July 20, 2019

Archives for May 3, 2013

Sotomayor Marks Dedication of Carr Judicial Center

By Sara Crocker

Sotomayor1As a child, Sonia Sotomayor never dreamed of becoming a lawyer, let alone a U.S. Supreme Court justice — until she was introduced to Perry Mason, the fictional L.A. defense attorney of TV.

“Watching Perry Mason taught me about something called lawyering,” she said, adding the show “exposed me to this different career and I started to examine and think about it as a possibility for myself.”

Sotomayor joined Chief Justice Michael Bender and Gov. John Hickenlooper to dedicate the Ralph L. Carr Colorado Judicial Center on Thursday. Before the official dedication, she met with 100 students from around the state, as well as their family members and state legislators, to talk with them and hear their questions.

Students asked Sotomayor everything from whether she sometimes feels that she has too much power to how she coped with losing her father at the age of 9. Throughout the discussion, she encouraged students to take chances and to follow their passion, whatever that may be.

“The hardest thing to do is take chances when you can fail,” she said, but the way to alleviate that fear is to learn.

“The world opened for me when I read,” Sotomayor said. “When I found books, I found my rocket ship to the universe.”

Bender called Sotomayor a “rockstar” and praised her for her dedication to youth and ensuring that they were a part of the dedication of the judicial center. The chief justice also took time to recognize the building’s namesake, the late Gov. Ralph L. Carr, who spoke out against the internment of Japanese-Americans during World War II.

“Governor Carr was the only person of any political stature who stood up for those who were unjustly interned. He did so against overwhelming public opinion and he did so in a way that actually destroyed his political career,” Bender said. “He is somebody that we all should be inspired by.”

Guests at the dedication included people who were at Japanese internment camps in Colorado, former governors, legislators, and judges and justices from around the state.

Sotomayor2During the dedication ceremony, Sotomayor compared the judicial center with her own courthouse in Washington. Sotomayor, a lover of architecture, said courthouses embody the important work done within them.

The new center, called a 100-year building because the judicial branch plans to grow with the building, sits across from the Capitol at 2 E. 14th Ave. The $258-million building features airy spaces with natural light flowing from the atrium, and the accompanying high-rise houses approximately 1,200 judicial branch employees.

“This center will live it’s intended 100 years with dignity, but its message, like that of my court, will live through the centuries, carried by the memory of all who have walked its halls and felt its impact,” Sotomayor said.

Sara Crocker is the communications specialist for the Colorado and Denver Bar Associations and the editor of The Docket.

Colorado Court of Appeals: Trial Court’s Imposition of Fine in Excess of Damages Upheld

The Colorado Court of Appeals issued its opinion in In re Estate of Hossack: Robinson v. Hossack on Thursday, April 25, 2013.

Contempt—Fine as Remedial Sanction for Contempt.

Gladys Robinson appealed the trial court’s order denying her motion to set aside a judgment in favor of decedent’s children and against Robinson in the sum of $231,300. The order was affirmed.

Robinson lived with the decedent, Charles Erroll Hossack, at the time of his death. Following the settlement of his estate, the court ordered her to return specified items of personal property to Lori and Kirk Hossack, decedent’s children. Robinson did not comply.

In a written order issued November 14, 2007, made effective nunc pro tunc August 21, 2007, the court found Robinson in contempt because she did not return the property. Robinson did not timely appeal the contempt order and did not comply with its terms. The fines that were imposed ($100 per day and later $1,000 per day) eventually accumulated to a sum of $231,300.

The decedent’s children moved to reduce this amount to judgment in March 2008. This motion was granted in January 2010, with interest accruing at 8% annually.

Robinson moved under CRCP 60(b)(3) to set aside the judgment. She argued that the amount of the fine should have been limited to any damages the decedent’s children may have suffered. The trial court denied the motion, and Robinson appealed.

CRCP 60(b)(3) allows a court to grant a party relief from a void judgment. Robinson based her argument on cases and language in CRCP 107(d) that limited the amount of a remedial fine to the damages the adverse party suffered. Due to amendments to the rule, effective April 1, 1995, the rule now defines remedial sanctions for contempt to be “[s]anctions imposed to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform.” It also empowers the court to continue to fine a contemnor until an act ordered to be performed is performed.

