August 17, 2018

Archives for June 2013

Supreme Court Ruling on DOMA Raises More Questions Than it Answers for Colorado Families

By Ann Gushurst and Kristi Wells

On Wednesday, June 26, 2013, the Supreme Court struck down, in a 5-4 decision, Section 3 of the Federal Defense of Marriage Act, known as DOMA, which act defined and recognized marriages only as contracted between a man and a woman.  It did so on the basis that Section 3 of DOMA created a two tiered marriage system under Federal law, under which valid same-sex marriages were denied validity under Federal laws.

The Obama Administration released the following statement after the Supreme Court announced its ruling:

This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.

This ruling will have interesting repercussions for states like Colorado, which has its own DOMA provision in the Colorado Constitution, although this ruling does not strictly challenge the constitutionality of DOMA in states that have state DOMA provisions.

In Colorado, we have the opposite problem to the DOMA case addressed by the Supreme Court in that Colorado recognizes complete state rights for same sex relationships as civil unions, but denies them the status of marriage.  By doing this, Colorado effectively denies those in same sex relationships from enjoying the benefits of marriage under federal statutes.  The question remains—is Colorado’s similar DOMA provision equally unconstitutional and how (and when) will that issue be addressed?

Until that issue is resolved, Colorado will be the Petri dish for issues that remain unaddressed by this Supreme Court decision.  For example, the Colorado statute recognizing civil unions specifically grants those in civil unions all of the rights of marriage, except that the right to file a joint income tax return is not permitted until federal law is changed to allow those who are not considered legally married to file joint income tax returns.

The Supreme Court’s decision regarding Section 3 of DOMA does nothing to require the federal government to recognize civil unions as equivalent to marriages.  Thus, couples in Colorado civil unions will continue to experience the exact disparate tax treatment that the Supreme Court struck down in its DOMA ruling.  And this disparate treatment will continue in Colorado until the Colorado Constitution is amended to repeal Colorado’s state DOMA provision, or until a federal statute is enacted which treats state-recognized civil unions the same as state-recognized marriages.

Further, the decision did nothing to address Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed under the laws of other states.   While Section 2 still stands, Colorado can continue to refuse to recognize the same-sex marriages performed in other states, transforming the status of those couples who come to Colorado into civil unions.

This results in an anomaly for federal tax purposes.  The same-sex couple who marries in Massachusetts will be eligible to file a joint federal tax return as long as they continued to live in that state.  However, if the couple subsequently moves to Colorado and their marriage is no longer recognized, do they suddenly lose the right to file a joint federal tax return?

Perhaps most critical, this decision does not begin to unravel the complex issues that arise when same-sex couples have children.  As long as the non-biological parent formally adopts a child, these issues are fairly straightforward.  However, Colorado recognizes presumptions in favor of both a biological parent and a psychological parent in cases regarding allocation of parental responsibilities.  Thus, where a woman in a Colorado civil union becomes impregnated by a third party who is not involved in raising the child thereafter, Colorado Courts are still required to give weight to the biological connection between the child and the sperm donor when making decisions regarding who should have parenting time with that child.  However, a child born to a woman in a traditional marriage is presumed to be the child of that marriage.

For those fighting for equality, this decision is a powerful (yet mixed) step forward.  The other side of the equality coin is, of course, that with the ability to become legally married comes the need to legally end the marriage if a relationship ends.  As we move forward, divorce lawyers in Colorado now must begin the process of figuring out how to help these individuals deal with the questions left unanswered by today’s decision.

 

Ann Gushurst, Esq. has been practicing exclusively in family law for most of her law career. Her practice with Gutterman Griffiths PC in Littleton is currently a mixture of litigation, collaboration, and mediation. She is also responsible for the firm’s research and appellate work. Ms. Gushurst is the editor of the CBA Family Law Section newsletter, is on the section’s Executive Council, and is one of the three chairs of the Family Law Ethics Task Force.

Kristi Anderson Wells, Esq. has over 15 years of experience in the areas of taxation, benefits and executive compensation law which she brings to the practice of family law. Kristi’s practice focuses on the division of executive compensation, retirement assets and stock options in dissolution. In addition to her law degree, Kristi has a Master’s degree in Taxation (LL.M.) from the University of Washington School of Law.

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.

Community Action Network Participates in a Day of Service in Honor of Sarah Rector

By Kate Schuster

On Tuesday, June 18, the Denver Bar Association’s Community Action Network held a day of service in honor of Sarah Rector, a committee member who passed away suddenly last March. CAN members volunteered at two local non-profit organizations, Project Angel Heart and Metro CareRing, and encouraged the entire DBA community to volunteer during the month of June in Sarah’s honor.

