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Archives for May 7, 2013

Report Regarding The 2013 ABA Mid-Year House Of Delegates Meeting In Dallas, Texas

Troy RackhamBy Troy Rackham

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates. The ABA House of Delegates met at the ABA’s midyear meeting held in Dallas, Texas on February 11, 2013. The agenda was relatively light. This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The House opened with a welcome speech by Senator Kay Bailey Hutchinson. Senator Hutchinson thanked the House for its leadership in maintaining the integrity of the profession and ensuring the quality of judges.

ABA President Laurel Bellows also spoke to the House. She thanked the House for the privilege of serving as President. She discussed the concept of justice as fairness. She raised important questions on how best to improve the quality of justice delivered and how to make justice more accessible. She also discussed the Gender Equity Task Force and commented on the fact that it is addressing issues of unfairness to women, including inequity of pay to women lawyers. Additionally, President Bellows discussed human trafficking and the ABA initiatives relating to the epidemic of human trafficking. Finally, President Bellows discussed promoting programs supporting law students and young lawyers, as well as reforms to legal education.

After hearing some other speeches, the House got to work on resolutions submitted to the house. First, the House passed Resolution 108, which encouraged practitioners, when appropriate, to consider limiting the scope of their representation, including the unbundling of legal services as a means of increasing access to legal services. The House also considered and approved three resolutions relating to administrative law.

Additionally, the House considered and approved Resolution 109 which supported the position that United States Bankruptcy Judges have the authority, upon the consent of all the parties to the proceeding, to hear, determine, and enter final orders and judgments in those proceedings designated as “core” within the meaning of 28 U.S.C. § 157(b) but that may not otherwise be heard and determined by a non-Article III tribunal absent consent. The House voted to revise the resolution and later approved it.

The House considered nine resolutions relating to issues of criminal justice. Those were as follows:

  • Resolution 104A – Indigent Defense. The Criminal Justice Section urged the adoption of Resolution 104A, as revised, which urged Congress to establish an independent federally funded Center for Indigent Defense Services for the purpose of assisting state, local, tribal and territorial governments in carrying out their constitutional obligation to provide effective assistance of counsel for the defense of the indigent accused in criminal, juvenile and civil commitment proceedings. The House adopted the resolution as revised.
  • Resolution 104C – Prohibiting Retaliatory Discharge Against Public Defenders. The Criminal Justice Section also urged the House to adopt Resolution 104C. Resolution 104C urged state and local governments to enact legislation to prohibit the retaliatory discharge of a Chief Public Defender or other head of an indigent defense services provider because of his or her good faith effort to control acceptance of more clients than the office can competently and diligently represent. The House adopted the resolution.
  • Resolution 104D – Increased Funding for Prosecutor Training. The Criminal Justice Section moved the House to adopt Resolution 104D, which urged the federal government to restore, maintain, and, where appropriate, increase funding to organizations which provide training to state and local prosecutors, to better promote justice, increase public safety, and prevent wrongful convictions. The House approved the resolution.
  • Resolution 104E – Investigation of Immigration Status of the Accused. Fourth, the Criminal Justice Section asked the House to adopt Resolution 104E, which urged courts to ensure that defense counsel inquires and investigates a juvenile defendant’s immigration status and informs the juvenile about any possible collateral consequences that may flow from different dispositions of the case. The resolution also sought to minimize adverse immigration consequences. Several revisions were made to the resolution and the House adopted it, as revised.
  • Resolution 104F – Victims of Human Trafficking. Additionally, the Criminal Justice Section urged the House to adopt Resolution 104F, as revised. Resolution 104F urged governments to enact laws and regulations and to develop policies that assure that once an individual has been identified as an adult or minor victim of human trafficking, that individual should not be subjected to arrest, prosecution or punishment for crimes related to their prostitution or other non-violent crimes that are a direct result of their status as an adult or minor victim of human trafficking. The House approved the resolution as revised in the House.
  • Resolution 104G – Affirmative Defenses for Victims of Human Trafficking. Consistent with President Bellows’ focus on Human Trafficking, the Criminal Justice Section also moved the House to adopt Resolution 104G, which urged governments to enact legislation allowing adult or minor human trafficking victims charged with prostitution related offenses or other non-violent offenses to assert an affirmative defense of being a human trafficking victim. The House revised the resolution and later adopted it.
  • Resolution 104H – Vacating Convictions for Victims of Human Trafficking. The Criminal Justice Section further moved the House to adopt Resolution 104H, which urged governments to aid victims of human trafficking by enacting and enforcing laws and policies that permit adult or minor victims of human trafficking to seek to vacate their criminal convictions for offenses related to their prostitution or other non-violent offenses that are a direct result of their trafficking victimization. The House approved the resolution as revised.
  • Resolution 104I – Training Relating to Human Trafficking. As the final human trafficking resolution, the Criminal Justice Section and the Commission on Domestic and Sexual Violence jointly urged the House to adopt Resolution 104I, which was revised. Resolution 104I urged bar associations to work with judges, lawyers, and other professionals with subject matter expertise in human trafficking, to develop and implement training programs for judges, prosecutors, defense counsel, law enforcement officers, immigration officials, civil attorneys, and other investigators that will enable them to identify adult and minor victims of human trafficking and enable them to direct victims and their families to agencies that offer social and legal services and benefits designed to assist adult and minor victims of human trafficking. The House approved Resolution 104I as revised.
  • Resolution 104J – Model Charge for Grand Juries. Finally, the Criminal Justice Section moved the House to adopt Resolution 104J, which urged the Judicial Conference of the United States to amend the Model Grand Jury Charge to clarify that the Grand Jury should be instructed to vote separately on each defendant. After hearing the arguments in support of the resolution, the House passed it without revision.