Robinson also argued that any fine could only be payable to the court and not to decedent’s children. The Court found no authority for this argument. Accordingly, the order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Death Row Inmate’s Challenge to Procedure for Lethal Injection Denied

The Colorado Court of Appeals issued its opinion in Dunlap v. Colorado Department of Corrections on Thursday, April 25, 2013.

Death by Lethal Injection—Administrative Procedure Act—CRS § 17-1-111.

Nathan J. Dunlap, a death row inmate in the custody of the Colorado Department of Corrections (DOC), appealed the district court’s judgment denying his challenge to the DOC’s regulation establishing the procedure for carrying out the death penalty by lethal injection. The judgment was affirmed.

Colorado law provides for imposition of the death penalty by lethal injection. The implementation of such a sentence is entrusted to the DOC. The Executive Director promulgated Administrative Regulation 300-14 (regulation), effective June 1, 2011, “to establish procedures, consistent with Colorado statutes, governing death penalty executions.”

Dunlap was sentenced to death for murdering four people at a Chuck E. Cheese restaurant in Aurora in 1993. He filed a complaint under § 24-4-106(4) of the Administrative Procedure Act (APA), claiming that the DOC had violated the APA in promulgating this regulation. Specifically, he alleged that the DOC had failed to comply with the rule-making procedures of § 24-4-103.

Defendants moved to dismiss under CRCP 12(b)(1) and (5). The subject matter argument was based on § 17-1-111, which exempts the regulation from the procedural requirements of § 24-4-103 of the APA. The district court granted the motion to dismiss for lack of subject matter jurisdiction.

On appeal, Dunlap argued that § 17-1-111 should not apply because the Executive Director’s statutory authority to administer the death penalty is found in Title 18 of the Colorado Revised Statutes, not Title 17. The Court of Appeals disagreed. The fact that the source of the authority to carry out a death sentence is found in Title 18 is not dispositive of whether the regulation relates to a matter within Title 17.

Dunlap also argued that the phrase “placement, assignment, management, discipline, and classification of inmates” in § 17-1-111 has nothing to do with the implementation of a death sentence. The Court disagreed. In the context of Title 17, this language clearly encompasses determinations concerning the conditions under which sentences served by DOC inmates are to be carried out. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Denial of Application for Asylum Vacated

The Tenth Circuit published its opinion in Karki v. Holder on Tuesday, April 30, 2013.

Petitioner Narendra Raj Karki, a native and citizen of Nepal, petitioned for review of a decision of the Board of Immigration Appeals (BIA) affirming an order of the immigration judge (IJ) that denied his application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT).

Karki argued that the BIA and IJ erred in concluding he failed to show past persecution, a well-founded fear of future persecution, and a nexus between the alleged persecution and his political opinion. Karki had presented evidence that he was beaten badly by a group of Maoists who attacked him because of his political opinions. He also presented evidence that a vehicle in which he should have been traveling was bombed by the Maoists and that he was their intended target. The BIA concluded that the Maoists’ actions toward Karki were motivated only by their desire to extort money or recruit him and that “[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even partly because of his political opinion or a political opinion imputed to him.” The Tenth Circuit held that this conclusion was incorrect so the BIA’s decision could not be upheld on that ground.

The court also held that Karki “suffered past persecution, giving rise to a rebuttable presumption of a well-founded fear of future persecution.” The court granted Karki’s petition for review and remanded the case for determination of “whether Petitioner’s past persecution was sufficiently severe that he did not need to demonstrate a well-founded fear of future persecution, and, if not, (2) whether changed country conditions or the possibility of internal relocation are sufficient to rebut the presumption that he has a well-founded fear of future persecution.”

Karki also argued that the BIA and IJ erred in concluding he had not established his entitlement to relief under the CAT. The IJ and BIA concluded that Karki was not entitled to relief because he had not demonstrated that government officials would be likely to acquiesce in his torture upon his return to Nepal. Karki presented evidence that the Nepalese government is aware of and does not prevent frequent acts of torture committed by Maoists. Karki was not required to show the government would turn a blind eye to specific threats of torture against him in particular.

