August 17, 2019

Archives for February 2013

James Coyle to Replace John Gleason as Head of Office of Attorney Regulation Counsel

On Thursday, February 28, 2013, the Colorado Supreme Court announced that James C. “Jim” Coyle will be the new Chief Regulation Counsel at the Colorado Office of Attorney Regulation Counsel, effective March 1, 2013. He will replace John Gleason, who announced in January his retirement from the Colorado OARC and move to Oregon to become the Oregon State Bar’s Director of Regulatory Services.

Jim Coyle has been with the OARC since 1990, and has been Chief Deputy Regulation Counsel since 2010. For the first 10 years with the Office, he prosecuted lawyers in disciplinary, disability and contempt proceedings; represented the Board of Law Examiners in admissions cases; and represented the Unauthorized Practice of Law Committee in investigating and prosecuting injunctive and contempt proceedings against non-lawyers. From 2001 through 2011, Jim supervised the trial division of the office. He has also acted as counsel for the Colorado Commission on Judicial Discipline. He is a frequent presenter for CBA-CLE on topics related to professional responsibility and practice of law.

Mr. Coyle was selected as one of three finalists for the position of Chief Regulation Counsel from a pool of over 100 applicants. The finalists were nominated by the Supreme Court Advisory Committee, and the Colorado Supreme Court made the final selection.

For the full announcement from the Colorado State Judicial Branch, click here.

Tenth Circuit: Petitioner Convicted of Rape and Murder in 1982 Failed to Meet His Burden in Conditional Habeas Corpus Petition

The Tenth Circuit published its opinion in Case v. Hatch on Tuesday, February 26, 2013.

This appeal arises from a crime committed over thirty years ago—the rape and murder of a teenager outside of Carlsbad, New Mexico. Several young men were convicted of the crime, including Petitioner Carl Case. Those convictions were upheld by the state courts in New Mexico both on direct and collateral review, and Case’s first habeas petition in federal court was denied.

In 2008, Case filed an application for permission to file a second habeas petition. He claimed constitutional error occurred at trial based on the discovery of new and previously undisclosed evidence involving a trial witness, and the recantation of trial testimony by two prosecution witnesses nearly twenty years after the trial. The Court concluded Case had made a prima facie case showing that certain recantations qualified as “newly-discovered evidence under 28 U.S.C. § 2244(b)(2)(B)(i)” and that Case had sufficiently alleged a constitutional Brady error.

The magistrate judge concluded that Case failed to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found Case guilty. Accordingly, the magistrate judge recommended the petition be dismissed. After receiving this recommendation, the district court instead held an evidentiary hearing. The district court found the recantations credible, determined that a constitutional Brady error occurred at Case’s trial, and ruled that Case satisfied the procedural hurdle erected by 28 U.S.C. § 2244(b)(2)(B) (AEDPA). The district court found the state court failed to holistically evaluate the impact of the evidence and improperly used an abuse of discretion standard when evaluating Case’s Brady claim. The district court granted Case the conditional writ of habeas corpus at issue.

28 U.S.C. § 2244(b) provides that a successive habeas corpus application shall be dismissed unless the two gate-keeping requirements are met. The first gate requires the petitioner make a prima facie showing that no reasonable fact-finder would have found Case guilty but for constitutional error at trial. The second gate requires the petitioner to back up the prima facie showing with actual evidence to show he can meet this standard. In sum, once a petitioner makes a prima facie showing, he still must pass through the second gate erected by § 2244.

Here, Case successfully identified a Brady violation, so he met the requirements of the first gate. The Tenth Circuit then had to determine whether the newly discovered evidence, based on the record as a whole, would have led every reasonable juror to a conclusion of “not guilty.”

To pass through the second jurisdictional gate, Case was required to show two things. One was that the factual predicate for his Brady claim could not have been discovered previously through the exercise of due diligence. Case was then required to show “the facts underlying the Brady claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found him guilty of the underlying offense.” Id. § 2244(b)(2)(B)(ii).

Petitioner failed to meet his burden. Looking to the evidence the jury heard at trial, Case’s arguments did not meet the standard of clear and convincing evidence that no reasonable fact-finder would have found him guilty of the underlying offense. Case failed to pass through the second § 2244 gateway, which would have allowed the Tenth Circuit to consider the merits of his application.

The district court’s conditional grant of habeas relief was VACATED, and REMANDED for the court to DISMISS for lack of jurisdiction.

