July 20, 2019

Archives for April 15, 2013

In Memoriam: Hon. Robert H. McWilliams, Jr.

Judge McWilliamsThe Tenth Circuit Court of Appeals lost one of its senior judges last Wednesday when Hon. Robert H. McWilliams passed away. Judge McWilliams was nominated to the Tenth Circuit by President Nixon on September 22, 1970, and was confirmed by the Senate on October 8, 1970. He became a senior judge in 1984.

Prior to his work on the Tenth Circuit bench, Judge McWilliams was a Colorado Supreme Court justice from 1961 to 1970, a district court judge for the Second Judicial District from 1952 to 1961, and a municipal court judge in Denver from 1949 to 1952. He was in private practice from 1949 to 1952, and prior to that was a Denver district attorney from 1946 to 1949. He also worked in the armed forces, as a special agent in the U.S. Office of Naval Intelligence from 1942 to 1945 and a U.S. Army Sergeant in the Office of Strategic Services from 1945 to 1946. He received his A.B. degree from the University of Denver in 1938 and his LL.B. from the University of Denver College of Law in 1941.

He is survived by his wife, Joan McWilliams, a Denver-based divorce mediation attorney. There will be a memorial service on Friday, April 19,  at 10:00 a.m. at Church of the Ascension, 600 Gilpin Street, Denver, CO 80218, with a reception following at the University Club, 1673 Sherman Street, Denver, CO 80203.

Colorado Court of Appeals: Board of Assessment Appeals Erred by Not Addressing YMCA’s Declaration of Religious Purposes

The Colorado Court of Appeals issued its opinion in Larimer County Board of Commissioners v. Colorado Property Tax Administrator on Thursday, April 11, 2013.

Property Tax Exemption—Charitable Use Exemption—Religious Purpose Exemption—Jurisdiction.

In this property tax exemption case, the Young Men’s Christian Association of the Rockies (YMCA) and the Colorado Property Tax Administrator (Administrator) appealed the Board of Assessment Appeals (BAA) orders. The BAA found that the YMCA was not entitled to a charitable use exemption or a religious purposes exemption from property taxes, except for its chapels and religious activity center. The orders were vacated in part, the appeal was dismissed in part, and the case was remanded.

The YMCA owns and operates facilities in Grand and Larimer Counties. The Counties contended that the Court of Appeals did not have jurisdiction to entertain the Administrator’s appeal. Because the BAA did not recommend that the matter was of statewide concern, the Administrator may not appeal. Accordingly, the Court did not have jurisdiction to hear the Administrator’s appeal and, therefore, dismissed it.

The Counties contended that the Court did not have jurisdiction to entertain the YMCA’s appeal. CRS § 39-2-117(5)(b) gives any owner of taxable property in such county the right to appeal the tax administrator’s determination regarding an application for a property tax exemption. Therefore, the Court of Appeals had jurisdiction to hear the YMCA’s appeal from the BAA’s determination.

The YMCA also argued that the BAA erred when it found that the YMCA did not qualify for a religious purposes exemption. The BAA did not discuss the YMCA’s declared purpose in using the properties, whether the YMCA’s activities are in furtherance of the YMCA’s religious purposes, or whether the activities are an integral part of the YMCA’s religious worship. Further, the BAA did not address the YMCA’s declaration of religious purposes contained in its application, the effect of the declaration’s presumed validity, or whether the presumption had been overcome. Because such declarations are presumptive with regard to the religious purposes for which property is used, the BAA did not apply the proper legal standards and, therefore, erred as a matter of law.

The YMCA further contended that the BAA erred when it found that the YMCA did not qualify for a charitable use exemption. Based on the record, the BAA did not properly consider whether the YMCA used the properties solely and exclusively for charitable purposes. Accordingly, the BAA did not apply the correct legal standards and, therefore, erred as a matter of law.

Summary and full case available here.

Colorado Court of Appeals: No Violation of Defendant’s Speedy Trial Rights When UMDDA Request Improperly Filed and Counsel Requested Continuances

The Colorado Court of Appeals issued its opinion in People v. Roberts III on Thursday, April 11, 2013.

Uniform Mandatory Disposition of Detainers Act—Speedy Trial.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of violating the Colorado Organized Crime Control Act (COCCA); conspiracy to commit computer crime (two counts); conspiracy to commit theft; conspiracy to commit forgery; computer crime (two counts); theft (four counts); forgery (seventeen counts); and possession of a forged instrument (two counts). The judgments were affirmed.

Defendant contended that his convictions must be vacated because he was not brought to trial within the period allowed by the applicable version of the Uniform Mandatory Disposition of Detainers Act (UMDDA). However, defendant improperly filed his UMDDA request while represented by counsel and improperly served this request. The court and prosecutor did not receive notice of defendant’s UMDDA request until November 10, 2005. Consequently, defendant’s 180-day UMDDA period commenced that day.

Although defendant did not waive his UMDDA rights, the time for bringing defendant to trial was properly extended beyond the May 9, 2006 date as a result of two continuances requested by his attorneys. These continuances, which did not require the personal consent of defendant, were necessary to protect defendant’s constitutional right to effective assistance of counsel, and the length of the continuances were proper, as well. Therefore, there was no violation of defendant’s UMDDA or speedy trial rights.

Summary and full case available 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 Friday, April 12, 2013. Because this is an amended opinion after rehearing with the same outcome as previously, no new summary is provided.  See the summary of the February 26, 2013 opinion here.

Tenth Circuit: Defendant’s Robbery Conviction Affirmed

The Tenth Circuit published its opinion in United States v. Baker on Thursday, April 11, 2013.

Abasi Baker was convicted in the United States District Court for the District of Kansas on seven counts each of robbery affecting commerce, use of a firearm in relation to a crime of violence and being a convicted felon in possession of a firearm. Defendant appealed his convictions, raising two arguments: (1) that use of a global-positioning-system (GPS) tracking device on his car violated his Fourth Amendment rights, and (2) that the evidence was insufficient to convict him on the eight firearms counts associated with the first four robberies.

The Tenth Circuit did not reach the merits of Defendant’s Fourth Amendment argument because he waived the argument by failing to raise it before trial, and he did not show good cause why it was not raised before trial as required by Federal Rule of Criminal Procedure 12.

The Tenth Circuit also rejected Defendant’s argument that the evidence was insufficient for a rational jury to find that he possessed the identified firearm at the times charged. Viewing the evidence in the light most favorable to the verdict, the record contained ample evidence for  any rational trier of fact to have found the defendant guilty beyond a reasonable doubt.

AFFIRMED.

Colorado Supreme Court: Announcement Sheet, 4/15/13

On Monday, April 15, 2013, the Colorado Supreme Court issued one published opinion.

In re Gateway Logistics, Inc. v. Smay

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: Unpublished Opinions, 4/12/13

On Friday, April 12, 2013, the Tenth Circuit Court of Appeals issued three published opinions and ten unpublished opinions.

Craft v. Middleton

Raymond v. Martinez

United States v. Rhone

Gonzales v. Colvin

United States v. McIntosh (Samora)

United States v. McDowell

Manning v. Blue Cross and Blue Shield

United States v. Kane

United States v. Blackburn

United States v. McIntosh (Sheldon)

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