Additionally, the House considered several resolutions proposed by the Ethics 20/20 Commission. The resolutions largely sought amendments to the Model Rules of Professional Conduct, or other Model Rules, to address the realities of increasing lawyer mobility. The Ethics 20/20 Commission resolutions are discussed in turn.

First, the House approved revised Resolution 107A, which approved proposed amendments to Model Rule of Professional Conduct 5.5(b) and the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to allow foreign lawyers to serve as in-house counsel in the United States, as long as the foreign lawyers not advise on United States law except in consultation with a U.S.-licensed lawyer. There was a variety of interesting debate and discussion on this resolution. Ultimately, the House passed Resolution 107 as revised.

Second, the Ethics 20/20 Commission urged the House to adopt Resolution 107B. Resolution 107B proposed amendments to the ABA Model Rule for Registration of In-House Counsel so that the model rule would permit foreign lawyers to serve as in-house counsel in the United States with some restrictions. The House revised the resolution and adopted it.

Third, the House considered Resolution 107C, which proposed amendments to the ABA Model Rule on Pro Hac Vice Admission. The amendments were designed to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in courts in the United States. There was some interesting discussion prior to the House, and during the House debates, on the resolution. Ultimately, after an amendment, the House adopted the resolution.

Finally, the Ethics 20/20 Commission urged the House to adopt Resolution 107D, which proposed amendments to Model Rule of Professional Conduct 8.5. Rule 8.5 relates to choice of law applicable to conduct standards and lawyer discipline. The proposed amendments were designed to address common choice of law problems that are more frequently occurring in the context of conflicts of interest. The House approved the resolution.

