August 22, 2019

Archives for June 27, 2013

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.

Colorado Court of Appeals: Officer’s Testimony Regarding Speed of Vehicle was Expert Testimony Disguised as Lay Opinion but Error was Harmless

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

Vehicular Eluding—Double Jeopardy—Merger—Lay Witness—Expert Testimony—Prosecutorial Misconduct.

Defendant Glenn McMinn appealed the judgment of conviction entered on a jury verdict finding him guilty of four counts of vehicular eluding, four counts of eluding a police officer, and one count of menacing. The judgment was affirmed.

McMinn and his girlfriend got into a fight, and he called the police. When Police Officer Anderson arrived at his house, McMinn was already in his pickup truck. He backed out of his driveway and accelerated. Because there was packed snow and ice on the road, the truck slid sideways, striking the officer. McMinn then led the police on a chase before being apprehended.

McMinn contended that under double jeopardy principles, his four convictions for vehicular eluding must be merged and his four convictions for eluding a police officer also must be merged. A defendant may be charged with multiple offenses of vehicular eluding arising from a single criminal episode when he or she has performed discrete acts of eluding one or more peace officers, each constituting a new volitional departure in the defendant’s course of conduct. Here, four officers, including Anderson, testified about being individually eluded during, and each had individual facts. Thus, the evidence supports separate convictions here.

McMinn also contended that the trial court plainly erred in allowing Sergeant Pinson to testify, as a lay witness, to calculations regarding the speed of the truck, and to opine, based on these calculations, that the truck was a deadly weapon. His testimony in fact was expert testimony presented in the guise of lay opinion, and the error in admitting such testimony was obvious and substantial. Because this evidence was cumulative of other evidence properly presented at trial, however, the erroneous admission of Sergeant Pinson’s expert opinions does not warrant reversal.

McMinn further argued that reversal was required due to prosecutorial misconduct in closing argument. Although some of the prosecutor’s comments may have been improper, they weren’t so obvious to undermine the fundamental fairness of the trial or cast serious doubt on the reliability of the judgment of conviction, especially when considered in the light of the evidence presented.

Summary and full case available here.

Colorado Court of Appeals: Because Defendant Broke Into Apartment Building Solely to Evade Police, Burglary Charge Unwarranted

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

Burglary—Obstructing a Peace Officer—Predicate Offense—Vehicular Eluding—Recklessness—Motion for New Trial—Evidence—Sentencing—Habitual Criminal—Prior Convictions.

Defendant appealed the judgment of conviction and sentence entered on jury verdicts finding him guilty of burglary, first-degree aggravated motor vehicle theft, vehicular eluding, obstructing a peace officer, and two habitual criminal counts. The judgment and sentence were affirmed in part and reversed in part, and the case was remanded.

Defendant and another man accosted a woman and stole her car. Defendant drove the car while police officers gave chase. At one point, defendant leapt from the moving car. He then ran to an apartment building and broke into the building to hide from the police.

On appeal, defendant contended that his conviction for second-degree burglary must be vacated because it was based on a crime—obstructing a peace officer—that was not a crime against another person or property. Defendant’s intent on entering the building was to avoid capture, and he hid once he was inside. Because defendant did not threaten the body of anyone, including the peace officer, the offense could not be used as a predicate offense for second-degree burglary. Therefore, the sentence related to this offense was reversed and the conviction was vacated.

Defendant also argued that (1) his conviction for vehicular eluding must be vacated because the evidence was insufficient to establish that he drove the car in a reckless manner; and (2) consequently, his conviction for aggravated motor vehicle theft also must be vacated because it was based on the offense of vehicular eluding. Defendant drove the vehicle through a residential neighborhood at a high rate of speed. He bailed out of the vehicle while it was still moving, and the car crashed with the passenger still inside. This evidence amply demonstrated the recklessness of defendant’s conduct as necessary to establish the offense of vehicular eluding.

Defendant further contended that the trial court erred by denying his motion for a new trial based on newly discovered evidence. The differences between the victim’s testimony in the two trials would serve merely to impeach her credibility. Evidence of these differences was not of such consequence that it would likely produce an acquittal. Therefore, the trial court did not abuse its discretion by denying defendant’s motion for a new trial.

Defendant argued that there was insufficient evidence to support the trial court’s findings that he previously had been convicted of two felonies for the purposes of sentencing him as a habitual criminal. The trial court did not abuse its discretion by finding the records of defendant’s prior convictions (pen pack) to be duly authenticated for purposes of the habitual offender charges. Furthermore, information contained in the pen pack linked it to defendant through some combination of his name, date of birth, and inmate number. This was sufficient evidence that defendant was the person named in the prior conviction for possession of a controlled substance. Finally, defendant was not prejudiced by any minor discrepancies in this information and it was proper for the judge to determine these facts.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 6/26/13

On Wednesday, June 26, 2013, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Lacour v. Tulsa City-County Jail

United States v. Nelson

B.J.G. v. Rockwell Automation

Ramirez-Canenguez v. Holder

American National Property v. Checketts

United States v. Ellsbury

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