April 18, 2019

Archives for June 15, 2012

Local Case and Attorneys at the Supreme Court: Cheney’s Secret Service Agents Entitled to Qualified Immunity

It isn’t often that a case rooted in Colorado reaches the U.S. Supreme Court, but on June 4, 2012, the Supreme Court announced its decision in a case with deep Colorado connections, Reichle v. Howards. The facts of the case occurred in Beaver Creek, Colorado, and the respondent, Golden resident Steven Howards, was represented by Denver attorney David Lane of Kilmer Lane & Newman LLP, while the petitioner Secret Service agents were represented by Denver lawyer Sean Gallagher of Polsinelli Shughart, PC.

The case involved Howards, who confronted Vice President Cheney at a 2006 event at a mall in Beaver Creek. According to the Court’s opinion, Howards entered the line to meet Cheney, made critical remarks regarding the administration’s policies in Iraq, and touched Cheney on the shoulder before leaving (something Howards later denied to Secret Service agents). Howards was arrested by Secret Service agents Gus Reichle and Dan Doyle. He was charged with harassment, but the charges were later dropped. Howards then brought suit against the agents, claiming that he had been arrested without probable cause, a violation of the Fourth Amendment, and in retaliation for his comments to Vice President Cheney, a violation of the First Amendment.

The Court granted certiorari on the questions of (1) whether a First Amendment retaliatory arrest claim could be brought where the arrest was supported by probable cause and (2) whether there was clearly established law at the time of Howards’s arrest as to the first question. The Court only addressed the second question, and found that the law was not clearly established at the time of the arrest, entitling the agents to qualified immunity.

Lane summarized his thoughts on the ruling in a statement to the Associated Press, “‘They broke absolutely no legal ground while managing to duck every significant issue in the case.’” However, Gallagher saw the decision differently: “‘This ruling confirms that the federal courts will not subject law enforcement officials to personal liability except when it is absolutely clear that they have no basis to make the arrest.’” While it remains an open question whether a First Amendment retaliatory arrest claim can be brought where the arrest is supported by probable cause, this case was certainly fascinating for the facts and issues involved, as well as its connections to Colorado and two of Denver’s prominent attorneys.

Consumer Fraud Alert: Fraudulent Medicare Callers Are Robbing Bank Accounts

According to the Denver DA, there has been a rash of phone calls from solicitors claiming to be from the “Senior Medicare Card Office” who are manipulating Medicare beneficiaries into revealing their bank account numbers. Once they have obtained this information, the solicitor then goes on to steal money from the beneficiary’s bank account.

The caller initially explains that the beneficiary will be receiving updated Medicare cards within the “next three to five days,” but first, the beneficiary must verify personal information over the phone, such as name, address, and other information. As a lure to get the banking account number, the caller then reads the root number of the person’s bank (the first series of numbers on a check), then asks the beneficiary to complete the sequence by providing the numbers of their actual banking account. The caller’s tone is particularly authoritative, and if the beneficiary does not readily comply, an alleged “supervisor” is put on the line to exert additional pressure.

Remember that Medicare will never, ever call on the phone or knock at a door. New Medicare cards will only be issued when a beneficiary initiates the request for a lost or stolen card. And, aside from setting up a direct deposit account to receive a Medicare check, Medicare does not need personal bank account numbers. This is only true if the bank account in which the Medicare check is to be deposited has changed, but the change must be initiated by the beneficiary.

 Other tips:

  • Never give out personal or financial information, regardless of who calls.  If in doubt, call the number of a legitimate business using information obtained from a legitimate source – In this case: 1-800-MEDICARE (1-800-633-4223)
  • If you have caller ID, write down the number.
  • Be assertive and hang up the phone! It’s shrewd to be rude.
  • Contact the Senior Medicare Patrol investigators at 1-800-503-5190.  Be sure to document the event.

Denver DA’s Fraud Line: 720-913-9179

Running Past Our Limits (Part 1 of 6)

At my workshops, I sometimes I get asked to tell my story. I usually don’t. I think it implies that my story is somehow more valuable than anybody else’s. We’re all in this make-your-dreams-come-true thing together, and I want to keep it that way.

But this time I’m going to make an exception, because I’ve stumbled onto something so big and amazing there’s no way anybody could think it’s just about me. It’s huge, and if all of us could tap into this, we and our lives and our world would change – maybe as fast as overnight. Really, it’s that good. Here’s the story:

For reasons I won’t bore you with (okay, I’ve had a couple accidents, that’s all you get for now), I have trouble walking. Running is impossible. You name it, I’ve tried it: rehab, PT, lifting, stretching, massage, acupuncture, chiropractic, energy therapy . . . No luck so far. But I love to work out, and last September (2011) my daughter was home and wanted to lose some weight she’d put on during a year in France. (Bon appétit!) So she’d go to Bally Total Fitness with me and get on the elliptical machine, and I’d get on the one next to her. She’d go maybe an hour. I’d go maybe 10 minutes.