The House considered a number of resolutions in addition to the nine resolutions proposed by the Criminal Justice Section and the four resolutions urged by the Commission on Ethics 20/20. Those are described below:

  • Resolution 10A – Court Funding Crisis. The New York State Bar Association moved the House to adopt Resolution 10A, which urged federal elected officials to adequately fund the federal courts and the Legal Services Corporation as they negotiate deficit reduction with the imminent threat of the implementation of sequestration if they fail. The House approved the resolution.
  • Resolution 101A – Patentable Subject Matter. The Section of Intellectual Property Law moved the House to adopt Resolution 101A, which was revised. Revised Resolution 101A provided that the ABA would support the principle that laws of nature, physical phenomena, and abstract ideas are not eligible for patenting as a process under 35 U.S.C. §101, even if they had been previously unknown or unrecognized. The House approved the resolution as revised.
  • Resolution 101B – Standards for Finding Direct Infringement. Additionally, the Section of Intellectual Property Law urged the House to adopt Resolution 101B, which supported clarifying the standards for finding direct infringement under 35 U.S.C. § 271(a) for a patent directed to a multiple-step process in the fact situation where separate entities collectively, but not individually, perform the required steps of the patented process. After a revision, the House approved the resolution.
  • Resolution 106 – Principles for Jury Trials. As its one resolution, the Commission on the American Jury Project asked the House to adopt Resolution 106, which proposed amendments to the 2005 ABA Principles for Juries and Jury Trials. The amendments were to Principles 1(C) through (F), 6(C), 10(C) and 11(A) of those Principles. After an interesting discussion in support of the resolution, the House approved the resolution.
  • Resolution 100 – Medicare Reimbursements. The ABA’s Standing Committee on Medical Professional Liability moved the House to adopt Resolution 100. Resolution 100 supports timely and efficient resolution of requests from a claimant or applicable plan for conditional payment reimbursement amounts where Medicare has a right to reimbursement from a recovery by way of settlement, judgment or award. The resolution also urged Congress and the Department of Health and Human Services to establish reasonable time limits and procedures for responding to such requests. The House approved the resolution.

Finally, the House of Delegates also considered a number of uniform acts proposed by the National Conference of Commissioners on Uniform State Laws. It is fairly typical for the House to consider proposed uniform laws at its meetings. The three uniform laws that the House considered were the Uniform Asset Freezing Orders Act, the Uniform Deployed Parents Custody and Visitation Act, and the Uniform Premarital and Marital Agreements Act. The House approved all three resolutions.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in Dallas. The annual meeting this year will be in August 2013 in San Francisco. I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

Troy Rackham defends lawyers, hospitals, nursing homes, long term care facilities and other health care organizations in a wide variety of cases and claims. He regularly advises legal professionals on ethics, malpractice and professional liability issues. Mr. Rackham co-wrote a treatise on Colorado Legal Malpractice litigation, which is updated annually. He has orally argued and prepared briefs in dozens of appellate cases, most of which involved claims against lawyers, hospitals, physicians, or health care systems. Mr. Rackham is a member of the American, Colorado, and Denver Bar Associations, and he is a member of the CBA Ethics Committee and the ABA House of Delegates.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Bills Regarding Job Protection, Authorization for Foreign Investments, Electric Vehicle Charging Stations, and More Signed by Governor Hickenlooper

As the 2013 legislative session winds down, bills continue to reach Governor Hickenlooper’s desk for review and signature. Since January 31, 2013, the governor has signed 169 bills.

Governor Hickenlooper signed the “Job Protection and Civil Rights Enforcement Act,” HB 13-1136, on Monday, May 6, 2013. HB 13-1136 – Concerning the Creation of Remedies in Employment Discrimination Cases Brought Under State Law, by Reps. Claire Levy and Joe Salazar and Sens. Morgan Carroll and Lucia Guzman, establishes provisions for complaining parties who have exhausted administrative remedies to bring actions in state court. It also allows claims to be brought by employees of companies with fewer than 15 employees, which are exempt under Federal anti-discrimination provisions.

On May 5, the governor signed one bill, SB 13-176 – Concerning Authorization for the State Treasurer to Invest State Moneys in Debt Obligations Backed By the Full Faith and Credit of the State of Israel. This bill was sponsored by Sens. Mark Scheffel and Morgan Carroll and Reps. Justin Everett and Angela Williams, and it authorizes the state treasurer to invest state moneys in Israeli bonds.