At Project Angel Heart volunteers Kris Reed, Arax Corn, and Sarah Millard, helped prepare meals for individuals facing life threatening illnesses.  At Metro CareRing, the nonprofit that benefits from CAN’s annual Roll Out the Barrels Food Drive, volunteers Kasi Schuelke and JoAnne Zboyan provided personal shopping services for families and individuals using Metro CareRing’s services and volunteers Molly McNab, Trent Ongert, Patrick Thiessen, and Robin Perkins helped sort and stock donations in the pantry.

We miss Sarah greatly and the CAN committee is dedicated to honoring her memory through service to Denver at large, which Sarah was passionate about.  If you have any questions or would like to volunteer with CAN please contact Robin Perkins at robineperkins@gmail.com or Kate Schuster at kschuster@cobar.org.

Colorado Court of Appeals: Trial Court Violated Defendant’s Fifth Amendment Right Against Self-Incrimination by Requiring Offense-Specific Treatment

The Colorado Court of Appeals issued its opinion in People v. Ruch on Thursday, June 20, 2013.

Probation—Revocation—Stalking—Right to Counsel—Fifth Amendment—Counseling—Hearsay—Notice.

Defendant Carl Daniel Ruch appealed the trial court’s judgment revoking his probation. The case was remanded with directions.

In 2007, Ruch was charged with sexual assault on a child by one in a position of trust and harassment—stalking (emotional distress). Following a jury trial, Ruch was acquitted of the sexual assault charge, but was found guilty of stalking. The trial court sentenced Ruch to six years of intensive supervised probation. In January 2010, Ruch’s probation officer filed a special report in the trial court requesting that Ruch be ordered to comply with additional terms of probation typically imposed on sex offenders, which was granted by the court against Ruch’s objection and assertion of his Fifth Amendment rights.

On appeal, Ruch asserted that the trial court violated his right to counsel when it required him to choose between continuing with his appointed counsel or proceeding pro seto renew his request for a continuance to allow him to seek private counsel. The trial court did not abuse its discretion by denying Ruch’s request for a continuance after previously allowing five continuances for Ruch to find private counsel and no evidence to support Ruch’s ineffective assistance of counsel allegations against his public defender.

Ruch also asserted that the trial court erred in finding that he had changed residences without the approval of his probation officer. Hearsay evidence is admissible in probation revocation proceedings; however, it is only admissible if the defendant has a fair hearing and is afforded the opportunity to rebut the hearsay evidence. Here, the amended probation revocation complaint stated that Ruch’s roommate was the declarant of the incriminating information. Accordingly, Ruch had notice of the declarant’s identity and the content of the hearsay. Thus, Ruch had sufficient information to allow him to effectively rebut the hearsay testimony through cross-examination or presentation of his own witnesses. Therefore, the triple hearsay evidence was sufficient to prove, by a preponderance of the evidence, that Ruch changed residences without obtaining permission from his probation officer.

Ruch further asserted that the trial court erred by revoking his probation based on his refusal to attend offense-specific treatment (counseling). By requiring Ruch to attend counseling while his appeal was pending, the trial court violated his Fifth Amendment right against self-incrimination, which he expressly invoked and did not waive. The trial court could have properly revoked Ruch’s probation based on his failure to (1) contact his probation officer at the times and places specified by the officer, (2) receive approval from his probation officer before changing his residence, and (3) sign releases of information to allow his probation officer to communicate with members of the community supervision team. However, the record is not clear whether the trial court would have revoked Ruch’s probation and imposed the same sentence based on these three violations alone. Accordingly, the case was remanded for further findings.

Summary and full case available here.

Colorado Court of Appeals: Defendant’s Conviction Vacated Because Prosecution Charged Crime Under Wrong Subsection of Statute

The Colorado Court of Appeals issued its opinion in People v. Halbert on Thursday, June 20, 2013.

Sex Offender—Failure to Register—CRS § 18-3-412.5(1)(a)—Change of Registration.

Defendant appealed the jury’s verdict finding him guilty of failing to register as a sex offender—second or subsequent offense. He also appealed his sentence. The conviction and sentence were vacated.

In 1992, defendant was convicted of sexual assault on a child by a person in a position of trust. He was released from prison in 2003. Before this case was filed in 2009, he had been convicted four times of the felony of failing to register as a sex offender. This case was filed because defendant was evicted from the Thornton house where he was staying and he failed to register elsewhere.