She lost the weight she wanted to lose, and I got an idea:  “I wonder if I could start running on this machine, the way I used to before I got hurt?” I also wondered if maybe somewhere along the way my body would decide to start working again like it did before.

Then I got a second, totally crazy, wild hare idea. “I wonder if I could do 12 miles in 60 minutes on this thing?” Never mind that I have trouble walking to the end of the block. I have no idea where the idea came from; it just did. But I do know that twelve 5-minute miles is fast.

So I started in, grinding out maybe a mile in 12 or 15 minutes. My ankles and feet don’t have much feeling in them, and when I walk my hips and legs sort of stop working, so that I have to drag myself along. I call it my Quasimodo walk. And so when I was done with my elliptical sessions I could barely get off the machine. I’d look around, trying to make sure nobody noticed as I staggered and wobbled over to a chair. I’d collect myself and then go staggering and wobbling home (I have a cane, but hate to use it), afraid some cop was going to come by and stop me for public drunkenness. (Seriously.)

I worked on pace and stamina throughout the fall, and discovered something really important: when my feet and ankles are numb and my legs stop working, I can still make the elliptical move. I don’t have to actually pick up my feet (which is a problem), all I have to do is glide. (Hint: That’s important. Remember that for later.)

[To be continued]

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently reopened his law practice, while continuing to write (screenplays and nonfiction) and lead workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. His latest workshop, Life in the Gap: Getting Over Your Inspiration Hangover and Translating Inspiration into Action, was held April 10, 2012. Watch for another program in the near future.

Julie Huffman Appointed as Associate County Court Judge in Montrose County

On Friday, June 15, 2012, Governor John Hickenlooper announced his appointment of Julie Huffman to serve as Associate County Court Judge in Montrose County. Huffman will fill the vacancy created by the retirement of the Honorable Diana Barber on April 30. Huffman’s appointment is effective immediately.

Huffman currently works in private practice and has experience in domestic relations, guardianship, and juvenile law. Huffman earlier worked as an uncompensated Deputy District Attorney for the SeventhJudicial District in 2008. She earned her bachelor’s degree from the University of Northern Colorado and her law degree from Salmon P. Chase Law School at Northern Kentucky University.

Governor Hickenlooper Finishes Signing Bills Approved This Year by General Assembly

Governor Hickenlooper’s desk got a little cleaner last week, as he signed the last of the bills approved by the General Assembly during this legislative session. In total, the governor signed 309 bills this year. He also vetoed one bill, allowed one bill to pass into law without his signature, and allowed Lieutenant Governor Joe Garcia to sign one bill.

And, don’t miss our Legislative Wrap-Up CLE Presentation on July 10 to learn how laws passed this legislative session will affect your practice! Details below.

On Wednesday, June 6, 2012, Governor Hickenlooper signed eight bills into law, including a bill designed to modernize the state’s personnel system. That bill and two others are summarized here.

  • HB 12-1321Concerning the State Personnel System, and, in Connection Therewith, Enacting the “Modernization of the State Personnel System Act.”
    Sponsored by Reps. Mark Ferrandino and Glenn Vaad and Sens. Mike Johnston and Keith King. The bill establishes a merit pay system to replace the old pay-for-performance system, makes changes regarding separation of state employees, and makes conditional changes to the appointment of state employees.
  • HB 12-1272Concerning Continuation of Enhanced Unemployment Insurance Benefits for Unemployed Individuals Participating in Approved Training Programs, and, in Connection Therewith, Making an Appropriation.
    Sponsored by Reps. Crisanta Duran and Robert Ramirez and Sen. Linda Newell. The bill extends enhanced unemployment insurance benefits for unemployed individuals involved in approved training programs until June 30, 2014.
  • HB 12-1041Concerning the Creation of an Electronic Death Registration System in the Department of Public Health and Environment and, in Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Jeanne Labuda and Sen. Lucia Guzman. The bill creates an electronic system for reporting of death information to counties and provides an alternative to the current paper-based system that requires families to travel to the decedent’s county of death in order to receive a death certificate.

The governor continued his bill signing efforts on Thursday, June 7, 2012, when he signed two bills, including a criminal proceedings omnibus bill and a bill clarifying CORA. These two bills are summarized below.

  • HB 12-1310Concerning Changes to Statutory Provisions Related to Criminal Proceedings, and, in Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Bob Gardner and Sen. Morgan Carroll. The bill incorporates several other bills regarding issues of criminal procedure, and affects several areas of criminal law, including sentencing, court proceedings, sex offenses, probation, and parole. It also criminalizes the use of cathinones (bath salts).
  • HB 12-1036Concerning Clarification of the Exemption from the “Colorado Open Records Act” for Investigative Files.
    Sponsored by Rep. Jim Kerr and Sen. Betty Boyd. The bill clarifies that the exemption from CORA applies to investigative files for all civil, criminal, and administrative proceedings in Colorado, and also clarifies the security and chain of custody for ballots throughout the election season.