The governor signed 10 bills on Friday, May 3, 2013. Three of the ten bills signed are summarized here.

  • SB 13-126 – Concerning the Removal of Unreasonable Restrictions on the Ability of the Owner of an Electric Vehicle to Access Charging Facilities, by Sen. Lucia Guzman and Rep. Crisanta Duran. The bill requires landlords and common interest communities to allow unit owners to install electric vehicle charging stations on their own property.
  • HB 13-1167 – Concerning the Collection of Business Information by the Secretary of State, by Reps. Brittany Pettersen and Crisanta Duran and Sen. Larry Crowder. The bill requires the Secretary of State to request certain demographic information from business owners, which will be available to the public on the Secretary of State website. The demographic information includes gender, race, veteran status, disability status, and NAICS code, and submission of the information is voluntary.
  • HB 13-1222 – Concerning the Expansion of the Group of Family Members for whom Colorado Employees are Entitled to Take Leave from Work under the “Family and Medical Leave Act of 1993″, by Rep. Cherylin Peniston and Sen. Jessie Ulibarri. The bill allows employees to take leave under FMLA to care for their partners in civil unions.

On April 29, 2013, the governor signed six bills. These included the long appropriations bill, three Joint Budget Committee bills regarding the General Fund, and a bill to allow students who complete high school in Colorado to qualify for in-state tuition classification (SB 13-033Concerning In-State Classification at Institutions of Higher Education for Students who Complete High School in Colorado, by Sens. Angela Giron and Mike Johnston and Reps. Crisanta Duran and Angela Williams.) Governor Hickenlooper also signed the budget bill, SB 13-230, on April 29.

On April 26, 2013, Governor Hickenlooper signed 16 bills. Five of these are summarized here.

  • HB 13-1025 Concerning an Increase in the Amount of the Authorized Deductible for Workers’ Compensation Insurance Policies, by Rep. Spencer Swalm and Sen. Cheri Jahn. The bill increases the allowable deductible for employers’ workers’ compensation insurance policies.
  • HB 13-1123 – Concerning the Right of a Person to Waive Confidentiality Requirements Protecting Personal Work Information Obtained by the Department of Labor and Employment for Unemployment Benefit Claims to Permit the Department to Forward Certain Information to Potential Employers, by Rep. Tony Exum and Sen. Jim Kerr. The bill allows the Department of Labor and Employment to offer job seekers the opportunity to waive confidentiality so that their personal information may be made available to bona fide employers seeking employees.
  • HB 13-1258 – Concerning Local Government Involvement with Federal Immigration Issues, by Rep. Joe Salazar and Sens. Irene Aguilar and Morgan Carroll. The bill repeals C.R.S. Title 29, Article 29, which required local law enforcement officers to report any suspected illegal immigrants to federal immigration officials.
  • SB 13-048 – Concerning the Use of Highway User Tax Fund Moneys Allocated to Local Governments for Multimodal Transportation Infrastructure, by Sen. Nancy Todd and Reps. Max Tyler and Jeanne Labuda. The bill allows counties and municipalities to spend moneys received from the Highway User Tax Fund on transit-related projects.
  • SB 13-070 – Concerning the Purchase of Vehicles that Operate on Alternative Fuels for the State Motor Vehicle Fleet System, by Sen. Gail Schwartz and Reps. Ray Scott and Max Tyler. The bill requires the Department of Personnel and Administration to report on the number of alternative fuel vehicles purchased, the use of alternative fuel, and a plan to develop the infrastructure necessary to utilize more alternative fuel vehicles.

For a complete list of legislation signed into law by the governor in 2013, click here.

e-Legislative Report, 5/6/13

CBA Director of Legislative Relations Michael Valdez issued his weekly e-Legislative Report on May 6, 2013. In this edition, he gives a day-by-day report of what happened at the legislature during the week of April 29. He also summarizes a few more late bills of interest, and notes that the CBA Legislative Policy Committee did not meet on May 3.