Defendant argued that the court erred in allowing his conviction to stand under CRS § 18-3-412.5(1)(a) and (2). The evidence showed that defendant initially registered as required in Adams County. Although there was evidence that he was kicked out of the house in Thornton, and that he may have continued to live there surreptitiously, or that he may have lived in Parker or Lakewood, those acts did not fall within the ambit of subsection 412.5(1)(a). Contrary to the prosecution’s argument, the duties to which it points correspond to differentsubsections of 412.5(1). Defendant’s conduct of failing to change his registration to a new address after he was kicked out of the Thornton house is made a crime by subsection 412.5(1)(g), and the duty that corresponds to this crime is found in CRS § 16-22-108(3)(a). Defendant’s conduct of failing to cancel his registration with Adams County after he was kicked out of the Thornton house and then residing in another county is made a crime by subsection 412.5(1)(i), and the duty that corresponds to this crime is found in CRS § 16-22-108(4)(a)(I). Because the prosecution elected to charge defendant only under subsection 412.5(1)(a) and did not prove a violation of subsection 412.5(1)(a), the judgment of conviction and the sentence were vacated.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 6/27/13

On Thursday, June 27, 2013, the Colorado Court of Appeals issued no published opinions and 30 unpublished opinions.

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

Tenth Circuit: Burden for Allocating Judgment Between Covered and Uncovered Claims Is On Insurer Who Has a Duty to Defend

The Tenth Circuit Court of Appeals published its opinion in Automax Hyundai South v. Zurich American Insurance on Wednesday, June 26, 2013.

Automax Hyundai South, a car dealership in Oklahoma City, Oklahoma, filed suit against its insurer, Zurich American Insurance Co., for Zurich’s refusal to defend Automax in a lawsuit. The underlying lawsuit involved two aggrieved customers who brought claims against Automax relating to a car purchase they had made. The customers won a judgment in Oklahoma state court. The district court ruled that Zurich had no duty to defend or indemnify Automax in the underlying lawsuit, and thus its claims failed.

Automax’s policy had an occurrence provision covering accidents, not intentional conduct, and a statutory errors and omissions provision. The Tenth Circuit, applying Oklahoma law, held that Zurich had a duty to defend Automax because the underlying facts of the case, not the allegations in the complaint, are dispositive of the duty to defend. The facts indicated Automax may have been negligent in failing to detect prior damage to the car, which would take the acts out of the uncovered intentional realm. Additionally, because at least some of the alleged conduct was covered under the policy, Zurich had a duty to defend all the claims.

Zurich argued that it had no duty to indemnify Automax for the settlement it ultimately paid the customers in lieu of appealing the jury verdict because it was based on intentional conduct. The jury “found Automax liable under three different theories of liability—negligence, fraud/deceit, and truth-in-lending act violations—but neither apportioned the $300,000 damages award among the three theories nor specified the precise conduct to which the finding of intentionality and malice applied.” The Tenth Circuit found that it was possible covered conduct formed part of the basis for the verdict. The burden for allocating the judgment between covered and uncovered claims is on the insurer who has a duty to defend. The court remanded to give Zurich an opportunity to prove it can apportion the verdict between covered and uncovered conduct. The court held that if Zurich could not meet its burden, it would have to pay Automax the entire amount.

The court also reversed summary judgment for Zurich on Automax’s bad faith claim because Zurich had a duty to defend and may not have had a reasonable basis for denying coverage.

Tenth Circuit: Permissive Inference Instruction May Be Given if Justified by All the Evidence and Jury Instructed on its Permissible Use

The Tenth Circuit Court of Appeals published its opinion in United States v. Berry on Wednesday, June 26, 2013.

Norman Washington Berry was driving a commercial tractor trailer when a routine inspection revealed marijuana hidden among his load. A jury convicted Berry of possession with intent to distribute 100 kilograms or more of marijuana.

On appeal, Berry complained about a “permissive inference” instruction given to the jury. The instruction allowed the jury to infer Barry knowingly possessed the marijuana if the government proved beyond a reasonable doubt that he had sole possession of the vehicle in which it was found. Giving the instruction was not an abuse of discretion because it also required the jury to base any inference on all the evidence and kept the burden of proof with the government.

Berry also claimed the evidence was insufficient to establish the weight of the marijuana as more than 100 kilograms. The court found the evidence sufficient because a jury could find that the weight of the packaging did not exceed 43 percent of the gross weight, leaving at least 100 kilograms of marijuana.

Berry’s final argument was that his sentence ought not have been enhanced under USSG §3B1.3 based on his use of a special skill—commercial truck driving—to facilitate the commission of the crime. The court joined the Seventh and Ninth Circuits in concluding that the skill necessary to operate a commercial tractor-trailer is a “special skill” and because it did significantly facilitate the commission of his crime, the enhancement was correct. The court affirmed.

Tenth Circuit: Unpublished Opinions, 6/27/13

On Thursday, June 27, 2013, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Eatinger v. BP America Production Co.