The court vacated BIA’s affirmance of the ALJ’s decision and remanded on both the petition for asylum and the CAT claim.

Tenth Circuit: Unpublished Opinions, 5/2/13

On Thursday, May 2, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Hee

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

Tenth Circuit: Unpublished Opinions, 5/1/13

On Wednesday, May 1, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Grissom v. Werholtz

United States v. Rodriguez

Ehimika v. Astrue

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

SB 13-282: Exempting Qualifying Customers with Specified Medical Conditions from Tiered Electricity Rates

On Thursday, April 18, 2013, Sen. Lucia Guzman introduced SB 13-282 – Concerning a Medical Exemption from Tiered Electricity Rates. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the public utilities commission to adopt rules by Nov. 1, 2013, to exempt customers with certain medical conditions from tiered electricity rates. Only customers who have an annual income of less than 60 percent of the median area income may qualify for this exemption. The bill establishes that fraudulent receipt of or application for this exemption constitutes theft.

If the commission fails to adopt rules by Nov. 1, 2013, the medical exemption from tiered electricity rates takes effect on that date.

The bill passed out of the Senate on 3rd Reading on April 26 and has been assigned to the Transportation & Energy Committee.

Since this summary, the bill was referred, amended, to the House Committee of the Whole.

Colorado Court of Appeals: Announcement Sheet, 5/2/13

On Thursday, May 2, 2013, the Colorado Court of Appeals issued no published opinions and 32 unpublished opinions.

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

SB 13-283: Developing Regulations for the Implementation of Amendment 64

On Monday, April 22, 2013, Sen. Cheri Jahn introduced SB 13-283 – Concerning Implementation of Amendment 64. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill permits a local government to prohibit the use of a compressed flammable gas as a solvent in residential marijuana cultivation.

The bill allows retail marijuana businesses to participate in the medical marijuana responsible vendor program.

The bill declares that it is public policy of the state that a contract related to a marijuana business is not void.

The bill creates the crime of illegal possession of retail marijuana by an underage person to mirror the same crime for alcohol.

The bill amends the offenses related to marijuana and drug paraphernalia to conform to the legal structure of amendment 64 and creates crimes for the gaps not covered by current law based the legal quantity and age limit for marijuana.

The bill authorizes the governor to designate the appropriate state agency to:

  • Create a list of banned substances in marijuana cultivation;
  • Work with a private organization to develop good cultivation and handling practices;
  • Work with a private organization to develop good laboratory practices;
  • Establish an educational oversight committee for marijuana issues;

The bill requires peace officer training to include advanced roadside impairment driving enforcement training.

The bill requires the division of criminal justice in the department of public safety to undertake or contract for a scientific study of law enforcement activities related to retail marijuana implementation.

The bill requires the department of public health and environment to create a marijuana destruction program for marijuana that cannot be legally sold by licensed businesses.

The department of public health and environment must monitor the emerging science and medical information regarding marijuana through a panel of health care experts. The panel must report its findings every two years.

Current law prohibits the use of all tobacco products on school property. The bill adds lawful retail marijuana products to the prohibition.

The bill adds marijuana to the Colorado clean indoor air act.

The bill allows the license of a child care center, children’s resident camp, cradle house, day treatment center, family child care home, foster care home, guest child care facility, homeless youth shelter, medical foster care, neighborhood youth organization, public services short-term child care facility, residential child care facility, secure residential treatment center, and specialized group facilities to be denied, suspended, or revoked if retail marijuana is consumed or cultivated onsite.

The bill prohibits the cultivation, use, or consumption of marijuana at a community residential home or regional center.

Federal law prohibits deducting certain business expenses related to the sale of marijuana to calculate the federal tax owed. The bill would permit those deductions to be used to calculate the state tax owed.

The bill creates an open container offense for marijuana to mirror the open container offense for alcohol.

On April 22, the bill was introduced and assigned to the Business, Labor, & Technology Committee; the committee amended the bill and referred it to the Appropriations Committee on April 24. The bill is on the Appropriations Committee schedule for Monday, April 29 at 7:30 a.m.

Since this summary, the bill was passed with amendments on Second Reading in the Senate.