At the Capitol

Boxscores

Monday, April 29

  • The House adopted the conference committee report for HB 13-1058. Concerning guidelines for the determination of spousal maintenance (advisory guideline formula to determine spousal maintenance). The adoption of the conference committee report signals the end of the legislative journey for the bill; the bill now heads to Gov. John Hickenlooper for action. The final Senate version of the bill is what the Governor will see when the bill gets to his desk.
  • The House adopted the conference committee report for HB 13-1204. Concerning the “Uniform Premarital and Marital Agreements Act.” The conference committee report made a conforming amendment to the act to address changes made in SB 13-11. Civil Unions.
  • The House adopted the conference committee report for HB 13-1200. Concerning the “Uniform Deployed Parents Custody and Visitation Act.” The conference committee report adopted several important amendments suggested by the Family Law Section.
  • The House adopted HB 13-1317. Concerning the recommendations made in the public process for the purpose of implementing retail marijuana legalized by section 16 of article XVIII of the Colorado constitution, and in connection therewith, making an appropriation on 3rd Reading by a vote of 35 yes, 29, no, and 1 excused.
  • The Senate approved 13-1246. Concerning modifications in connection with current property tax exemptions for nonprofit organizations on 3rd and final reading by a vote of 35–0.
  • The Senate approved 13-255. Concerning child fatality review teams, and, in connection therewith, increasing the capacity and resources, clarifying the responsibilities and processes of state and local child fatality review teams in the departments of public health and environment and human services, and making an appropriation on a 22–13 vote.

Tuesday, April 30

  • The Senate adopted HB 1163. Concerning payment for medical costs associated with obtaining a medical forensic examination for victims of sexual offenses, and, in connection therewith, making an appropriation on 3rd Reading on a 35–0 vote.
  • The Senate approved HB 12-1276. Concerning limitations on the actions a unit owners’ association under the “Colorado Common Interest Ownership Act” may take against a unit owner with respect to the collection of debt owed to the unit owners’ association by a 35–0 vote.
  • The Senate passed 13-1142. Concerning reforms to the “Urban and Rural Enterprise Zone Act,” and, in connection therewith, making an appropriation on a vote of 21–14.
  • The Senate adopted HB 13-1156. Concerning creation of an adult diversion program, and, in connection therewith, making an appropriation on a 35–0 vote.
  • The Senate gave final approval to HB 13-1138. Concerning benefit corporations, and, in connection therewith, making an appropriation on a party line vote 20–15. The bill was sent back to the House for consideration of the Senate amendments.
  • The Senate adopted HB 13-1134. Concerning unit owners’ associations under the “Colorado Common Interest Ownership Act” on a party line vote of 20–15.
  • The Senate unanimously approved SB 13-271. Concerning funding for the address confidentiality program on 3rd and final reading.
  • With a smidgen of bipartisan support, the Senate gave final approval of HB 13-1266. Concerning the alignment of state health insurance laws with the requirements of the federal “Patient Protection and Affordable Care Act” on a vote of 21–14.
  • The Senate adopted on 3rd and final Reading HB 13-1082. Concerning juvenile delinquency records on a 35–0 vote.
  • The House gave final approval of SB 13-252. Concerning measures to increase Colorado’s renewable energy standard so as to encourage the deployment of methane capture technologies on a vote of 37 yes, 27 no, and 1 excused.
  • The House adopted HB 13-1318. Concerning the recommendations made in the public process for the purpose of implementing certain state taxes on retail marijuana legalized by section 16 of article XVIII of the Colorado constitution, and, in connection therewith, making an appropriation on a vote of 37 yes, 27 no, and 1 excused.
  • The House approved HB 13-1306. Concerning creating a task force to consider persons who pose a threat of harm to themselves or others on 3rd and final reading; the vote: 35 yes, 29 no, and 1 excused.

