July 18, 2019

Archives for December 21, 2012

Out of State Attorneys and Ethics – Your Questions Answered

In this age of technology, the importance of physical proximity is diminishing. With an electronic device and a wi-fi connection, a law practice can be operated practically anywhere. An attorney from, say, New York could theoretically remotely operate a New York practice out of Colorado. The question, though, is whether this is ethical.

Another scenario is for an out-of-state attorney to work on Colorado cases pro hac vice. Would the out-of-state attorney need co-counsel in Colorado? What if some ethical violation were committed—where would the grievance be filed? Would the co-counsel face discipline as well?

Finally, is it ethical for an out-of-state attorney to live and practice in Colorado if he or she only does federal work? What happens if that attorney violates ethics rules—is there any recourse?

We asked these questions of Amy DeVan from the Colorado Office of Attorney Regulation Counsel. She, along with colleague James Coyle, will present on these issues at a lunch program on Thursday, December 27, 2012 at noon at the CLE offices. It is a perfect opportunity to get your questions answered while fulfilling ethics requirements.

CLE Program: Blurring the Lines: Cross-Border Practice of Law

This CLE presentation will take place on Tuesday, December 27, 2012, at 12:00 p.m. (noon). Click here to register for the live program, or click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

Hon. Laura Findorff Appointed to County Court Bench in Fourth Judicial District

On Thursday, December 20, 2012, Governor Hickenlooper announced the appointment of Hon. Laura Findorff to the El Paso County Court bench in the Fourth Judicial District. Judge Findorff will fill a vacancy created by the appointment of Hon. Marla Prudek to the district court bench in the Fourth Judicial District.

Hon. Laura Findorff currently works as a magistrate judge in the Eighteenth Judicial District. She moved to Colorado in 2000, and since then she has worked as an adjunct professor at Pikes Peak Community College, a law clerk at Gentry & Hastings, a senior editor at LexisNexis, of counsel to Haskins & Cyboron, and a legal research attorney in the Eighteenth Judicial District. Prior to moving to Colorado, she was in private practice in California.

Judge Findorff’s appointment is effective November 8, 2012.

Tenth Circuit: Child Died While in Foster Care–Denial of County Employees’ Motion to Dismiss Based on Qualified Immunity Affirmed

The Tenth Circuit published its opinion in Schwartz v. Booker on Wednesday, December 19, 2012.

After their son, Chandler Grafner, died while in the foster care of Jon Phillips and Sarah Berry, Chandler’s biological parents and Melissa R. Schwartz, personal representative and administrator of Chandler’s estate, filed suit against two human services departments and two Denver County Department of Human Services employees alleging, among other claims, a 42 U.S.C. § 1983 claim for violation of Chandler’s substantive due process rights. The two employees, Defendants-Appellants Margaret Booker and Mary Peagler, filed this interlocutory appeal from the district court’s order denying their Rule 12(b)(6) motion to dismiss on the basis of qualified immunity.

Qualified immunity protects governmental officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This doctrine balances the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. To survive a motion to dismiss based on qualified immunity, the plaintiffs must allege sufficient facts that show—when taken as true—the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”  U.S. Const. amend. XIV. Section 1983 provides a private cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution.”  42 U.S.C. § 1983. Generally, state actors are only liable for their own acts, not for acts of private violence. One exception to this principle is the special relationship doctrine, which applies when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual.

The Tenth Circuit has explicitly recognized that foster children have a substantive due process right to protection while in foster care. The special relationship triggers a continuing duty which is subsequently violated if a state official knew of the asserted danger to a foster child or failed to exercise professional judgment with respect thereto, and if an affirmative link to the injuries the child suffered can be shown.

Denver County Department of Human Services effectively exercised custody over Chandler. Defendants were aware of Chandler’s circumstances and were the custodial officials responsible for overseeing Chandler’s foster care case. Consequently, the Tenth Circuit was persuaded that plaintiffs sufficiently pled a custodial relationship between the State and Chandler to potentially hold Booker and Peagler individually liable under the special relationship doctrine. The district court correctly determined that plaintiffs sufficiently pled facts, when taken as true, show Booker and Peagler plausibly violated Chandler’s substantive due process right to be reasonably safe while in foster care, which right was clearly established at the time.

Accordingly, the judgment of the district court was AFFIRMED.


Tenth Circuit: In Death of a Child, Summary Judgment in Favor of Social Worker on Qualified Immunity Grounds Inappropriate

The Tenth Circuit published its opinion in The Estate of B.I.C. v. Gillen on Wednesday, December 19, 2012.

This case stems from the death of a minor child, 23-month-old Brooklyn Coons (“B.I.C.”) at the hands of her father’s girlfriend. Plaintiffs-Appellants, Larry and Mary Crosetto and the Estate of B.I.C., filed an action alleging that a social worker, Defendant-Appellee, Linda Gillen, created the danger that resulted in the death of their granddaughter and denied them their rights to familial association. The district court granted summary judgment in favor of Ms. Gillen on qualified immunity grounds. Plaintiffs appeal.

On appeal, Plaintiffs argue that qualified immunity was unwarranted on their state danger-creation and familial association claims.

Qualified Immunity

Qualified immunity protects government employees from suit, except those who are plainly incompetent or those who knowingly violate the law. A plaintiff may only overcome a government official’s immunity by showing first that the official violated the plaintiff’s federal statutory or constitutional rights, and that the rights in question were clearly established at the time of their alleged violation.

