May 21, 2019

Archives for September 12, 2013

The 2013 Colorado Lawyer Satisfaction and Salary Survey — Part 1: Look on the Bright Side

rhodesLaw Week Colorado has been reporting the results of the survey conducted earlier this year. Click here to see the July 16th online summary.

It’s no news that we flock to bad news. It’s a survival mechanism: evolution has hardwired our brains to learn best by focusing on bad results – a neurological trait that seems to come easily to our profession. Accordingly, it would be easy to turn the results of a survey like this into yet another story about how bad things are for lawyers. But before we go there, let’s try to look on the bright side.

For example, much of the commentary about the survey weighs the following on the positive side of the ledger:

  • Despite all the law school bashing that’s been going on (including class action lawsuits against schools for inflating placement stats), three-fourths of respondents thought law school had prepared them at least somewhat well (49%) and in some cases very well (25%) for their careers.
  • Plus, now that they’re part of the workforce, a full 76% said they have a career mentor to help them find their way.
  • Despite the talk that lawyers are chained to their desks by crippling debt, 16% reported no debt, and another 48% found their debt load to be manageable.
  • Despite the prevailing notion that lawyers work such long hours they can’t possibly get a life, 88% said their work week comes in the “normal” range of 40-50 hours/week or less.
  • To get those hours, 84% worked from home, at frequencies ranging from a few times a year (31%) to once a month (19%), once a week (14%), or more (20%).
  • And despite how much or where they worked, 36% said their jobs rarely (31%) or never (5%) interfere with family.
  • Despite rumors that the Great Recession permanently turned a lot of lawyers into part-timers, a full 89% of lawyers who work in firms are full time.
  • 84% of respondents work in firms of 10 lawyers or less, which (as other surveys have shown) are home to a disproportionately high number of lawyers who are mostly satisfied with their jobs.
  • And despite whatever else is going on, at least the money’s good, with 83% of respondents earning $60,000 or more, 69% at $80,000 or more, and 54% over $100,000.

True, any survey of this nature invites debate about its methodology and what the responses actually tell us about lawyer satisfaction. Plus, the All-Star commentators who rolled out the survey results at the Supreme Court and wrote about them in Law Week Colorado have been less than fully sanguine about what the survey results tell us. Besides, who doesn’t know that working at home isn’t always what it’s cracked up to be, or that money can’t buy happiness?

We’ll give those concerns equal time later. In the meantime, at least we tried.

To be continued.

Kevin Rhodes is a lawyer in private practice who’s on a mission to help people love their work and their lives. He leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Colorado Court of Appeals: Announcement Sheet, 9/12/13

On Thursday, September 12, 2013, the Colorado Court of Appeals issued four published opinions and 38 unpublished opinions.

People v. Porter

Stresscon v. Traveler’s Property & Indemnity Co. of America

Sebastian v. Douglas County

Riccatone v. Colorado Choice Health Plans

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

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

Tenth Circuit: Habeas Petition Denial Reversed Based on Ineffective Assistance of Counsel

The Tenth Circuit Court of Appeals published its opinion in Heard v. Addison on Wednesday, September 4, 2013.

David Glen Heard pled guilty to two counts of “knowingly and intentionally . . . [l]ook[ing] upon . . . the body or private parts of [a] child under sixteen . . . in [a] lewd and lascivious manner,” in violation of Oklahoma’s lewd molestation statute, Okla. Stat. tit. 21, § 1123(A)(2). In pleading guilty, Heard admitted that he positioned himself in a Tulsa Wal-Mart store so as to be able to “look under [their] clothes at [their] bod[ies] and at [their] undergarments.” Pursuant to the terms of the plea agreement, the court sentenced Heard to concurrent twenty-five year prison terms.

Soon after he was sentenced, a private attorney told Heard about an unpublished case out of the Oklahoma Court of Criminal Appeals (“OCCA”), Robinson v. State, which cast doubt upon whether Heard’s conduct fell within the ambit of § 1123(A)(2) because his victims were not naked. It was too late for Heard to withdraw his guilty plea or file a direct appeal. The OCCA denied Heard post-conviction relief and expressly disapproved its reasoning in Robinson and another unpublished case.

The district court denied Heard’s habeas petition and he appealed, claiming he was deprived of his right to due process when the Oklahoma sentencing judge accepted his guilty plea without a sufficient factual basis for convicting him under § 1123(A)(2) and the OCCA’s interpretation of that statute was so arbitrary and capricious that it violated his due process rights. The Tenth Circuit held that it did not have the power to review an Oklahoma court’s interpretation of its state law and his arbitrary and capricious claim failed because he did not raise it in his habeas petition.

Heard also raised a Sixth Amendment ineffective assistance of counsel claim that the OCCA rejected because it held his behavior did violate § 1123(A)(2). The Tenth Circuit held that this decision was not entitled to extra deference under AEDPA because the OCCA improperly relied on hindsight in rejecting his claim. If the OCCA decided Heard’s behavior fit within the statute based on well-settled law, it would have been entitled to deference. Here, however, the OCCA abrogated its reasoning in the only two cases interpreting the statute that existed at the time Heard entered his pleas.

The court analyzed Heard’s trial counsel’s performance and held the lawyer’s performance during the plea-negotiation stage was constitutionally deficient because she did not advise him of possible defenses based on either the potential unconstitutionality of the statute or the existence of the unpublished opinions. The court also held that he was prejudiced by his counsel’s ineffective performance so he was entitled to relief.

