August 23, 2019

Archives for July 17, 2013

JDF Instruction Forms Revised in Several Categories by State Judicial

The Colorado State Judicial Branch revised several JDF instructions in July across several categories. Additionally, the Affidavit of Service form (JDF 98) was revised, which affects many categories.

NOTE: Forms in the Domestic Relations and Probate categories will be addressed separately.

Click the links below to download the forms, or visit the Colorado State Judicial Branch website.

ADOPTION

  • JDF 495 – Instructions for Second Parent Adoption (revised 7/13)
  • JDF 496 – Instructions for Adult Adoption (revised 7/13)
  • JDF 497 – Instructions for Validation of Foreign Adoption (revised 7/13)
  • JDF 498 – Instructions for Kinship Adoption (revised 7/13)
  • JDF 499 – Instructions for Custodial Adoption (revised 7/13)
  • JDF 500 – Instructions for Stepparent Adoption (revised 7/13)

APPEALS

  • JDF 126 – Instructions for Filing a County Court Civil or Small Claims Appeal (revised 7/13)
  • JDF 221 – Instructions for Filing a County Court Criminal Appeal (revised 7/13)

CRIMINAL

  • JDF 460I – Instructions to Discontinue Sex Offender Registration (revised 7/13)
  • JDF 476 – Instructions to Discontinue Sex Offender Registration Juvenile (revised 7/13)

EVICTIONS & FORECLOSURES

  • JDF 100 – Instructions for Forcible Entry & Detainer (FED)/Evictions (revised 7/13)
  • JDF 140 – Instructions for Mobile Home FED (revised 7/13)
  • JDF 620 – Instructions for Filing a Response to a Rule 120 Notice (revised 7/13)

GARNISHMENTS & JUDGMENTS

  • JDF 137 – Instructions to File a Foreign Judgment (revised 7/13)
  • JDF 82 – Instructions on How to Collect a Judgment and File Writ of Garnishment (revised 7/13)
  • JDF 112 – Instructions for Reviving a Judgment (revised 7/13)

MISCELLANEOUS

  • JDF 122 – Instructions for Issuance of Contempt Citation (revised 7/13)
  • JDF 86 – Instructions for Issuing an Out-of-State Subpoena (revised 7/13)
  • JDF 79 – Instructions for Issuing a Subpoena (revised 7/13)

MONEY CASES

  • JDF 110 – Instructions for County Court Civil Cases (Money Demand) (revised 7/13)
  • JDF 96 – Instructions for Filing an Answer and/or Counterclaim (revised  7/13)
  • JDF 248 – Small Claims Instructions (revised 7/13)
  • JDF 251 – Notice, Claim, and Summons to Appear for Trial (revised 7/13)
  • JDF 122 – Instructions for Issuance of Contempt Citation (revised 7/13)
  • JDF 137 – Instructions for Filing a Foreign Judgment (revised 7/13)
  • JDF 79  – Instructions for Issuing a Subpoena (revised 7/13)
  • JDF 131 – Instructions for an Agistor’s Lien (revised 7/13)
  • JDF 115  – Instructions for Replevin (revised 7/13)
  • JDF 112 – Instructions for Reviving a Judgment (revised 7/13)

NAME CHANGE

  • JDF 432 – Instructions for Filing a Change of Name – Adult (revised 7/13)
  • JDF 420 – Instructions for Filing a Change of Name – Minor (revised 7/13)
  • JDF 385 – Instructions for Filing a Change of Name to Obtain Identity Related Documents (revised 7/13)

PROTECTION ORDERS

  • JDF 400 – Instructions for Obtaining a Protection Order (revised 7/13)

SEALING CASES

  • JDF 323 – Instructions to File a Petition to Seal Underage Alcohol Conviction (revised 7/13)
  • JDF 416 – Instructions to File a Petition to Seal Arrest and Criminal Records (revised 7/13)
  • JDF 611 – Instruction to Seal Criminal Conviction Records (revised 7/13)

SMALL CLAIMS

  • JDF 248 – Small Claims Instructions (revised 7/13)
  • JDF 251 – Notice, Claim, and Summons to Appear for Trial (revised 7/13)

Tenth Circuit: State Waived Its Right Not to be Sued in Federal Court Under Eleventh Amendment

The Tenth Circuit Court of Appeals published its opinion in Pettigrew v. State of Oklahoma on Monday, July 15, 2013.

Thomas Pettigrew filed suit in federal court in Oklahoma against the Oklahoma Department of Public Safety (DPS) after having reached a settlement with DPS on previous claims. The state moved to dismiss the second and third state law claims, arguing the claims were barred by sovereign immunity under the Eleventh Amendment. The court denied the motion. The state filed this interlocutory appeal.

This appeal presented only one issue for consideration: whether the previous settlement agreement between Pettigrew and the Oklahoma Department of Public Safety waived the state’s Eleventh Amendment right not to be sued in federal court.

The Eleventh Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. State sovereign immunity ordinarily bars federal-court jurisdiction over private suits against a state by citizens of the state. Pettigrew did not suggest that any federal statute abrogated Oklahoma’s sovereign immunity with respect to his state-law claims. Therefore, all the Tenth Circuit had to resolve was whether the state waived its immunity.