The Due Process clause of the Fourteenth Amendment protects an individual’s life, liberty, and property against government actions. Generally, it does not require the state to protect life, liberty, and property of its citizens against invasion by private actors. There are two exceptions to this rule.  First, state officials may be liable for the acts of private parties when the state has assumed a special relationship with and control over an individual. Second, state officials can be liable for the acts of private parties where those officials created the very danger that caused the harm. The Crosettos argue that the danger-creation exception applies here.

A showing of affirmative conduct and private violence are preconditions necessary to invoking the state-created danger theory. Here it is undisputed that B.I.C.’s death was caused by an act of violence by a private party. There is, however, a question as to whether there is sufficiently affirmative conduct on the part of the state in placing B.I.C. in danger. Mere negligence or inaction is not enough. A social worker who fails to act may be negligent but does not forfeit immunity when there is no affirmative action.

The Tenth Circuit held there remained an issue here as to whether Ms. Gillen purposefully, maliciously, and intentionally failed to act—therefore placing B.I.C. in harm’s way. The evidence viewed in the light most favorable to the plaintiffs indicates a deliberate decision to ignore. There were numerous, specific indications of abuse and a deliberate decision not to remove B.I.C. or respond in any way to the extensive evidence of abuse. A rational trier of fact could find that Ms. Gillen’s conduct went well beyond merely allowing unreasonable risks to persist, but was deliberate, affirmative conduct in light of her specific knowledge of real danger to B.I.C. These facts, taken in the light most favorable to the Crosettos, could constitute violations of due process rights at trial.

Familial Association

The Crosettos also claimed that their due process rights to familial association were violated by Ms. Gillen’s actions. In order to show deprivation of the right to familial association, a plaintiff must show that the state actor intended to deprive him or her of a specially protected familial relationship. Plaintiff must show that by specified acts and conduct, defendant intentionally, or with conscious disregard for plaintiff’s rights, deprived them of associational rights, with the qualification immediately following that specifically, Defendant knew, or should have known that by her actions, death was likely to occur, and the plaintiffs would be denied the companionship and association of the decedent. Because it was undisputed that Ms. Gillen had no specific intent to cause the death of B.I.C., the Crosettos’ familial association claims failed.

Accordingly, the Tenth Circuit REVERSED in part, holding that qualified immunity was not appropriate on the state danger-creation claim. The Tenth Circuit AFFIRMED summary judgment on the familial association claim.

Tenth Circuit: In Mine Collapse Case, One Defendant Properly Dismissed for Lack of Jurisdiction; Dismissal of Remaining Defendants Under Forum Non Conveniens Doctrine Was Premature

The Tenth Circuit published its opinion in Fireman’s Fund Insurance Company v. Thyssen Mining Construction of Canada on Wednesday, December 19, 2012.

Fireman’s Fund Insurance Company and Zurich Insurance Company Ltd. (collectively “Plaintiffs”), as subrogees of Boart Longyear, Inc., sued Thyssen Mining Construction of Canada Ltd. (“Thyssen”) and Mudjatik Thyssen Mining Joint Venture (“MTM”) (collectively “Defendants”) in New Mexico for negligence relating to the collapse of a mine that MTM was excavating in Canada. The district court dismissed MTM for lack of personal jurisdiction and dismissed the entire case under the forum non conveniens doctrine. Plaintiffs appealed.

On appeal, Plaintiffs contest (1) the dismissal of MTM for lack of personal jurisdiction and (2) the grant of Defendants’ motion to dismiss under the forum non conveniens doctrine.

Personal jurisdiction over a nonresident defendant satisfies due process if there are sufficient minimum contacts between the defendant and the forum State, and jurisdiction over the defendant cannot offend traditional notions of fair play and substantial justice. Because Plaintiffs did not allege any facts to establish that MTM had the requisite minimum contacts with New Mexico to confer personal jurisdiction, nor did they allege facts showing that the New Mexico district court had personal jurisdiction over MTM under the agency theory, the Tenth Circuit affirmed dismissal of Defendant MTM for lack of personal jurisdiction.

Courts apply a two-step test to determine whether a case may be dismissed under the forum non conveniens doctrine when the only alternative forum is in a foreign country. First, there must be an adequate alternative forum in which the defendant is amenable to process. Second, the court must confirm that foreign law is applicable.

The Tenth Circuit held that the district court was premature in determining that the Canadian court was an adequate alternative forum. The forum non conveniens decision focused on the applicability of Canadian law and the inconvenience of New Mexico as a forum. The district court’s dismissal of Plaintiffs’ claims was premature because the Canadian court had not yet ruled on Defendants’ statute of limitations defense. Until this ruling occurs, the availability of the Canadian court as an adequate alternative forum was unclear and dismissal of the case in New Mexico risked depriving the Plaintiffs of any forum.

Dismissal of MTM AFFIRMED. Dismissal of Plaintiffs’ case under the forum non conveniens doctrine REVERSED and REMANDED.

Tenth Circuit: Unpublished Opinions, 12/19/12

On Wednesday, December 19, 2012, the Tenth Circuit Court of Appeals issued three published opinions and seven unpublished opinions.

United States v. Lawton

Salazar v. On the Trail Rentals

United States v. Gutierrez

Mahomed v. Holder

Gaff v. St. Mary’s Regional Medical Center

United States v. Patton

Freeman v. Carroll

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