July 18, 2019

Archives for February 13, 2013

Franz Hardy Named Recipient of Richard Marden Davis Award

HardyDavisAwardOn February 6, 2013, Franz Hardy was named the 20th recipient of the Richard Marden Davis Award. This prestigious award is given to attorneys in Denver who are under 40 years of age and exhibit exemplary civic, cultural, educational, and charitable leadership. Past recipients of the award include Colorado Supreme Court Justice Monica Marquez, Colorado Court of Appeals Judge Richard Gabriel, and former governor Bill Ritter.

Hardy is a partner at Gordon & Rees, LLP, where he focuses his practice on business and insurance litigation, including commercial disputes, employment matters, real estate, insurance coverage, and ERISA. He successfully litigated a breach of contract action against one of the nation’s largest telecommunications providers, obtaining a jury verdict in favor of his client. He is also active in the community; he is president of the Asian Pacific American Bar Association, is on the board of directors for the Center for Legal Inclusiveness, and serves on the University of Colorado Law School Alumni Board.

Hardy was presented with the Davis Award by Jim Benjamin, the president of the Denver Bar Association. Hardy graciously accepted the award, saying, “It is truly an honor to receive such a prestigious award. To be among such a highly regarded class of past winners is a humbling experience.”

Tenth Circuit: Certificate of Appealability Denied Because Applicant Failed to Make a Substantial Showing of the Denial of a Constitutional Right

The Tenth Circuit published its opinion in United States v. Cordova on Monday, February 11, 2013.

Mr. Cordova pleaded guilty in the district court to conspiracy to possess with intent to distribute and to distribute 500 grams or more of methamphetamine. He was sentenced to 216 months’ imprisonment. On direct appeal, Mr. Cordova argued that his guilty plea was involuntary, that his trial counsel was ineffective, and that his sentence was procedurally unreasonable. The Tenth Circuit affirmed Mr. Cordova’s conviction and sentence, declining to address the ineffective assistance of counsel claim because further development of the record and an opinion by the district court was needed for the Tenth Circuit’s review. Mr. Cordova then sought § 2255 relief to vacate, set aside, or correct his sentence, which the district court denied. The district court also denied Mr. Cordova’s certificate of appealability (“COA”). Mr. Cordova sought to appeal.

A COA will be issued only if the applicant makes “a substantial showing of the denial of a constitutional right.” Because Mr. Cordova made no such showing, the Tenth Circuit denied Cordova’s application for a COA and  dismissed the matter.

Tenth Circuit: Use of Juvenile Conviction for Sentence Enhancement Under ACCA Affirmed

The Tenth Circuit published its opinion in United States v. Rich on Monday, February 11, 2013.

Defendant Paul Everett Rich, III, pled guilty to one count of felon in possession of a firearm and ammunition. Because he had been convicted of three predicate offenses, he qualified for enhanced punishment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and was sentenced to the mandatory minimum of 180 months’ imprisonment. Rich appealed the sentencing enhancement claiming: 1) his juvenile adjudication was “dismissed” by Oklahoma courts and should not be counted as a prior conviction under the ACCA; and 2) the ACCA violated substantive due process by considering these older, juvenile adjudications.

The Armed Career Criminal Act provides enhanced sentences for a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) who has three prior 3“violent felony” or “serious drug offense” convictions. 18 U.S.C. § 924(e)(1). The ACCA defines “conviction” as including a finding that a person has committed an act of juvenile delinquency involving a violent felony.

Rich asserts that his juvenile adjudication cannot qualify as a predicate offense under the ACCA because a state court judge entered an order “dismissing” his juvenile case, which he contended rendered “the ‘finding’” that he committed an act of juvenile delinquency a nullity. The Tenth Circuit diagreed. In the absence of evidence to the contrary, the decision of an Oklahoma court to “dismiss” a juvenile case after adjudication meant nothing more than it was terminating its jurisdiction. As Rich presented no convincing evidence that “dismissal” meant something different, the Tenth Circuit rejected his argument.