Wednesday, May 1

  • The House adopted—34 yes, 28 no, and one excused—HB 13-1316. Concerning the Colorado oil and gas conservation commission’s adoption of uniform statewide groundwater sampling rules, and, in connection therewith, making an appropriation.
  • The House approved SB 13-47. Concerning protections for youth in foster care against identity theft, and, in connection therewith, making an appropriation on a vote of 63 yes, 1 no, and one excused.
  • The House approved 13-246. Concerning creation of a task force to study discovery costs in criminal case by a vote of 64 yes, 1 no, and 1 excused.
  • The House adopted HB 13-111. Concerning abuse of at-risk adults, and, in connection therewith, making an appropriation by a vote of 56 yes, 8 no, and 1 absent.
  • The House voted to concur with the amendments added by the Senate to HB 13-1138. Concerning benefit corporations, and, in connection therewith, making an appropriation. The Senate amendments to the bill represent a significant compromise on the bill. The motion to concur with Senate amendments was passed on a vote of 37 yes, 27 no, and 1 excused.
  • The House voted to concur with the amendments added by the Senate to HB 13-1276. Concerning limitations on the actions a unit owners’ association under the “Colorado Common Interest Ownership Act” may take against a unit owner with respect to the collection of debt owed to the unit owners’ association; the vote: 47 yes, 17 no, and 1 excused.
  • The House voted to concur with the amendments added by the Senate to HB 13-1156. Concerning creation of an adult diversion program, and, in connection therewith, making an appropriation on a vote of 61 yes, 3 no, and 1 excused.
  • The Senate gave its final approval to 13-250. Concerning changes to sentencing of persons convicted of drug crimes, and, in connection therewith, making an appropriation. The final vote was 34–1.
  • The Senate gave final approval to SB 13-244. Concerning a task force to study substance abuse. The final vote was 34–1.

Thursday, May 2

  • The Senate adopted HB 13-1230. Concerning compensation for persons who are exonerated of their crimes after a period of incarceration, and, in connection therewith, making an appropriation on a vote 32 yes, 0 no, and 3 excused.
  • The Senate gave final approval to HB 13-1240. Concerning penalties for persistent drunk drivers, and, in connection therewith, making an appropriation on a vote 32 yes, 0 no, and 3 excused.
  • Adopted on a vote of 33 yes, 1, no, and 1 excused, the Senate gave final support for HB 13-1160. Concerning criminal theft, and, in connection therewith, reducing an appropriation.
  • The Senate gave final approval of SB 13-283. Concerning implementation of amendment 64, and, in connection therewith, making and reducing an appropriation. The vote was 32 yes, 2, no, and 1 excused.
  • The Senate voted to concur with the House amendments to SB 13-111. Concerning abuse of at-risk adults, and, in connection therewith, making an appropriation (Mandatory reporting of elder abuse). The vote to concur was 24 yes, 10 no, and 1 excused.
  • The Senate voted to concur with the House amendments to SB 13-147. Concerning protections for youth in foster care against identity theft, and, in connection therewith, making an appropriation. The vote to concur was 34 yes, 0 no, and 1 excused.

Friday, May 3

  • The House gave final approval to SB 13-262. Concerning the exemption of representative services of enrolled agents from the definition of debt management services. The vote was unanimous—65-0.
  • On 3rd and final reading, the House adopted HB 13-1323. Concerning requiring the department of corrections to obtain clarification if a court-issued mittimus omits instruction concerning whether a defendant’s sentences are to be served consecutively or concurrently on a vote of 65–0.
  • The Senate gave final approval to HB 13-1284, Concerning documents that can be filed regarding security interests under the “Uniform Commercial Code.”

The full e-Legislative Report, including summaries of late bills of interest, can be found here.

Tenth Circuit: District Court Did Not Err in Denying Deputy’s, Sheriff’s and Warden’s Motion to Dismiss § 1983 Action Based on Qualified Immunity

The Tenth Circuit published its opinion in Wilson v. Montano on Friday,  May 3, 2013.

