August 24, 2019

Archives for 2013

Happy New Year from CBA-CLE

As we look back on 2013 and look forward to 2014, we would like to take a moment to thank you, our loyal readers and customers. We are grateful for you and look forward to another terrific year in 2014. Happy New Year!


Judicial Nominating Commission Appointments Announced

On Friday, December 27, 2013, Governor Hickenlooper announced appointments to 14 of Colorado’s judicial nominating commissions, including the Supreme Court Nominating Commission.

The judicial nominating commissions are responsible for interviewing applicants for judicial vacancies and selecting three of the applicants for appointment to the judiciary. The governor then has 15 days in which to appoint one of the three nominees to the bench. If the governor fails to appoint a nominee within this time, the Chief Justice of the Colorado Supreme Court may select a nominee.

Each judicial district has a nominating commission comprised of seven citizen members who must reside in the judicial district. No more than four members may have the same political party affiliation, and at least four members must not be admitted to practice law in Colorado. Additionally, there is a Supreme Court Nominating Commission, responsible for nominating appointees for the Colorado Court of Appeals and Colorado Supreme Court. The Supreme Court Nominating Commission comprises one attorney and one non-attorney member from each of Colorado’s seven judicial congressional districts, with one additional non-attorney member.

The appointments are as follows:

  • First Judicial District Nominating Commission – Thomas Overton of Golden to serve as a attorney and a Democrat from Jefferson County.
  • Second Judicial District Nominating Commission – Christina Habas of Denver to serve as an attorney and a Democrat from Denver County.
  • Fourth Judicial District Nominating Commission – Larry Gaddis of Colorado Springs to serve as an attorney and a Democrat from El Paso County.
  • Ninth Judicial District Nominating Commission – Andrea Bryan of Carbondale to serve as an unaffiliated attorney from Garfield County.
  • Tenth Judicial District Nominating Commission – James Whitmire of Pueblo to serve as an attorney and a Republican from Pueblo County.
  • Twelfth Judicial District Nominating Commission – Paul Motz of Alamosa to serve as an attorney and a Democrat from Alamosa County.
  • Thirteenth Judicial District Nominating Commission – Edward Zorn of Ft. Morgan to serve as an attorney and a Republican from Morgan County.
  • Seventeenth Judicial District Nominating Commission – Daniel Carr of Westminster to serve as an unaffiliated attorney from Adams County; Patricia Jarzobski of Westminster to serve as an attorney and a Democrat from Adams County.
  • Eighteenth Judicial District Nominating Commission – Candace Figa of Aurora to serve as an attorney and a Republican from Arapahoe County.
  • Nineteenth Judicial District Nominating Commission – William Crossier of Greeley to serve as an attorney and a Republican from Weld County.
  • Twenty-First Judicial District Nominating Commission – Scott Burrill of Grand Junction to serve as an unaffiliated attorney from Mesa County; Amy Hand of Grand Junction to serve as an attorney and a Republican from Mesa County.
  • Twenty-Second Judicial District Nominating Commission – Sean Murray of Mancos to serve as an attorney and a Democrat from Montezuma County.
  • Supreme Court Nominating Commission – Kathleen Lord of Denver to serve as an attorney from the First Congressional District; Michael Burg of Greenwood Village to serve as an attorney and a Democrat from the Sixth Congressional District.

Tenth Circuit: Sentence Enhancement Affirmed in Bomb Threat Case

The Tenth Circuit Court of Appeals published its opinion in United States v. Anwar on Monday, December 23, 2013.

Daud Anwar was an engineering student at New Mexico State University (“NMSU”). Seeking to avoid sitting for an important test, Mr. Anwar sent two emails and made four phone calls in which he falsely threatened to detonate explosives at various NMSU campus locations. Anwar pled guilty to making false threats to destroy buildings in violation of 18 U.S.C. § 844(e). The district court sentenced him to 24 months in prison and three years of supervised release.

Anwar appealed only the four-level sentence enhancement he received under the United States Sentencing Guidelines (“U.S.S.G” or “Guidelines”) for causing a “substantial disruption” to public “functions or services.” U.S.S.G. § 2A6.1(b)(4)(A). Applying the “substantial disruption” provision was a matter of first impression for the Tenth Circuit. The court decided the correct analysis was to consider objectively quantifiable effects, including the scope and time of the disruption at issue.

The uncontested facts in this case were sufficient to show substantial disruption. Anwar’s false threat to detonate a bomb shut down an entire building, caused the evacuation of 240 people and the interruption of 14 classes. The threat diverted various NMSU employees and police officers from their regular duties. Six police officers and six NMSU firefighters swept the building for explosives before anyone could reenter the building. Campus authorities spent the next two days investigating before identifying Anwar as the suspect.

The court affirmed the sentence enhancement.

