July 17, 2019

Archives for September 4, 2013

ABA President James Silkenat to Speak at Hispanic National Bar Association Convention in Denver

James Silkenat, current president of the ABA, will be in Denver this weekend to speak at the Hispanic National Bar Association‘s 2013 Annual Convention. Mr. Silkenat became president of the ABA this August at the ABA Annual Meeting in San Francisco, where the ABA report, Latinos in the United States: Overcoming Legal Obstacles, Engaging in Civic Life, was also unveiled.

The report was prepared by the ABA’s Commission on Hispanic Legal Rights and Responsibilities. The Commission on Hispanic Legal Rights and Responsibilities was formed in 2010 to explore and report on urgent legal issues facing the Latino population, including the effect of overcoming legal hurdles on the civic lives of Latinos and Latinas, the country’s largest ethnic group.

The commission and its work represent the ABA’s commitment to advancing the needs of the Latino community and its organizations in America. Lawyers and policymakers can use this report as a resource to help them understand the important issues impacting Latinos.

“Through this report, the ABA recognizes that Hispanic legal rights and responsibilities are at the forefront of legal issues affecting our nation, such as immigration, voting rights, language and citizenship,” said Stephen N. Zack, the ABA’s first Hispanic president. “This is a first step toward putting a spotlight on and resolving these important issues.”

Mr. Silkenat is expected to present on the recommendations of the report at the HNBA Annual Convention this weekend. Mr. Silkenat has been active in the ABA for many years. He has been a member of the ABA House of Delegates since 1990, and has been active in many ABA committees, especially in areas related to international law. He received the Diversity Champion Award from the Bar Association of the City of New York. He is a frequent lecturer, and will present with the perspective of an experienced international law practitioner at the HBNA convention.

Click here for more information regarding the ABA’s Commission on Hispanic Legal Rights and Responsibilities. Click this link for the full report, Latinos in the United States: Overcoming Legal Obstacles, Engaging in Civic Life.

Tenth Circuit: Denial of Motion to Suppress Affirmed Where Search Reasonable Under Totality of Circumstances

The Tenth Circuit Court of Appeals published its opinion in United States v. Mabry on Wednesday, September 4, 2013.

Bruce Mabry was arrested for a parole violation after Kansas parole officers learned he had left the state without permission and was in a car containing a large quantity of marijuana. While arresting him back in Kansas, the officers found a sawed-off shotgun and subsequently charged Mabry with its possession. He moved to suppress the evidence of the weapon on the basis that his Fourth Amendment rights were violated by the search. The district court denied his motion to suppress, and Mabry appealed after pleading guilty.

Parolees and probationers have a reduced expectation of privacy so warrantless searches without probable cause may be proper if the search is reasonable under the totality of the circumstances. The Tenth Circuit applied the totality of the circumstances exception and concluded that the search at issue here was reasonable because (1) as a parolee, Mabry had a diminished expectation of privacy; (2) there was reliable information that Mabry had violated his parole and was involved with distributing drugs, which supports a reasonable suspicion to search the residence; and (3) the State had a strong interest in monitoring Mabry’s behavior and preventing his recidivism, especially in light of his recent parole violations. The court affirmed the denial of Mabry’s motion to suppress.

Tenth Circuit: Unpublished Opinions, 9/4/13

On Wednesday, September 4, 2013, the Tenth Circuit Court of Appeals issued four published opinions and five unpublished opinions.

Billinger v. Weinhold

iFreedom Direct v. First Tennessee Bank National

Hooper v. Jones

United States v. Graham

Davis v. Bear

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

New Members Needed for Colorado Commission on Judicial Performance

The Colorado Office of Judicial Performance Evaluation seeks individuals to fill vacancies for judicial performance evaluations in all 22 of Colorado’s judicial districts, as well as for the statewide commission that evaluates Colorado Supreme Court justices and Colorado Court of Appeals judges.

Commissions on Judicial Performance are non-partisan groups consisting of attorney and non-attorney volunteers who evaluate the performance of judicial officers based on established criteria. According to statute, those criteria include integrity, legal knowledge, communication skills, judicial temperament, administrative performance, and service to the legal profession and the public. The findings of the Commissions are provided to Colorado voters, who decide whether to retain judges during the general election.

More information about the Commissions on Judicial Performance may be found here. Questions can be directed to Kent Wagner, Executive Director of the Office of Judicial Performance Evaluation, at (303) 928-7779. For a list of vacancies, click here.


Colorado Court of Appeals: C.R.C.P. 6(b) Does Not Govern Time Limit for Payment of Jury Fee

The Colorado Court of Appeals issued its opinion in Premier Members Federal Credit Union v. Block on Thursday, August 29, 2013.

Fraud—Indemnification—Employer—Jury Trial—Jury Fee—Enlargement of Time—CRCP 6(b)—Vicariously Liable.