On December 18, 2010, Deputy Montano arrested Michael Wilson without a warrant. Montano asked Deputy Fred Torres to transport Wilson to the Valencia County Detention Center (“VCDC”). Prior to booking Wilson into the VCDC, Montano prepared a criminal complaint listing the charge against Wilson as a misdemeanor offense. Neither Montano nor Torres ever filed the criminal complaint in a court with jurisdiction or brought Wilson before a judicial officer for a probable cause determination during the time he was held at the VCDC. Eleven days after his arrest, Wilson was released from the VCDC by order of a magistrate judge. In the order, the magistrate noted no complaint had been filed. On January 4, 2010, after Wilson was released, Montano filed the misdemeanor criminal charge. The district attorney’s office dismissed the charge due to insufficient evidence.

Wilson brought suit under 42 U.S.C. § 1983. Wilson alleged the deputies deliberately detained him without filing a criminal complaint or bringing him before a judicial officer for a probable cause determination. He further asserted that, prior to his detention, there were numerous incidents in which VCDC held individuals without filing criminal charges or otherwise allowing them to appear before a magistrate judge. Wilson alleged his detention was the result of a policy established by Warden Chavez in which individuals were routinely held without the filing of criminal charges. Wilson made substantially similar claims against Sheriff Rivera.

Defendants jointly filed a motion to dismiss Wilson’s claims, arguing Wilson’s complaint failed to state a claim against any of the defendants in their individual capacities and each of the defendants was entitled to qualified immunity. The district court denied the motion, and this appeal followed.

To survive a motion to dismiss based on qualified immunity, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.  A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This court requires a plaintiff to allege sufficient facts that show—when taken as true—the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.

Appellants do not dispute that Wilson had a Fourth Amendment right to a prompt probable cause determination, and that such a right was clearly established at the time of Wilson’s detention.  Appellants argue they are entitled to qualified immunity because there is no clearly established law delineating which of them had the obligation to provide Wilson with a probable cause hearing.

The Tenth Circuit rejected this argument and examined the allegations in the complaint as to each individual appellant to determine whether a plausible claim for relief was stated. The Court considered  New Mexico state law insofar as it bore on the scope of each appellant’s responsibility to ensure a prompt probable cause determination.

Wilson’s complaint lacked sufficient allegations to state a plausible claim that Torres was personally involved in the violation of his right to a prompt probable cause determination. The district court therefore erred in denying the motion to dismiss as to Torres. The complaint alleged sufficient personal involvement on Montano’s part to state a plausible claim for under § 1983, and the district court correctly denied appellants’ motion to dismiss as to Montano.

New Mexico law charged Sheriff Rivera with the responsibility of running the VCDC and ensuring arrestees received a prompt probable cause determination. Under New Mexico law, both Warden Chavez and Sheriff Rivera were responsible for the policies or customs that operated and were enforced by their subordinates and for any failure to adequately train their subordinates.

The complaint alleged Warden Chavez established a policy or custom of holding citizens without pending criminal charges until the court filed orders of release sua sponte. The complaint further alleged Warden Chavez’s policy of holding citizens without court orders caused the violation of Wilson’s Fourth Amendment right to a prompt probable cause determination. That is, because Warden Chavez failed to require the filing of written complaints, detainees, including Wilson, were held at the VCDC without receiving prompt probable cause determinations. The complaint also alleged Warden Chavez inappropriately trained his employees, which led to the violation of Wilson’s right to a prompt probable cause determination. These allegations, taken as true, sufficiently established Warden Chavez promulgated policies that caused the constitutional harm of which Wilson complains, i.e., his prolonged detention without a probable cause hearing.

The complaint also alleged sufficient facts to establish Warden Chavez acted with the requisite mental state. To establish a violation of § 1983 by a defendant-supervisor, the plaintiff must establish, at minimum, a deliberate and intentional act on the part of the supervisor to violate the plaintiff’s legal rights. The complaint alleged Warden Chavez acted with deliberate indifference to routine constitutional violations occurring at the VCDC. This allegation is supported by Wilson’s assertions that there were numerous prior occasions in which individuals were subject to prolonged warrantless detention.

