conviction. Specifically, he argued the government failed to establish that he “knowingly possessed” child pornography as required by 18 U.S.C. § 2252(a)(4)(B), alleging he inadvertently downloaded the specifically charged files to his computer. To “knowingly possess” child pornography, the government was required to prove defendant knew of and also controlled (or had the ability to control) the images that formed the basis of the conviction.

The Court found there was ample evidence for a jury to infer Mr. Haymond knowingly possessed the charged images on his computer because he searched for and downloaded child pornography from LimeWire, a file-sharing program. Defendant also admitted in an interview that was addicted to child pornography and used LimeWire to search for and download such images. Viewing the evidence in the most favorable light, the Court determined a reasonable jury could find the defendant guilty beyond a reasonable doubt of having knowingly possessed the charged images. United States v. Ramos-Arenas, 596 F.3d 783 (10th Cir. 2010).

Defendant also contended the evidence was insufficient to establish he knew the charged images depicted minors engaged in sexually explicit conduct. While defendant was correct that the “knowledge” requirement of the statute requires more than establishing he knowingly possessed them, the jury was presented with sufficient evidence from which to conclude that Mr. Haymond used search terms associated with child pornography to download the charged images. That defendant used such search terms established beyond a reasonable doubt that he knew those images contained child pornography.

In arguing the evidence was insufficient to support his conviction, defendant also argued the images had insufficient connection with interstate commerce as required by the statute. To convict a defendant of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), “the Government was required to prove the visual depictions had been mailed, shipped or transported in interstate or foreign commerce.” United States v. Sturm, 09-1386, ___ F.3d ___ (10th Cir. Feb. 24, 2012) (en banc). The government “can meet its burden of proving the jurisdictional [interstate commerce] element . . . by introducing evidence from which a reasonable jury could conclude the substance of an image of child pornography was made in a state and/or country other than the one in which the defendant resides.” Id. at 24. Government witness Agent Jackson testified that he discovered the photographs originated in Florida. The 10th Circuit Court concluded the government met its burden.

Second, defendant argued the district court erred in denying his motion to suppress evidence obtained as a result of a search of his home. The Court concluded that, under the totality of the circumstances presented in the affidavit, probable cause existed to issue the warrant based on the affidavit of the investigator who conducted the online investigation.

Lastly, defendant argued Dr. Passmore should not have been permitted to testify as an expert under Daubert. During trial, Dr. Passmore, a board-certified pediatrician, testified about the ages of the children depicted in the charged images. Because the government provided sufficiently strong evidence to convict defendant without the testimony of Dr. Passmore, the Court did not decide this issue.

Affirmed on all three points.


Tenth Circuit: Arbitrator’s Decision is Due Utmost Judicial Deference and Must Be Upheld Unless Without Any Textual Basis

On March 6, 2012, the Tenth Circuit Court of Appeals issued its opinion in San Juan Coal Company v. International Union of Operating Engineers.

San Juan Oil Company (San Juan) operates a coal mine. Workers are unionized, and the terms of their employment are set forth in a collective bargaining agreement (CBA). The CBA includes a “holdover pay” provision. In an effort to reduce costs, San Juan entered into negotiations with the union to establish new worker schedules, which resulted in a Memorandum of Agreement (MOA). A month later, the Union filed a grievance, arguing workers were wrongfully denied holdover pay under the CBA.

San Juan and the union entered into a binding arbitration to determine whether certain union members were entitled to holdover pay. The arbitrator concluded the union members were entitled to extra pay. The district court vacated the arbitrator’s award.

Judicial review of an arbitral award “is among the narrowest known to law.” Champion Boxed Beef Co. v. Local No. 7 United Food & Commercial Workers Int’l Union, 24 F.3d 86, 87 (10th Cir. 1994) (quotation omitted), and is entitled to the utmost judicial deference, even if a trial court might offer a more cogent reading of the argument. In reviewing the CBA and the MOA, the 10th Circuit reversed, upholding the arbitrator’s determination, because the arbitrator’s decision had some foundation in the text of the CBA and MOA.

Reversed and remanded with instructions to enter an order of enforcement.

Tenth Circuit: Breach of Contract At Issue; Limitation of Liability Provision Held Invalid Due to Unequal Bargaining Positions

On March 6, 2012, the Tenth Circuit Court of Appeals issued its opinion in Arnold Oil Properties LLC v. Schlumberger Technology Corporation.

Plaintiff Arnold Oil Properties (Arnold) hired Defendant Schlumberger Technology Corp. (Schlumberger) to perform a cement job on its gas well. The contract contained an indemnity provision and a limitation-of-liability provision. After Schlumberger poured too much cement into the well, Arnold incurred additional expenses and sued Schlumberger.

Schlumberger moved for summary judgment, arguing the contract precluded its liability based on what it claimed to be an exculpatory provision that barred Arnold’s recovery. Alternatively, Schlumberger argued the contract limited its liability to the cost of work performed. The district court ruled the alleged exculpatory provision was in fact an indemnification provision and therefore did not bar Arnold’s recovery. The district court also held that fact issues remained as to the parties bargaining positions, and therefore denied Schlumberger’s motion to enforce the limitation-of-liability provision.

A jury returned a verdict finding that Schlumberger breached its contract with Arnold. The jury also determined that the parties were in unequal bargaining positions. Pursuant to Rule 50(b), Schlumberger renewed its motion for judgment as a matter of law seeking to enforce the contract’s limitation-of-liability provision. The district court denied the motion. Schlumberger appealed the denial of this motion and the district court’s denial of Schlumberger’s motion for summary judgment.

Schlumberger argued that the district court misconstrued the indemnity provision of the contract. The 10thCircuit’s analysis of Oklahoma law led the Court to the conclusion that they need not decide this issue. Under Oklahoma law, courts may enforce contractual provisions limiting a party’s liability for ordinary negligence if the parties have equal bargaining power. Elsken v. Network Multi-Family Sec. Corp., 838 P.2d 1007, 1009-11 (Okla. 1992). The jury found that Arnold and Schlumberger did not have equal bargaining power. Accordingly, even if the Court were to hold the contract did exculpate Schlumberger from liability, because the jury found the parties to be in unequal bargaining positions, the exculpatory provision would be unenforceable under Oklahoma law.

Schlumberger also argued the district court erred in denying its Rule 50 motion for judgment as a matter of law to enforce the limitation-of-liability provision limiting recovery to the cost of work performed. In reviewing the denial of a Rule 50 motion, the Court needs to determine whether the jury’s verdict is supported by “substantial evidence when the record is viewed most favorable to the prevailing party.” Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1128 (10th Cir. 2002). The Court held that the evidence offered at trial was sufficient for the jury to conclude the parties were in unequal bargaining positions. Therefore, the district court was correct in denying Schlumberger’s Rule 50 motion for judgment as a matter of law to enforce the limitation-of-liability contract provision.


Tenth Circuit: Unpublished Opinions, 3/6/12

On Tuesday, March 6, 2012, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.


United States v. Cummings

Fisher Sand & Gravel Co. v. Giron

United States v. Heard

Commonwealth Property Advocates v. U.S. Bank National Association

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