June 16, 2019

Archives for July 12, 2013

New Study Examines Overlooked Process for Selecting Key Federal Judges

Quality Judges, an initiative of IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, has just released A Credit to the Courts: The Selection, Appointment, and Reappointment Process for Bankruptcy Judges. This study provides the first in-depth examination of the process for selecting U.S. bankruptcy judges, highlighting the similarities and differences among the regional circuits.

Unlike other federal judges, bankruptcy judges are not appointed by the President and confirmed by the Senate. Since 1984, they have been chosen by the judges of the federal circuit in which they will serve. According to U.S. Judicial Conference regulations, the judicial council in each federal circuit may appoint a merit selection panel to review applications for bankruptcy judge vacancies and make recommendations regarding potential nominees to the council. But until now, no empirical study has explored whether the judicial councils use such panels, who serves on these panels, and how the panels’ screening processes work.

“Despite the number of cases processed in these high-volume courts, and their significance in the financial lives of individuals and businesses alike, very little was known about how the judges who preside over these courts come to be on the bench,” said Malia Reddick, Director of the Quality Judges Initiative at IAALS.

The IAALS study is based on interviews with 25 bankruptcy judges and 11 participants in the selection process—including circuit and district judges, bankruptcy practitioners, and academics, as well as questionnaires completed by the 12 regional circuit executives.

Researchers learned that the judicial council in every circuit uses a merit selection panel in screening applicants for bankruptcy judge vacancies, but these panels vary extensively in composition and operation. For instance, while merit selection panels in some circuits are composed only of judges, other circuits exclude judges from participating on these panels. Panels also range in size from three to nine members. Additional differences, as well as similarities, in bankruptcy judge selection processes across the circuits are highlighted in the report.

Participants were unanimous in praising the products of the selection process. As one now-chief bankruptcy judge who has been on the bench for more than two decades summed it up: “They generally pick the best person, and it truly is merit selection. I’m proud of the way bankruptcy judges are selected. To me it is the best merit selection process we have.”

Quality Judges is an initiative of IAALS dedicated to advancing empirically informed models for choosing, evaluating, and retaining judges that preserve impartiality and accountability.

IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system.

Alli Gerkman is Director of Communications for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system.

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.

Colorado Court of Appeals: Interlocutory Appeal of Ruling Denying Foreign Sovereign Immunities Act Immunity Is Immediately Appealable as Final Order

The Colorado Court of Appeals issued its opinion in U.S. Taekwondo Committee v. Kukkiwon on Wednesday, July 3, 2013.

Interlocutory Appeal—Jurisdiction—Foreign Sovereign Immunities Act—Final Judgment—State Doctrine Ruling—Pendent Appellate Jurisdiction—Commercial Activity.

This was an interlocutory appeal of a trial court order denying motions to dismiss a breach of contract action brought against a foreign entity. The appeal was dismissed in part and affirmed in part, and the case was remanded.

Kukkiwon is a South Korean organization that promotes the martial art of Taekwondo. It initially existed as a nongovernmental entity, and so constituted, it contracted with plaintiffs U.S. Taekwondo Committee and U.S. Kukkiwon, making plaintiffs its overseas branch in the United States. Shortly after the contract with plaintiffs was formed, the South Korean government passed a law making Kukkiwon a “special corporation,” and giving the South Korean Minister of Culture, Sports, and Tourism authority over several of Kukkiwon’s activities. Subsequently, Kukkiwon notified plaintiffs that it was unilaterally cancelling the contract, and plaintiffs filed this action for breach.

Plaintiffs contended that the Court of Appeals lacked jurisdiction to determine this appeal because it was interlocutory. An interlocutory appeal from a ruling denying Foreign Sovereign Immunities Act (FSIA) immunity is immediately reviewable as a “final judgment,” pursuant to CRS § 13-4-102(1). Therefore, the Court had appellate jurisdiction to review this issue. On the other hand, it did not have the authority to review a related act of state doctrine ruling, because it did not have pendent appellate jurisdiction.

Defendant argued that the trial court erred in finding that it did not have FSIA immunity. FSIA is a federal statute that provides immunity to any “agency or instrumentality” of a foreign state unless, as pertinent here, the claim is based on “commercial activity.” The contract at issue here constituted commercial activity because it made plaintiffs an overseas branch of Kukkiwon and contemplated activity in the United States that could create revenue and profits. Therefore, defendants were not entitled to FSIA immunity. The case was remanded to the trial court for completion of the trial.

Summary and full case available here.

Colorado Court of Appeals: Although Business Was Prevailing Party, It was Not Entitled to Attorney Fees Because Claims Were Not Frivolous

The Colorado Court of Appeals issued its opinion in Smith v. Kinningham on Wednesday, July 3, 2013.

