April 18, 2019

Archives for June 13, 2012

Finalists Selected to Fill Judgeship on Sixth Judicial District Court

The Sixth Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the passage of HB 12-1073, effective July 1, 2012.

The nominees for the bench are Suzanne Carlson, James Casey, and Martha Minot, all of Durango. All candidates were selected by the commission on June 12.

Under the Colorado Constitution, Governor Hickenlooper has until June 28 to appoint one of the nominees as District Court Judge for the Sixth Judicial District, which serves Archuleta, La Plata, and San Juan counties.

Tenth Circuit: No Pretext for Termination; Must Show Termination Made Because of Race, Not that Decision Unreasonable

The Tenth Circuit Court of Appeals published its opinion in Jaramillo v. Adams County School Dist. 14 on Tuesday, June 12, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, a Hispanic female, was employed as principal of Hanson PreK-8 school. “More than 70% of the students attending Hanson are Hispanic, and [Petitioner] was the only Hispanic principal in the District. In the fall of 2008, the District administration contemplated policy changes, including implementing an English Language Learners policy (“ELL policy”), which stresses English immersion (rather than teaching subjects in Spanish as well as English), and operating Hanson on the same academic year as other schools in the District. These proposals were controversial in the Hispanic community and apparently with some of the teachers at Hanson. The ELL policy was the topic of a Board of Education public study session. The interim superintendent of the District received a copy of an e-mail about a planned teachers’ meeting before the public study session which contained false and inaccurate information. This misinformation suggested that the ELL policy was going to eradicate any Spanish instruction in the district. [The superintendent] met with [Petitioner] to ask for the name of the person who had misinformed her as to the specifics of the policy. [Petitioner] refused to give the name. They met again later in the afternoon . . . about [Petitioner’s] lack of support for the administration’s policy,” and Petitioner again refused to provide the requested name after being told that failure to disclose would result in disciplinary action.

Petitioner was placed on paid administrative leave and was recommended for termination shortly after. Petitioner “sought review, pursuant to the Administrator’s Meet and Confer Handbook, by a three-member panel, one of which was chosen by Petitioner. The panel unanimously agreed . . . to recommend that the Superintendent recommend termination to the Board. The Board accepted the Superintendent’s recommendation.” Petitioner filed suit, alleging race discrimination.

On appeal, Petitioner “argues that she satisfied her burden under the Supreme Court’s McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), framework, and that a reasonable jury could find that the District’s motives for termination were pretextual. The district court assumed, without deciding, that [Petitioner] made a prima facie case based on her positive performance for nearly nine years, her membership in a protected class, and her termination and replacement by a non- Hispanic person. The District also proffered a legitimate nondiscriminatory reason for the adverse action—insubordination. While considering pretext, the district court stated that ‘[t]he charge of insubordination for failure to give [the superintendent] the name of the informant . . . appears to be unfair and unreasonable, given [Petitioner’s] years of performance as the principal of Hanson. Continuing, the court explained, however, that ‘[a] violation of that statute [§ 1981] depends upon a showing that the termination was made because of the plaintiff’s race’ and not whether the decision was ‘reasonable.’ The court held that there was no evidence of racial bias or pretext in this case. The Tenth Circuit agreed, and was unconvinced by Petitioner’s proffered evidence of pretext.

Tenth Circuit: Business Is Deemed to Have Accepted the Terms of the Bill of Lading By Suing Under It

The Tenth Circuit Court of Appeals published its opinion in Flying Phoenix Corp. v. Creative Packaging Machinery, Inc. on Tuesday, June 12, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, a corporation in the business of importing and reselling fireworks, purchased a machine designed to package fireworks for sale to end users from Respondent. Petitioner previously purchased a different machine from Respondent, and that machine arrived in satisfactory condition. The second machine, however, arrived severely damaged. Respondent was responsible for shipping the second machine to Petitioner. A bill of lading issued for the shipment listed Respondent as shipper, R&L Carriers as carrier, and Petitioner as consignee. “Importantly, the bill of lading limited the period for filing claims with a carrier to nine months, and limited the time for filing civil suit to two years and one day following denial of a claim.”

Petitioner filed suit against Respondent almost four years after its initial claim submitted to Respondent was denied, and nearly two years after the limitations period for filing civil suit expired. The district court held that Petitioner’s claims were brought pursuant to the bill of lading and were time-barred by the limitations period contained therein. “On appeal, Petitioner argues that the district court erred by holding that (1) its claims were based on the bill of lading, and (2) it was bound by the terms of the bill of lading even though it was not a party and did not consent. [Petitioner] acknowledges that a bill of lading existed for the shipment, but urges that (1) it was not a party to that bill of lading (but instead was listed as consignee by someone else), and (2) it had no knowledge of the bill of lading until shortly before the present lawsuit was filed.”

The Court disagreed and found that “a carrier’s failure to issue a bill of lading only precludes the carrier from contracting for limitations periods in line with § 14706(e)(1). Thus, the Carmack Amendment does not create an independent cause of action for recovery where a receipt or bill of lading issued, and [Petitioner] does not dispute that a bill of lading was issued in this case.” Additionally, Petitioner “is deemed to have accepted the terms of the bill of lading by suing under it.” Lastly, “[t]here is no suggestion in the record that [Petitioner] ever sought a copy of the bill of lading but was denied access, and it is well-established that a party may not sit idly by, making no effort to obtain obviously necessary documents, and then claim ignorance.”

New Colorado Principles of Professionalism Approved to Guide Attorney Conduct

The hallmark of a civilized society is its ability to maintain a legal system that is fair, effective and efficient. As lawyers, we have a predominant role in assuring that the legal system fulfills these goals. Toward that end, starting in 2009, the CBA-DBA Professionalism Coordinating Council undertook a project to meld existing principles of professionalism into a single unified document to create a guide for statewide use. This product of that consolidation of principles is not intended to supersede local Bar association rules of professionalism.

The wisdom and practicality of these combined Principles of Professionalism lie in two key features. First, highly experienced attorneys from many different practice areas and numerous judicial officers who are members of the Professionalism Coordinating Council reviewed, discussed, and developed the combined practice principles as “real-world” attainable goals for professional behavior to which the profession should aspire to apply every day in practice. Second, the principles have no coercive enforcement mechanism except those that have existed in our profession since the days of the quill pen and powdered wig: the fundamental commitment of attorneys to conduct themselves and their practices professionally and with integrity. Adherence to these principles brings its own rewards through the admiration of one’s colleagues, and falling short of these high standards brings the opprobrium and condemnation of those same colleagues. The mark of a professional calling is that it aspires first and foremost to police itself.

For the achievement of integrity throughout the legal profession, each lawyer should aspire to adopt the following Principles of Professionalism and to perform in accordance with the Practical Considerations outlined in the document below, approved in May 2012 by the Board of Governors.

New CBA Principles of Professionalism