Waiver of sovereign immunity must be knowing and voluntary, and the test for determining whether a State has waived its immunity from federal jurisdiction is a stringent one. Pettigrew contended that the Venue Provision of the Settlement Agreement was such a waiver. It stated: “In the event that any litigation is commenced by either party to enforce the terms and conditions of the Agreement, the litigation will be brought in the appropriate Oklahoma court having jurisdiction, either state or federal . . . .”

Although the language of the agreement is not explicit, the Tenth Circuit held the settlement agreement’s reference to bringing suit in federal court had no reasonable construction except as a waiver. The Court therefore held that there was a waiver and affirmed the district court.

Tenth Circuit: Because Officer Made a Mistake of Law in Traffic Stop, Motion to Suppress Should Have Been Granted; Conviction Vacated

The Tenth Circuit Court of Appeals published its opinion in United States v. Nicholson on Friday, July 12, 2013.

On June 17, 2010, Roswell, New Mexico, Police Officer Doyle Baker stopped Jesse Nicholson for an alleged traffic violation. Nicholson had made a left turn making a shift into the right lane to enter the parking lot. According to Officer Baker, Nicholson cut off cars making right-hand turns from the opposite lane in violation of Roswell ordinance 12-6-5.1.

Smelling marijuana as he approached the vehicle, Baker asked Nicholson to step out of the car. Baker spotted two glass pipes—commonly used for smoking methamphetamine—and a police scanner in the driver’s door pocket. Baker asked for consent to search the vehicle; Nicholson refused. Officer Baker released Nicholson after issuing a traffic citation, but seized the car.

Police towed the car, sought, received and executed a search warrant. They discovered various items in the car, including over fifty grams of methamphetamine, a loaded .40 caliber pistol, a scale, assorted pills, and marijuana seeds.

Nicholson was indicted and filed a motion to suppress the evidence that was obtained in the traffic stop. He argued the there was no legal basis to stop Mr. Nicholson. The court denied Nicholson’s motion and the case proceeded to trial. The jury was unable to reach a verdict on any count. Nicholson entered into a conditional plea agreement, pleading guilty to all counts, but reserving his right to appeal the denial of his motion to suppress.

The Fourth Amendment requires that a traffic stop be objectively justified at its inception. That means a traffic stop must be based on an observed traffic violation or a police officer’s reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. Although an officer’s mistake of fact can justify a probable cause or reasonable suspicion determination for a traffic stop, an officer’s mistake of law cannot. The Tenth Circuit concluded that the traffic ordinance relied upon by Officer Baker, § 12-6-5.1, did not provide a legal basis for his stop of Nicholson. In other words, Officer Baker made a mistake of law when he stopped Nicholson for making a left turn into the street’s outermost lane.

Accordingly, the Tenth Circuit REVERSED the district court’s ruling on the motion to suppress and REMANDED with directions to vacate Nicholson’s convictions.

Tenth Circuit: Oil and Gas Operating Agreement Breach Damages Properly Deducted From Foreclosure Amount

The Tenth Circuit Court of Appeals published its opinion in Elm Ridge Exploration Co., LLC v. Engle on Tuesday, July 9, 2013.

Elm Ridge Exploration Company, LLC (“Elm Ridge”) is the operator of certain oil and gas leases in New Mexico, and Fred Engle is the majority owner of the leases. An operating agreement (the “Operating Agreement” or “Agreement”) governs their relationship. Elm Ridge sought to recover costs it incurred in drilling a well on the leasehold property (the West Bisti 22-1T well or “1T” well) by foreclosing on Engle’s lease interests. Engle contended, among other things, that he should not have to pay for unauthorized expenses that Elm Ridge incurred and filed several counterclaims. The court dismissed all but one counterclaim.

After a jury trial on Engle’s remaining claim that he should receive damages for Elm Ridge’s breach of its contractual and fiduciary duties, a jury found that Elm Ridge had breached the Operating Agreement and could not recover the costs attributable to the breach from Engle. The jury found that Engle still owed Elm Ridge for other drilling costs. Relying on the jury’s findings, the district court calculated Mr. Engle’s share of the costs not attributable to the breach and held that Elm Ridge was entitled to a foreclosure order. Both parties appealed.

Engle argued “that the district court erred in (A) concluding that Counterclaim Counts 1 and 2 and the third-party complaint were time-barred; (B) not excusing him from paying for any drilling costs; and (C) excluding other acts evidence regarding Elm Ridge.”

Elm Ridge argued “that (D) because Mr. Engle presented insufficient evidence to prove damages, the district court erred in denying its Rule 50(a) motion for judgment as a matter of law and in denying its motion to grant a new trial under Rule 59(a) or to amend judgment under Rule 59(e). It also argued that (E) the district court erred in submitting Counterclaim Count 3 to a jury rather than deciding it from the bench as a matter incidental to a foreclosure action.”

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 7/15/13

On Monday, July 15, 2013, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

United States v. Henry

Burgin v. Leach

United States v. Couchman

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