On Friday, June 8, 2012, Governor Hickenlooper signed the last bills of this legislative session. He signed 14 bills on Friday, including two bills that help military families in Colorado, HB 12-1059 and HB 12-1350. Five of the bills Governor Hickenlooper signed Friday are summarized here.

  • HB 12-1273Concerning the Inclusion of Approved Facility Schools Affiliated with a Hospital to the Definition of Child Care Facility for Purposes of the Child Care Contribution Income Tax Credit.
    Sponsored by Rep. Dan Pabon and Sen. Pat Steadman. The bill adds schools that are operated by nonprofit hospital facilities for the benefit of their patients to the list of eligible recipients for the state child care contribution tax credit. Facilities would be eligible to receive donations in 2013 but individuals would not be able to claim the credit until 2014.
  • HB 12S-1002 Concerning Administration of the Unemployment Insurance Program in Order to Stabilize Unemployment Insurance Rates, and, in Connection Therewith, Facilitating the Issuance of Unemployment Revenue Bonds, Accelerating the Creation of the Division of Unemployment Insurance in the Department of Labor and Employment, and Making Technical Changes to Provisions Enacted as a Part of House Bill 11-1288 to Ensure Appropriate Transition to the New Unemployment Insurance Premium Rate Structure.
    Sponsored by Reps. Larry Liston and Dan Pabon and Sen. Cheri Jahn. The bill enables the newly created Division of Unemployment Insurance (UI) to issue revenue bonds on behalf of the UI program. It requires certification from several officials, including the Executive Director of the CDLE, the State Treasurer, and the Governor, regarding the issuance of the revenue bonds.
  • SB 12-036Concerning Parental Consent for the Collection of Information from Students in Schools.
    Sponsored by Sen. Shawn Mitchell and Rep. Chris Holbert. The bill requires parental consent when schools gather certain information from students, including social security numbers or information regarding religious affiliation.
  • SB 12-128 Concerning Achieving Efficiencies in the Medicaid Long-Term Care Program Through Greater Utilization of Alternative Care Facilities.
    Sponsored by Sen. Ellen Roberts and Rep. Ken Summers. The bill authorizes the Department of Health Care Policy and Financing to enhance reimbursements to alternative care facilities for patients transferred from nursing homes and also allows the DHCPF to create a program to identify Medicaid patients who are at risk of long-term nursing home placement and could otherwise utilize alternative care facilities.
  • HB 12-1110 Concerning the Regulation of Appraisal Management Companies, and, in Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Angela Williams and Sen. Morgan Carroll. The bill redefines the legal meaning of appraisal management companies (AMCs) and creates a licensure process in the Division of Real Estate, including establishing licensure guidelines.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

CLE Program: 2012 Legislative Update with Michael Valdez – Tales from Under the Golden Dome

This CLE presentation will take place on Tuesday, July 10. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Tenth Circuit: Question of State Procedural Law Certified to the State Court of Criminal Appeals

The Tenth Circuit Court of Appeals published its opinion in Black v. Workman on Thursday, June 14, 2012.

The Tenth Circuit affirmed in part and abated the appeal pending certification. Petitioner was convicted of first-degree murder and battery with a dangerous weapon because of his role in an assault that left one person dead and another suffering from thirteen stab wounds. On the recommendation of the jury, Petitioner received a death sentence on the first-degree murder conviction. After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA) and pursuing two postconviction proceedings in state court, Petitioner unsuccessfully applied for relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. He appeals the district court’s decision, raising fourteen claims ranging from ineffective assistance of counsel, voir dire errors, and improper exclusion of evidence.

The Court affirmed the district court on most of the claims, “generally because the OCCA did not unreasonably apply federal law in rejecting these claims. On the remaining claims the district court denied relief on the ground of procedural bar. Before [the Tenth Circuit can] determine whether [they] agree with the district court, [they] need to resolve a question of Oklahoma procedural law—whether Oklahoma’s bar of [Petitioner]’s second postconviction application was independent of federal law or instead required the OCCA to examine the merits of [Petitioner]’s federal constitutional claims.” The Court therefore certified a question of state law to the OCCA and abated this appeal pending consideration by the OCCA of the certification request.

Tenth Circuit: Unpublished Opinions, 6/14/12

On Thursday, June 14, 2012, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Levin v. Romero

Phillips v. Oklahoma Corp. Comm.

United States v. Cardenas-Uriarte

United States v. Suniga

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