Alternatively, Rich arguee that the ACCA violated his Fifth Amendment rights. He contended the sentencing enhancement deprived him of substantive due process because it placed no limits on the age of predicate convictions. Because due process requires only that a sentencing scheme be rational, United States v. Bredy, 209 F.3d 1193, 1197 (10th Cir. 2000), and because the Tenth Circuit could not say Congress’s decision to allow the use of these older convictions shocks the conscience, the Court concluded Rich’s substantive due process rights were not violated.


Tenth Circuit: District Court’s Summary Judgment in Favor of Forest Service on Sex Discrimination and Retaliation Claims Affirmed

The Tenth Circuit published its opinion in Conroy v. Vilsack on Monday, February 11, 2013.

Laura Conroy filed a Title VII lawsuit against her employer, the United States Forest Service, after it filled an open position with a male employee instead of her. The district court excluded the testimony of Ms. Conroy’s two experts and granted summary judgment to the Forest Service on Conroy’s claims of sex discrimination and retaliation. Conroy appealed.

As a threshold matter, the Tenth Circuit addressed Ms. Conroy’s contention that the district court erred in excluding the testimony of her experts, Dr. Dodd and Mr. Katz. Federal Rule of Evidence 702 assigns to district courts a gatekeeping  function with respect to the admissibility of expert opinions. The Tenth Circuit found that the district court did not abuse its discretion in excluding the testimony of Dr. Dodd and Mr. Katz.

Turning to Ms. Conroy’s two claims of sex discrimination and one claim of retaliation, the Tenth Circuit stated that a  plaintiff may prove a violation of Title VII either by direct evidence of discrimination or retaliation, or by following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that rubric, the plaintiff must first establish a prima facie case of discrimination or retaliation. Then, the defendant may come forward with a legitimate, non-discriminatory or non-retaliatory rationale for the adverse employment action. If the defendant does so, the plaintiff must show that the defendant’s proffered rationale is pretextual. This framework applies to both discrimination and retaliation claims.

The Tenth Circuit first addressed Ms. Conroy’s contention that the district court improperly granted Defendant’s motion for summary judgment on her first discrimination claim. Conroy’s arguments focused exclusively on pretext, the third piece of the McDonnell Douglas framework. Generally, a plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory explanations for its actions are so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief. The Tenth Circuit saw nothing in the agency’s decisionmaking process that would allow a reasonable jury to conclude that the process was used to discriminate against her on the basis of sex. In short, none of the evidence that Ms. Conroy advanced was sufficient to raise a genuine doubt about the Forest Service’s motivation in selecting Mr. Hager.

Ms. Conroy next asserted that the Forest Service’s decision to relax the qualification standards for the position and readvertise it—after she had already applied for it and been found qualified—constituted a separate act of sex discrimination. The the burden-shifting framework of McDonnell Douglas applied. Since the Forest Service articulated a legitimate, nondiscriminatory reason for its decision to lower the qualification standards and readvertise the Program Manager position, Ms. Conroy’s second claim on discrimination also failed. The Court concluded that no reasonable jury could find the Forest Service’s explanation for readvertising the position was unworthy of belief and pretextual.

Ms. Conroy finally asserted a retaliation claim arising out of the hiring process. Because plaintiff failed to establish the requisite temporal proximity between evidence of protected conduct closely followed by adverse action, the Court found her evidence of causation unpersuasive. She failed, therefore, to make out a prima facie case of retaliation.


SB 13-058: Waiving Requirement to Reverify Disibility Every Three Years when Renewing License Plate Authorizing Parking Privileges for a Person with a Permanent Disability

On Wednesday, January 16, 2013, Sen. Kevin Grantham introduced SB 13-058 – Concerning the Verification Requirement for Parking Privileges for Persons with a Permanent Disability. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires a person with a disability who obtains a license plate authorizing parking privileges from the department of revenue to verify the disability every three years when renewing the license plate. For a person with a permanent disability, the bill waives the requirement to verify the disability every three years. On Feb. 7, the Transportation Committee amended the bill and sent it to the Senate for
consideration on 2nd Reading.

Since this summary, the bill passed 2nd Reading with amendments and passed a 3rd Reading in the Senate.