Tenth Circuit: No Sixth Amendment Violation Occurred in Embezzlement Case

The Tenth Circuit issued its opinion in United States v. Addison on Tuesday, February 26, 2013.

Amanda Addison and Melody St. Clair were on trial for embezzling or converting funds from the Northern Arapahoe Tribe’s Department of Social Services (DSS). On the third day of trial, the trial judge declared a mistrial as to St. Clair only and excluded her from the courtroom for the remainder of the trial. Addison was convicted. She appealed two issues: (1) whether the exclusion of St. Clair violated Addison’s Sixth Amendment right to a public trial and (2) whether the evidence was sufficient to demonstrate criminal intent.

Because the district court had a substantial reason for excluding St. Clair, no Sixth Amendment violation occurred. On the third day of their joint trial, during the government’s case-in-chief, counsel for St. Clair informed the court he had a potential conflict of interest with one of the government’s witnesses, Marliss Quiver. He had represented her in a 1994 criminal prosecution for misuse of funds, and based on the circumstances, the danger of witness intimidation became substantial. While an accused enjoys the right to a public trial, the right is not absolute, and St. Clair’s exclusion did not undermine the interests protected by the Sixth Amendment right to a public trial.

The evidence was sufficient to prove Addison’s knowing and intentional taking of DSS funds. Shortly after beginning her employment with DSS, Addison and St. Clair began issuing checks to themselves from the DSS account for forbidden uses that far exceeded their salaries. Addison and St. Clair received over $140,000 in employee advances and loans; Addison’s share was over $80,000 consisting of over seventy checks. Addison admitted to having used the money to gamble. When asked whether, in retrospect, her conduct looked like theft, she said yes. The evidence at trial was sufficient to permit the inference that Addison improperly, knowingly, and intentionally took money belonging to or in the care of DSS. The evidence belied her claim of innocent taking.


Tenth Circuit: Unpublished Opinions, 2/27/13

On Wednesday, February 27, 2013, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Fraire

United States v. Alter

Meza-Rios v. Holder

Haynes v. Memmen

United States v. Hawkins

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

SB 13-149: Repealing the Advisory Committee to Establish an All-Payer Health Claims Database

On Wednesday, January 30, 2013, Sen. John Kefalas introduced SB 13-149 – Concerning the Repeal of the Advisory Committee to Establish an All-Payer Health Claims Database. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2010, the general assembly created an advisory committee to establish an all-payer health claims database. The bill repeals the advisory committee. On Feb. 14, Health & Human Services Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

SB 13-148: Indefinitely Continuing the Colorado Youth Advisory Council

On Wednesday, January 30, 2013, Sen. John Kefalas introduced SB 13-148 – Concerning Continuation of the Colorado Youth Advisory Council. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill extends the Colorado youth advisory council indefinitely. On Feb. 20, the Health & Human Services approved the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

SB 13-147: Clarification of Workers’ Compensation Laws for Statutory Employers

On Wednesday, January 30, 2013, Sen. Cheri Jahn introduced SB 13-147 – Concerning an Employer’s Workers’ Compensation Liability to a Person when the Person is Injured While not on the Employer’s Premises. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that an employer is not liable as a statutory employer when a lessee, sublessee, contractor, or subcontractor, or their employee, is injured while not on the employer’s premises. The bill is assigned to the Business, Labor, & Technology Committee.

SB 13-146: Modifying Procedures Within the Board of Assessment Appeals

On Tuesday, January 29, 2013, Sen. Lois Tochtrop introduced SB 13-146 – Concerning Procedures Governing the Board of Assessment Appeals in the Department of Local Affairs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In connection with the board of assessment appeals (board) within the department of local affairs, the bill makes the following modifications:

  • Specifies that appointments to the board shall be as follows: one member shall be appointed for a term of two years, and two members shall be appointed for terms of four years. Thereafter, appointments to the board shall be for terms of four years each. In order to allow for appeals to be heard timely, up to six additional members may be appointed to the board by the governor with the consent of the senate. Such additional members shall be appointed for terms of one state fiscal year each.
  • Eliminates existing statutory provisions requiring decisions on appeals from decisions of county boards of equalization to be rendered within 30 days after the earlier of the date of hearing on the appeal or by the last day of the same calendar year. This section of the bill also eliminates existing statutory provisions requiring the general assembly to provide by appropriation for the appointment of additional board members and the hiring of additional personnel to assist the board in meeting its caseload, as well as authorization for the board to schedule hearings for an extended period in the event that, as the result of an extraordinary work load, the board is unable to complete all its hearings before the last day of the same calendar year. Under current law, all fees collected by the board, after being transmitted to the state treasurer, are credited to the general fund. Under this section of the bill, such moneys collected in the future will be transmitted to the board of assessment appeals cash fund (cash fund), which the bill creates in the state treasury. In making the annual appropriation to the board under the annual general appropriation act, the bill requires the general assembly to consider available revenues and reserve balances in the cash fund.
  • Requires the board to issue a written decision for each appeal it hears. Each such written decision must either be a summary decision or a full decision. A full decision must contain specific findings of fact and conclusions of law. A summary decision need not contain specific findings of fact and conclusions of law. If the board has issued a summary decision, the bill authorizes a party dissatisfied with the summary decision to file a written request with the board for a full decision. The bill specifies requirements applicable to the submission of the request. Timely filing of the written request with the board is a prerequisite to review of the board’s decision by the court of appeals. Upon timely request for a full decision, the board is required to issue a full decision and enter it as the final decision in the appeal subject to judicial review by the court of appeals.
  • The board currently possesses the authority to issue such orders as it deems necessary to ascertain facts and to carry out its decisions. The bill eliminates the existing statutory requirement that any such order directed to a county assessor or a county board of equalization is enforceable upon application of the property tax administrator.

On February 22, the Appropriations Committee amended the bill and sent it to the full Senate for consideration on the 2nd Reading Consent Calendar.

Since this summary, the bill passed 2nd Reading in the Senate with amendments, and passed 3rd Reading unamended. It was introduced in the House and assigned to the Local Government Committee.

Governor Hickenlooper Announces Appointments to 22nd Judicial District Nominating Commission

On Tuesday, February 26, 2013, Governor Hickenlooper announced appointments to several boards and commissions, including the 22nd Judicial District Nominating Commission and the Air Quality Control Commission.

Governor Hickenlooper appointed Stanley M. Morris of Cortez, to serve as an attorney and as a Republican from Montezuma County for the 22nd Judicial District. Each of Colorado’s 22 judicial districts has a nominating commission that reviews applications for judicial appointments and selects nominees for the governor’s appointment. There is also a Supreme Court Nominating Commission that selects nominees for appointment to the Court of Appeals and Supreme Court. The judicial district nominating commissions consist of seven citizens, three of whom may be licensed to practice law in the State of Colorado and of whom no more than four can be of the same political party.

The Air Quality Control Commission develops policy and regulates pollution to improve ambient air quality standards in Colorado. Governor Hickenlooper reappointed Teresa A. Coons of Grand Junction, to serve as a representative with scientific experience for a term expiring January 31, 2014, and appointed William R. Toor of Boulder, to serve as a representative with technical and private sector experience, and Jana Beth Milford of Boulder, to serve as a representative with legal and scientific experience. Their terms expire January 31, 2016.

For the complete list of the governor’s boards and commissions appointments, click here.

Tenth Circuit: District Court Lacked Subject Matter Jurisdiction Because Hospice Provider Failed to File Timely Administrative Appeal

The Tenth Circuit published its opinion in Full Life Hospice, LLC v. Sebelius on Friday, February 26, 2013.

Full Life Hospice is a hospice care provider participating in the federal Medicare program. Over a number of years, it provided hospice care services to terminally ill Medicare beneficiaries and sought reimbursement for these services from the Department of Health and Human Services (HHS). A fiscal intermediary, acting on behalf of HHS, contested some of the reimbursements and demanded repayment of funds that it claimed were distributed in excess of a spending cap. Full Life then unsuccessfully challenged the intermediary’s determination through an administrative appeal, which was denied as untimely. On appeal to the district court, the court found no basis to excuse Full Life’s untimely appeal. Full Life appealed.

If a provider such as Full Life “is dissatisfied with a final determination” made by a fiscal intermediary and the amount in controversy exceeds $10,000, the provider can request a hearing on the matter with the Provider Reimbursement Review Board (the Board). 42 U.S.C. § 1395oo(a)(1)(A)(i), (a)(2). A provider is required to file a request for such a hearing with the Board “within 180 days after notice of the intermediary’s final determination.” Id. § 1395oo(a)(3). Under limited circumstances, the Board can extend the 180-day time period upon a “good cause showing by the provider.” 42 C.F.R. § 405.1836(a).