Tenth Circuit: Court Rejects “Continuing Wrong” Doctrine in Copyright Infringement Claims

The Tenth Circuit Court of Appeals published its opinion in Diversey v. Schmidly on Monday, December 23, 2013.

Andrew Diversey sued several administrators and members of the Board of Regents of the University of New Mexico (UNM) for infringing his copyright to an unpublished dissertation. Diversey complained about alleged failings of his dissertation committee to departmental and university administrators, including Charles Fleddermann, UNM’s Dean of Graduate Studies. As Diversey continued to attempt to convince UNM officials to correct the deficiencies in the dissertation process, he provided a copy of the draft dissertation to Doug Weintraub, who volunteered to proofread it. Before Weintraub could do so, Fleddermann allegedly confiscated the draft.

On February 7, 2008, UNM Deputy Provost Richard Holder wrote Diversey to advise him the dissertation had been deposited in the Zimmerman Library at UNM. Diversey continued complaining to various UNM officials. On June 16, 2009, Diversey discovered two copies of his dissertation: one in UNM’s Zimmerman Library and another in the collection of the Zimmerman Library’s Center for Southwest Research. These copies were available to the general public. Diversey wrote each of the appellees, including the Dean of University Libraries, citing his copyright and requesting the return of all copies of his dissertation. On October 5, 2009, UNM’s counsel sent Diversey a letter refusing Diversey’s request.

On June 15, 2012, Diversey filed a complaint for copyright infringement. The district court dismissed Diversey’s complaint as untimely under Fed. R. Civ. P. 12(b)(6), concluding the claim accrued in February 2008, when Diversey was notified of his dissertation’s deposit in the Zimmerman Library. A claim for copyright infringement must be brought within three years after the claim accrues.

Diversey argued that under a “continuing wrong” exception to the statutory limitation, his claim was not time barred. The Tenth Circuit rejected as unnecessary the “continuing wrong” doctrine in the copyright infringement context. It adopted the majority view, which holds that a related act of infringement during the limitation period does not allow recovery for acts that occurred more than three years before a complaint was filed.

Diversey, however, argued two infringements, one of his exclusive right to make copies; the other of his right to distribute copies to the public. The court held that his claim regarding making copies was untimely as he had notice of infringement no later than February 20, 2008. The court affirmed the dismissal of this claim but reversed dismissal of his right to distribute claim. Depositing the work in the library was not a distribution of the work. That did not occur until it was entered into the library’s catalog information system, at which time the public could access it.

The court rejected the appellees’ fair use argument and remanded to the district court to address their individual liability for infringement.

Tenth Circuit: Unpublished Opinions, 12/30/13

On Monday, December 30, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Eckardt v. Jones

Chappell v. Monday

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Parcel of Land Sold to School District Was Never a Park

The Colorado Court of Appeals issued its opinion in Friends of Denver Parks, Inc. v. City & County of Denver on Thursday, December 26, 2013.

City Land—Park—Common Law—Denver Charter § 2.4.5.

Defendant, the City and County of Denver (City), agreed to transfer a parcel of land (southern parcel) to a school district so that the district could build a school on it. Plaintiffs, an organization called Friends of Denver Parks, Inc. and several other interested parties, tried to file a referendum petition to repeal the ordinance transferring the southern parcel; however, the City’s Clerk and Recorder refused to accept the petition. Plaintiffs then filed a motion for a preliminary injunction to enjoin the City’s transfer of the southern parcel to the school district. The court denied both requests.

On appeal, plaintiffs argued that the trial court erred in denying their requested relief because (1) the City’s conduct over the years had dedicated the southern parcel as a park under the common law; and (2) the City’s charter requires that voters approve the transfer of a “park belonging to the city as of December 31, 1955.” The Court of Appeals disagreed on both counts.

Denver Charter § 2.4.5 sets forth the sole mechanism as of December 31, 1955 for creating parks and transferring parks. The City did not pass an ordinance dedicating the southern parcel as a park pursuant to § 2.4.5 after December 31, 1955. Additionally, the record did not clearly establish that the City, through its unambiguous actions, had demonstrated an unequivocal intent to dedicate the southern parcel as a park on or before December 31, 1955. Therefore, Denver Charter § 3.2.6 authorized the City to sell or transfer it without following the requirements of § 2.4.5, and the trial court did not abuse its discretion when it determined that plaintiffs did not establish a reasonable likelihood of success on the merits of this issue. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Qualifed Immunity Denial Reversed Because No Constitutional Duty to Release Person Arrested Based on Probable Cause

The Tenth Circuit Court of Appeals published its opinion in Panagoulakos v. Yazzie on Friday, December 20, 2013.

Defendant Officer Patricia Yazzie appealed the district court’s denial of qualified immunity in this § 1983 action alleging wrongful arrest and imprisonment (Count I) and illegal seizure of property (Count II). This is an interlocutory appeal following the district court’s ruling in an action brought by Spero Panagoulakos pursuant to 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1343.