Defendant Darrell Einspahr appealed the judgment entered after a bench trial on the fraud claim of plaintiff Premier Members Federal Credit Union (Premier). He also appealed the court’s dismissal of his cross-claim that sought indemnification from Broadway Automotive Group, Inc., doing business as Quality Mitsubishi, Inc., and its owner Henry Block (collectively, Quality). The Court of Appeals affirmed.

Einspahr was the manager of the special finance department of Quality’s car dealership. He and another employee in the department recommended high-risk buyers for car loans from Premier. The fraud claim was based on their conduct of “power booking,” in which they artificially inflated the values of vehicles (which would create a better loan-to-value ratio) to induce Premier to approve the car loans.

On appeal, Einspahr contended that the trial court erred when it denied his request for a jury trial on the basis that he had failed to timely pay his jury fee. CRCP 6(b), which governs enlargements of time, does not apply to the statutory deadline for payment of jury fees. Einspahr’s failure to pay the jury fee at the time of filing of the jury demand constituted his waiver of a jury trial. Therefore, the court did not have discretion to grant defendant’s request for a jury trial on a showing of excusable neglect for his untimely payment of a jury fee, and properly denied Einspahr’s request for a jury trial.

Einspahr also contended that, following the bench trial, the court erroneously dismissed his cross-claim for indemnification against Quality, despite finding that Quality was vicariously liable for Einsphahr’s fraudulent “power booking.” An employee-tortfeasor is barred from seeking indemnification from his or her vicariously liable employer when, as here, that employee knew he or she was engaging in wrongful conduct. Based on the court’s findings that Einspahr knew he was engaging in a wrongful act, Einspahr was not an “innocent agent.” Accordingly, he had no right to seek indemnification from Quality.

Summary and full case available here.

Colorado Court of Appeals: Retrospective Application of Statute Abrogates Hospitals’ Credentialing Immunity

The Colorado Court of Appeals issued its decision in Hickman v. Catholic Health Initiatives on Thursday, August 29, 2013.

Immunity—Credentialing—CRS § 12-36.5-203(2)—Retroactive Application.

In this interlocutory appeal under CAR 4.2, defendant Catholic Health Initiatives, doing business as St. Anthony Hospital (hospital), appealed the trial court’s order denying the hospital’s assertion of immunity. The Court of Appeals affirmed.

In 2011, Kathleen Hickman sustained a knee injury. She sought treatment from a physician who was credentialed to practice as a vascular surgeon at the hospital. Allegedly as a result of the physician’s failure to diagnose and treat a circulatory problem, Hickman’s leg was amputated on November 18, 2011. Hickman and her husband sued the hospital and the physician on January 23, 2013 for negligent credentialing.

The hospital asserted that the current statute does not apply because the credentialing decision and injury at issue occurred before the statute’s effective date, although the action was filed after that date. Since 1989, Colorado hospitals have been statutorily immune from damages in any civil action brought against them with respect to peer review proceedings. CRS § 12-36.5-203(2) (current statute) abrogated this immunity as to credentialing decisions, effective July 1, 2012. The plain language shows that the General Assembly clearly intended the current statute to apply retroactively. Because such application is not unconstitutionally retrospective and the current statute applied to this matter, the trial court correctly rejected the hospital’s assertion of immunity.

Summary and full case available here.

Colorado Court of Appeals: Unauthorized Use and Identity Theft Statutes Not Mutually Exclusive

The Colorado Court of Appeals issued its opinion in People v. Jauch on Thursday, August 29, 2013.

Identity Theft—Unauthorized Use of a Financial Transaction Device—Equal Protection—Motion to Suppress—Search Warrant—Plain View Doctrine.

Defendant Kathy Lynn Jauch appealed the judgment of conviction entered on jury verdicts finding her guilty of theft, two counts of identity theft, and two counts of unauthorized use of a financial transaction device. The Court of Appeals affirmed.

The victim’s backpack was stolen from the parking lot in front of his workplace. It contained, among other things, a computer and a credit card. The credit card was used at a gas station shortly after it was stolen, and a woman who police later identified as Jauch was observed wearing a turquoise shirt with ruffles and attempting to use the credit card to order food from a restaurant.

On appeal, Jauch contended that the identity theft statute imposes a harsher penalty for the same conduct proscribed by the unauthorized use of a financial transaction device statute, and therefore, her identity theft conviction violates her equal protection rights. The two statutes, however, do not prohibit identical conduct. To prove identity theft, the prosecution must show that a defendant knowingly used the identifying information or a financial device belonging to another person or entity. By contrast, the unauthorized use statute requires no similar showing. Therefore, Jauch’s equal protection rights were not violated.

Jauch also contended that the trial court erred in denying her motion to suppress a turquoise shirt found during the search of her home. Because the officers had a lawful right of access to Jauch’s home through a valid search warrant and based on her fellow officer’s reasonable belief that the shirt was connected to the criminal activity under investigation, the officers had a lawful right of access to the turquoise shirt, which was found in Jauch’s home. Accordingly, the trial court did not err in admitting the turquoise shirt under the plain view exception.

Summary and full case available here.