SB 13-056: Prohibiting Abortion for Purposes of Prenatal Sex Discrimination

On Wednesday, January 16, 2013, Sen. Ted Harvey introduced SB 13-056 – Concerning the Prenatal Sex Nondiscrimination Act. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill outlaws:

  • The performance of an abortion for the purposes of sex selection;
  • Coercion of an abortion for the purposes of sex selection;
  • Solicitation or acceptance of funds for the performance of an abortion for the purposes of sex selection; or
  • Transporting a woman into Colorado so the woman can receive an abortion for the purposes of sex selection.

The bill is assigned to the Judiciary Committee and is set for committee review on Monday, Feb. 11 at 1:30 p.m.

Since this summary, the bill was postponed indefinitely by the Senate Judiciary Committee.

SB 13-052: With Respect to Certain Real Property Construction Defect Actions, Creating the “Trans-Oriented Development Claims Act of 2013”

On Wednesday, January 16, 2013, Sen. Mark Scheffel introduced SB 13-052 – Concerning Real Property Construction Defect Actions, and, in Connection Therewith, Enacting the “Transit-Oriented Development Claims Act of 2013.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

With respect to construction defect actions involving transit-oriented development, the bill makes the following changes to the law:

  • Creates the “Transit-oriented Development Claims Act of 2013.”
  • Institutes a right to repair for construction professionals that receive a notice of claim with respect to a construction defect in a transit-oriented development.
  • Institutes a binding arbitration requirement for claims against construction professionals with respect to transit-oriented development. This section also makes construction professionals immune to suit for environmental conditions including noise, odors, light, temperatures, humidity, vibrations, and smoke or fumes causally related to transit, commercial, public, or retail use.

With respect to construction defect actions in general, the bill clarifies the statute of repose for the six-year statute of limitations for actions against architects, contractors, builders, builder vendors, engineers, or inspectors involved in improvements to real property. The bill is assigned to the Judiciary Committee.

SB 13-077: Amending Certain Provisions of the Colorado Probate Code

On Tuesday, January 22, 2013, Sen. Ellen Roberts introduced SB 13-077 – Concerning Certain Provisions of the Colorado Probate Code.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies provisions concerning the circumstances under which each party and person in interest with a party shall be allowed to testify regarding an oral statement of a person incapable of testifying when such statement is sought to be admitted into evidence.

The bill clarifies that, subject to certain limitations, a personal representative, a person with priority for appointment as personal representative, and a court-appointed fiduciary:

  • May ascertain the testator’s probable intent or estate planning purpose on issues involving the decedent’s estate; and
  • Shall have standing to prosecute or defend that intent or purpose, at the expense of the estate, in probate proceedings.

Under current law, a personal representative must give certain information concerning his or her appointment to the heirs and devisees of the estate not later than 30 days after his or her appointment. The bill adds a requirement that this information must include a notice that any individual who has knowledge that there is a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession should give written notice of such knowledge to the personal representative of the decedent’s estate. The bill also makes changes to this law to align it with a provision of the Colorado rules of probate procedure.

The bill amends the probate code to grant a higher statutory priority to payment of child support claims in decedent’s estates. The bill gives a trustee of an intentionally defective grantor trust the discretionary authority to reimburse the grantor for payment of the income taxes attributable to the trust. This authority does not subject the trust to the grantor’s creditors or cause the trust to be included in the grantor’s estate.

The bill allows a trustee to acquire or retain a life insurance policy on the life of a person for whom the trustee has an insurable interest as a trust asset; however, a trust may expressly provide that this provision does not apply to the trust. A trustee is not relieved of liability with respect to any life insurance policy purchased from an affiliated company, or with respect to which the trustee or any affiliated company of the trustee receives any commission, unless either:

  • The trustee has given written notice of such intended purchase to all qualified beneficiaries of the trust or their legal representatives, and receives written consent to such purchase; or
  • The trust agreement contains a provision that permits purchases of life insurance from an affiliate; however, consent shall be conclusively presumed by any qualified beneficiary who has not responded to written notice by the trustee within 30 days after the mailing of such notice to the qualified beneficiary at his or her last known address.

The bill clarifies the applicability of the effective date of the Colorado probate code to conform Colorado law to the Uniform Probate Code’s effective date provisions. The bill is assigned to the Judiciary Committee; the committee will take the bill up on Wednesday, Feb. 13 at 1:30 p.m.