An Albuquerque police officer pulled over Panagoulakos in a traffic stop. Panagoulakos informed the officer he had a firearm in the vehicle. The officer ran a check and learned Panagoulakos was the subject of a protective order. Officer Yazzie was called to the scene and instructed to take Panagoulakos to the station and confirm the protective order was valid and that it did not contain an exception to the prohibition on firearm possession claimed by Panagoulakos. Yazzie mistakenly believed all orders of protection prohibit firearms possession, but 18 U.S.C. § 922(g) prohibits such possession only when the subject is classified as an “intimate partner.” Yazzie prepared a criminal complaint and had Panagoulakos detained.

The Tenth Circuit stated that to show that Yazzie violated a clearly established constitutional right, Panagoulakos would need to “show that, even though probable cause supported his initial arrest, clearly established law gave fair warning to Officer Yazzie that following her review of the protective order it was her constitutional duty to release him.” Because the majority of courts had never imposed such a duty, the court, in a 2-1 decision, held that Yazzie was entitled to qualified immunity and reversed the district court.


Colorado Supreme Court: Defendant Bears Burden of Proving that Search and Seizure Violated Fourth Amendment Rights

The Colorado Supreme Court issued its opinion in People v. Cunningham on Monday, December 23, 2013.

Criminal Procedure—Crim. P. 41(e)—Suppression Hearing—Defendant’s Burden of Going Forward With Evidence—Searches and Seizure Under Warrant.

The Supreme Court held that the trial court erred in suppressing evidence when it ruled that the prosecution must go forward with evidence showing that the warrant in this case was facially valid and legally executed. Whether a search or seizure is performed pursuant to a warrant or is warrantless, the defendant under Crim.P. 41(e) bears the burden of going forward to show that the search or seizure violated his or her Fourth Amendment rights. The suppression order was reversed and the case was remanded to the trial court.

Summary and full case available here.

Colorado Supreme Court: Attractive Nuisance Doctrine Applies to All Children, Not Just Trespassing Children

The Colorado Supreme Court issued its opinion in S.W. v. Towers Boat Club, Inc. on Monday, December 23, 2013.

Attractive Nuisance—CRS § 13-21-115.

The Supreme Court considered whether, under Colorado’s premises liability statute, CRS § 13-21-115, the attractive nuisance doctrine applies to both trespassing children and licensees or invitees. The Court held that the doctrine permits all children, regardless of their classification, to bring a claim for attractive nuisance. The Court therefore reversed the judgment of the court of appeals, which had found that the doctrine only protects trespassing children.

Summary and full case available here.

Colorado Supreme Court: Board Members of Water Conservancy District Serving Expired Terms May Continue to Vote

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Yellow Jacket Water Conservancy District in Rio Blanco County: Yellow Jacket Water Conservancy District v. Livingston on Monday, December 23, 2013.

Diligence Applications—Holdover Directors—Water Conservancy Act.

The Supreme Court held that the holdover provision in the Water Conservancy Act, CRS § 37-45-114(1)(b), enables a holdover director to continue to serve as a de jure officer and does not impose a temporal limit on his or her authority to act on behalf of a water district. The water court’s judgment was reversed and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 12/26/13

On Thursday, December 26, 2013, the Colorado Court of Appeals issued one published opinion and 29 unpublished opinions.

Friends of Denver Parks v. City & County of Denver

The summary for this case is forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Tortious Interference with Contract Claims Failed

The Tenth Circuit Court of Appeals published its opinion in Vazirani v. Heitz on Friday, December 20, 2013.

Anil Vazirani is an independent insurance agent, also known as a producer, who contracts with insurance companies to sell life-insurance and annuity products. He owns and manages Vazirani & Associates Financial, LLC and Secured Financial Solutions, LLC. In 2005, Vazirani contracted with Aviva Life and Annuity Company, a provider of life-insurance and annuity products. After approximately four years, Defendants Mark Heitz and Jordan Canfield, executives at Aviva, cancelled the contract.

In October 2009, Vazirani filed suit in federal court. The amended complaint named Heitz and Canfield as defendants, claiming that they (1) tortiously interfered with Vazirani’s contractual relationship with Aviva; (2) tortiously interfered with Vazirani’s business expectancies; (3) entered into a civil conspiracy to tortiously interfere with Vazirani’s contract with Aviva and Vazirani’s business expectancies; and (4) aided and abetted in each other’s tortious acts. The district court granted the Defendant’s motion for summary judgment on all claims.

Vazirani argued on appeal that the district court erred in granting summary judgment because he presented enough evidence that a jury should have been permitted to decide the tortious-interference claims. The court applied Arizona law and held that because the Defendants were acting within the scope of their authority, they were the employer and could not interfere with their own contract unless they acted with purely personal reasons without any motivation to serve Aviva. The court held that Vazirani failed to prove any personal motivation and a lack of business motives and affirmed the district court.