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

Husch Blackwell Attorneys Win Burton Award for Distinguished Legal Writing

By Husch Blackwell

Two of Husch Blackwell’s Denver attorneys were presented a “Distinguished Legal Writing Award” from the 2013 Burton Awards for Legal Achievement, in a ceremony held at the Library of Congress June 3. Partner David Steefel and Associate Christopher Brady were honored for their 10-page article, “The Hague Convention on the Civil Aspects of International Child Abduction,” published in the April 2012 issue of The Colorado Lawyer.

Now in its 14th year, the Burton Awards is dedicated to rewarding great achievements in law with a special emphasis on writing and reform. The awards are selected by law school professors and judges, including professors from Harvard Law School; the University of Pennsylvania Law School; and the University of California, Irvine School of Law.

Brady noted that a highlight of the event for him was U.S. Supreme Court Justice Sonia Sotomayor’s discussion of her book, My Beloved World. “It was an honor to receive this award and be recognized along with other outstanding lawyers and Justice Sotomayor,” he said. “It is encouraging that our profession continues to recognize and encourage writing that presents complex legal issues in a clear and concise manner.”

Steefel and Brady’s article discusses the elements for establishing and defending a claim under the Hague Convention and the International Child Abduction Remedies Act, as well as various procedural aspects of such a claim — and practical guidance and useful resources for attorneys undertaking their first convention case.

Colorado Supreme Court: Court Considered Three Water Rights Disputes Concerning Two Large Competing Ranching Organizations

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Applicants in Moffat County; Vermillion Ranch LP v. Raftopoulos Brothers; Raftopoulos Brothers v. Vermillion Ranch LP on Monday, June 24, 2013.

Conditional Water Rights—Beneficial Use—Anti-Speculation Doctrine—“Can and Will” Standard—CRS § 37-92-305(9)(b)—Reasonable Diligence.

The Supreme Court considered two water rights cases involving Raftopoulos Brothers (Raftopoulos) and Vermillion Ranch Limited Partnership (Vermillion). In Case No. 11SA86, the Court vacated the portions of the water court’s order interpreting the phrase “all other beneficial uses” in 1974 change decrees regarding Raftopoulos’s absolute water rights and determining whether Raftopoulos had abandoned any right to use the decreed water for commercial or industrial purposes. The Court reversed the portion of the water court’s order decreeing Raftopoulos’s requested new conditional water storage rights to the extent the decree permits the water to be used for industrial and commercial purposes. In Case No. 11SA124, the Court reversed the water court’s order granting Vermillion’s application for a finding of reasonable diligence for previously decreed conditional water storage rights and granting Vermillion’s application for a new conditional water storage right.

Summary and full case available here.

Colorado Supreme Court: PDJ’s Motion Alleging Probation Violations Filed Before Order for Successful Completion of Probation Issued

The Colorado Supreme Court issued its opinion in In the Matter of Bass on Monday, June 24, 2013.

Attorney Discipline—CRCP 251.7.

Betty Bass appealed from the Presiding Disciplinary Judge’s (PDJ) denial of her motion filed pursuant to CRCP 60(b)(3) for relief from his earlier order revoking her probation and suspending her license to practice law. After a half dozen unsuccessful attempts to notify Bass of his show cause order, by mail and e-mail, over a period of approximately four months, the PDJ found Bass in default of the Attorney Regulation Counsel’s allegations of violation. After another six months, Bass filed her motion, requesting relief on the grounds that the order revoking her probation was void, both for failure to provide her adequate notice and for failure of regulation counsel to assert a violation until after the period of her probation had expired. Bass then asked for a ruling on the PDJ’s authority to proceed in the absence of a motion to revoke filed by regulation counsel before the expiration of the period of probation originally imposed on her.

The Supreme Court affirmed the order denying Bass’s motion. The Attorney Regulation Counsel’s motion alleging probation violations and seeking a show cause order was filed with the PDJ before the issuance of an order of successful completion of probation, as required by CRCP 251.7 for termination. Therefore, the PDJ was empowered by the rule to lift the stay and activate Bass’s suspension.

Summary and full case available here.

Colorado Supreme Court: Public Utilities Not Entitled to Intangible Property Exemption for Property Tax Purposes

The Colorado Supreme Court issued its opinion in Qwest Corp. v. Colorado Division of Property Taxation, Department of Local Affairs on Monday, June 24, 2013.

CRS § 39-4-102—Equal Protection—Uniform Taxation—Motion to Dismiss.

The Supreme Court affirmed the court of appeals’ ruling in favor of the Colorado Department of Local Affairs’ interpretation of CRS § 39-4-102. The Court held that Qwest Corporation, a public utility, is valued centrally and therefore is not entitled to the intangible property exemption or the cost cap valuation method found elsewhere in Colorado’s tax statutes. The Court also held that this valuation method does not violate Qwest’s constitutional guarantee under the Equal Protection Clause nor does it violate Qwest’s rights under the Uniform Taxation Clause of the Colorado Constitution.

Summary and full case available here.