Car Accident—Collateral Source Rule—Medicaid Benefits—Evidence—Sudden Emergency Doctrine—Costs—Evidentiary Hearing—Prevailing Party—Attorney Fees.

Defendants Alan W. Kinningham and Accelerated Network Solutions, Inc. (ANS) appealed the trial court’s entry of judgment in favor of plaintiffs James C. Smith and Dona Laurita. They also appealed several of the trial court’s orders. ANS further appealed the trial court’s order denying its motion to deem it a prevailing party and award costs and attorney fees. The orders were affirmed in part and reversed in part, and the case was remanded with directions.

Kinningham and Smith were involved in a car accident on a one-way street in Denver. Smith braked suddenly to avoid hitting a third vehicle going the wrong way on the one-way street. Kinningham also braked, but he was unable to stop in time and rear-ended Smith’s car. Kinningham was part owner of ANS, but ANS did not own the car that Kinningham was driving. Smith and his wife, Laurita, brought this action against Kinningham and ANS.

Defendants argued that the trial court erred in granting plaintiffs’ pretrial motion to exclude evidence of Medicaid benefits that were paid on Smith’s behalf for medical services he received. Under CRS § 10-1-135(10)(a), evidence of Medicaid benefits paid on behalf of a plaintiff is inadmissible at trial for any purpose. Thus, the trial court did not err in excluding evidence of Medicaid benefits paid on Smith’s behalf.

Defendants also contended that the trial court erred in declining to give their tendered instruction on the sudden emergency doctrine. However, the sudden emergency doctrine was abolished. Therefore, there was no error.

Defendants further contended that the trial court erred in awarding plaintiffs their costs without holding an evidentiary hearing to determine the reasonableness of those costs. The trial court erred in awarding plaintiffs their costs and expert witness fees without conducting an evidentiary hearing, as requested.

ANS argued that the trial court erred in denying its motion to be declared a prevailing party, and in denying its request for attorney fees and costs. The Court of Appeals agreed that ANS was a prevailing party and was entitled to recover its costs pursuant to CRS § 13-16-105. However, it was not entitled to an attorney fees award, because plaintiffs’ claims against ANS were not frivolous and were not made in bad faith.

Finally, the court did not abuse its discretion in denying defendants’ motion for enlargement of time to designate a non-party at fault; denying defendants’ motion for sanctions concerning tax returns and alleged false statements; sustaining defendants’ objection to a question about liability insurance; and admitting Kinningham’s testimony regarding his own blood alcohol content. It also did not err in denying defendants’ motions for mistrial and for a new trial.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 7/11/13

On Thursday, July 11, 2013, the Colorado Court of Appeals issued no published opinions and 38 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: Felon in Possession of Firearm Conviction Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Spence on Tuesday, July 9, 2013.

Following a jury trial, Benjamin Spence was convicted of possessing a firearm and ammunition after former conviction of a felony, in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1). The trial court excluded the defendant’s father’s proffered testimony that it was his gun the defendant possessed. He appealed his conviction, arguing the district court erred in excluding his father’s proposed testimony and, by doing so, deprived him of his Fifth and Sixth Amendment right to present a defense.

The Tenth Circuit held that the testimony was properly excluded due to its limited probative value and potential to confuse the issues and mislead the jury. The court affirmed.

Tenth Circuit: Denial of Motion to Suppress Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Mikolon on Tuesday, July 9, 2013.

Defendant-Appellant Kenneth Mikolon entered a conditional plea of guilty to one count of possession of a firearm by a fugitive, 18 U.S.C. §§ 922(g)(2), 924(a)(2), reserving the right to appeal the denial of his motion to suppress. The district court relied on Quarles to deny Mikolon’s motion to suppress his pre-Miranda statement that he had weapons in his truck. Under Quarles, an officer may question a suspect in custody without first giving the Miranda warnings if the questions arise out of “an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.”

The Tenth Circuit held that whether Quarles applied or not, error, if any, was harmless. The prosecution had said it would not seek to admit Mikolon’s pre-Miranda statement at trial and the other evidence against him was so strong that he would have pleaded guilty even if the court had suppressed the statement. The Tenth Circuit affirmed.

Tenth Circuit: Unpublished Opinions, 7/10/13

On Wednesday, July 10, 2013, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.

Larrieu v. Best Buy Stores

Morrissey v. Ulibarri

Burris v. Bob Moore Auto Group

Brown, Sr. v. State of Kansas

Bromley v. Phillips

United States v. Mongold

Clark v. Oakley

United States v. Samuels

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

Tenth Circuit: Unpublished Opinions, 7/9/13

On Tuesday, July 9, 2013, the Tenth Circuit Court of Appeals issued six published opinions and four unpublished opinions.

Chieftain Royalty Co. v. XTO Energy

United States v. Smith

Pinson v. Davis

Martinez v. Martinez

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