The allegations in the complaint as to Sheriff Rivera are similar to those against Warden Chavez. As with Warden Chavez, these allegations, if proven, are sufficient to establish Sheriff Rivera’s individual liability for Wilson’s unconstitutional detention, and the district court did not err in denying the motion to dismiss as to Sheriff Rivera.

The district court erred in denying the motion to dismiss as to Torres. The district court correctly denied the motion to dismiss as to Montano, Chavez, and Rivera.

AFFIRMED in part and REVERSED in part.

Tenth Circuit: District Court Lacked Jurisdiction to Modify Defendant’s Sentence Under Fed. R. Crim. P. 35(a)

The Tenth Circuit published its opinion in United States v. Luna-Acosta on Friday, May 3, 2013.

In August 2011, the government filed an information charging Adrian Luna-Acosta with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b). He entered a plea agreement under which the government agreed to a downward departure of his offense level for the purposes of sentencing. The resulting range was thirty-three to forty-one months’ imprisonment. Luna-Acosta contended that when the government offered the plea agreement, it told him that it anticipated the range to be twelve to eighteen months’ imprisonment.

Defense counsel raised this issue at sentencing, but the court stated it nevertheless would sentence Luna-Acosta to the higher range. Defense counsel also raised the issue that new sentencing guidelines would take effect on November 1, 2011, regarding supervised release on this offense. The court agreed and continued the hearing. At the next sentencing hearing on November 16, the court sentenced Luna-Acosta to the lower range of twelve months imprisonment.

More than five months later, the district court reversed course. Without warning to either party, the district court entered a written judgment imposing a sentence of thirty-three months’ imprisonment without supervised release. The court explained that it lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. Luna-Acosta appealed.

On appeal, Luna-Acosta argued that the district court lacked jurisdiction under Fed. R. Crim. P 35(a) to modify his twelve-month sentence.

Under Fed. R. Crim. P. 35(a), a district court “may correct a sentence that resulted from arithmetical, technical, or other clear error” “[w]ithin 14 days after sentencing.” The rule defines “sentencing” as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c). This 14-day time limit is jurisdictional.

The pivotal issue on appeal was when the “oral announcement” of the sentence occurred for purposes of Rule 35. Once the oral announcement of the sentence becomes final, it can only be modified within the 14 days following sentencing, and even then only in limited circumstances.

In this case, these “sentencings” resulted in three different outcomes: on October 19, 2011 (open court): 33 months’ imprisonment, 2 years’ supervised release; on November 16, 2011 (open court): 12 months’ imprisonment, no supervised release; and on April 26, 2012 (written judgment): 33 months’ imprisonment, no supervised release.

The Tenth Circuit adopted the standard of the Fifth Circuit, where a sentence is not final—and Rule 35(a) does not apply—when there is “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010).

In Meza, the Fifth Circuit concluded that the district court’s change of a sentence immediately after it first announced a sentence was not a modification that must comply with Rule 35(a). The court refused to impose the “draconian rule” that “the district court’s initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to sentence criminal defendants and immediately vests such jurisdiction with this court.”

Applying this “formal break” standard to the case at bar, the Tenth Circuit concluded that the sentence was not final until the end of the second hearing held on November 16, 2011. Most important was the very fact the district court continued the first hearing on October 19 without finalizing all of the terms of the sentence.

Because the sentence was not final for the purposes of Fed. R. Crim. P. 35(a) at the end of the first hearing on October 19, the district court had jurisdiction to impose the twelve-month sentence at the second hearing on November 16. However, the district court lacked jurisdiction under Rule 35(a) when it altered that twelve-month sentence of imprisonment in its written judgment on April 26.

Accordingly, the Tenth Circuit REVERSED and REMANDED with instructions to vacate the thirty-three month sentence and file a written judgment consistent with the orally announced sentence of twelve months.