In this case, Full Life conceded it filed an administrative challenge to the notices more than 180 days after Full Life received the notices from the fiscal intermediary. Accordingly, the Tenth Circuit agreed that the district court lacked subject matter jurisdiction because of Full Life’s failure to file a timely administrative appeal.

Full Life also appealed the district court’s denial of the motion to amend its complaint. However, granting the amendment would have been futile because the amended complaint would have also been subject to dismissal as time-barred under the 180-day rule.


Tenth Circuit: Jury Award to Stewart Title on Claims Based on Fraudulent Concealment of Loan Affirmed

The Tenth Circuit published its opinion in Stewart Title Guaranty Company v. Dude on Tuesday, February 26, 2013.

In 2003, Harold Dude secured a $1.9 million loan from Washington Mutual on a house he owned in Aspen. Mr. Dude quickly sought to borrow another $500,000 from Wells Fargo. To satisfy Wells Fargo, Mr. Dude had to complete a form for the bank’s title insurance company, Stewart Title. On that form, he was asked to disclose existing liens and loans on the property, at least those that hadn’t already turned up in Stewart Title’s title search. Mr. Dude concealed the existence of the Washington Mutual loan, and Stewart Title and Wells Fargo proceeded with the second loan.

Three years later Mr. Dude sold the Aspen property. Stewart Title was contacted to provide the title insurance. Once more Stewart Title’s search failed to reveal the Washington Mutual loan (the loan was defectively recorded). Once more Stewart Title presented Mr. Dude with a form asking about loans and liens on the property. He hide the loan’s existence once more. Relying on the 2003 and 2006 forms Mr. Dude completed, Stewart Title distributed nothing to Washington Mutual and sent $1.9 million to Mr. Dude.

But the scheme began to unravel.  Mr. Dude stopped making payments on the Washington Mutual loan, and threatened the property’s new owner, Rosalina Yue, with foreclosure; in turn, Ms. Yue made a claim on her title insurance with Stewart Title. Honoring what it perceived to be its contractual obligations, Stewart Title paid Washington Mutual’s loan amount in full, some $1.95 million.

After discovering Mr. Dude’s actions, Stewart Title brought this diversity lawsuit. A jury found Mr. Dude and his company liable for (among other things) fraudulent misrepresentation under Colorado law, awarding punitive as well as actual
damages. Mr. Dude appealed.

On appeal, Mr. Dude argued Stewart Title failed to present sufficient evidence of an essential element at trial. In Colorado, to win a claim for fraudulent concealment, the plaintiff must show its reliance on the defendant’s misrepresentation was justifiable. See, e.g., M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1382 (Colo. 1994).  But what constitutes justifiable reliance?

First at issue was whether there was competent evidence in the record that Stewart Title was unaware of the false representations. And plainly there was. Stewart Title offered testimony explaining that the loan was defectively recorded. Accordingly, Mr. Dude’s first argument failed.

Second, Mr. Dude argued that Stewart Title “constructively” knew of his fraud because the Washington Mutual loan was publicly recorded. All Stewart Title had to do, he says, was visit the county clerk’s office to find it. The company’s failure to do so rendered its reliance on him unjustifiable.  However, the record showed that Stewart Title did look for recorded loans and liens on the property and failed to find the Washington Mutual loan only because the deed was defectively recorded. Defectively recorded because the Washington Mutual documentation contained no legal description of the property and so wasn’t clearly associated with the property in the clerk’s files. And under Colorado law, “a recorded deed of trust that completely omits a legal description is defectively recorded and cannot provide constructive notice to a subsequent purchaser of another party’s security interest in the property.” Sender v. Cygan (In re Rivera), No. 11SA261, 2012 WL 1994873, at *2 (Colo. June 4, 2012). If that is true when it comes to a purchaser’s obligations under property law, the Tenth Circuit was at a loss how more might be required of a plaintiff seeking recovery in fraud. Therefore, Mr. Dude’s second argument also failed.



Tenth Circuit: Unpublished Opinions, 2/26/13

On Tuesday, February 26, 2013, the Tenth Circuit Court of Appeals issued four published opinions and five unpublished opinions.

Kee v. Federal National Mortgage Corporation

Aguirre v. City of Greeley Police Department

Cummings v. Ellsworth Correctional Facility

United States v. Olinger

Clayton v. Jones

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