The court reversed the district court’s denial of Heard’s § 2254 petition and remanded to the district court to order his release unless the Oklahoma state court allows Heard to withdraw his pleas.

Tenth Circuit: Habeas Petition Denied in Death Sentence Case

The Tenth Circuit Court of Appeals published its opinion in Howell v. Trammell on Thursday, September 5, 2013.

This appeal considers two petitions for habeas relief arising from the murder conviction and death sentence of Michael Wayne Howell. The conviction resulted from a crime spree Howell and Mona Lisa Watson committed. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed his conviction but reversed his death sentence and remanded for resentencing based on juror misconduct during the penalty phase of the trial. He was resentenced to death.

Howell’s first habeas petition was in 2002. After the Supreme Court in Atkins v. Virginia ruled that states could not impose capital punishment on persons with mental impairments, the Tenth Circuit abated that petition and allowed Howell to pursue a mental-disability challenge to his sentence in Oklahoma state court.

In 2005, a state court jury found that Howell was not mentally retarded after an Atkins hearing. Howell then filed a second habeas petition, alleging seventeen grounds for relief from his mental-disability trial, in addition to the five grounds remaining from his first petition that that were never considered by this court. The district court denied all relief and declined to grant a certificate of appealability (COA). The Tenth Circuit denied a COA on the second petition but addressed his first habeas petition that had been held in abeyance and Howell’s motion to reconsider his COA request.

Howell raised multiple challenges to his original guilt phase trial, including that (1) the juror misconduct responsible for reversing his first death sentence also required granting him a new trial on guilt; (2) the admission of Watson’s preliminary hearing testimony at their joint trial violated his Confrontation Clause rights; and (3) one juror’s failure to fully disclose his prior employment history deprived Howell of a fair and impartial jury. He also claimed that (4) his Confrontation Clause rights were violated when Watson’s former attorneys were allowed to testify about prior communications with Watson during his and Watson’s joint trial, a claim which Howell says the OCCA failed to address. He also argued that his counsel was constitutionally ineffective in revealing to the jury that Howell was already on death row during his retrial for sentencing. The Tenth Circuit affirmed the district court’s denial of relief on all these claims.

Regarding his second habeas petition, Howell sought a COA on four issues: (1) the applicable burden of proof in Atkins proceedings; (2) prosecutorial misconduct at jury selection; (3) ineffective assistance of counsel; and (4) insufficient evidence to support the jury’s mental retardation finding. Under AEDPA deference standard of review, the court found no reason to grant COA and dismissed his second habeas petition appeal.

Tenth Circuit: Unpublished Opinions, 9/9/13

On Tuesday, September 10, 2013, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Landrith v. Bank of New York Mellon

Lopez v. Holder

Clay v. State of Oklahoma

Landrith v. Schmidt

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

Application Period Open for Vacancies on Supreme Court Nominating Commission and Various Judicial District Nominating Commissions

On Wednesday, September 11, 2013, the Colorado State Judicial Branch announced vacancies on the Supreme Court Nominating Commission and the nominating commissions for 16 of Colorado’s 22 judicial districts. Twenty-nine vacancies were announced, and applications for these vacancies are due by 5 p.m. on October 11, 2013. Application forms for attorneys are available on the State Judicial website; applications for non-attorneys are available on the Governor’s Office website. All members of nominating commissions serve as volunteers.

Each judicial district nominating commission is comprised of three attorneys and four non-attorneys, no more than half of which plus one can share political party affiliation. Additionally, at least one member of each commission must reside in each county in the judicial district. Applicants must reside in the judicial district for whose nominating commission they seek appointment.

The Supreme Court Nominating Commission is comprised of seven attorneys and seven non-attorneys, plus one non-attorney at-large member. Each of Colorado’s seven congressional districts is represented by one attorney and one non-attorney.

The nominating commissions with vacancies are listed here. Specifications as to residency, party affiliation, or whether the vacancy is for an attorney or non-attorney are listed as applicable.

  • First Judicial District – one attorney and one non-attorney
  • Second Judicial District – one attorney
  • Fourth Judicial District – one attorney; must not be a registered Republican
  • Sixth Judicial District – one non-attorney
  • Ninth Judicial District – one attorney and one non-attorney
  • Tenth Judicial District – one attorney and one non-attorney
  • Twelfth Judicial District – one attorney; must reside in Alamosa County
  • Thirteenth Judicial District – one attorney and one non-attorney; one must reside in Washington County and one must reside in Morgan County
  • Fifteenth Judicial District – one non-attorney
  • Sixteenth Judicial District – two non-attorneys; one must reside in Crowley County
  • Seventeenth Judicial District – two attorneys
  • Eighteenth Judicial District – one attorney
  • Nineteenth Judicial District – one attorney
  • Twentieth Judicial District  – one non-attorney
  • Twenty-First Judicial District – two attorneys and one non-attorney
  • Twenty-Second Judicial District – one attorney; must not be a registered Republican
  • Supreme Court Nominating Commission – two attorneys and three non-attorneys; one attorney must be from the First Congressional District and the other must be from the Sixth Congressional District; one non-attorney must be from the Third Congressional District, one must be from the Sixth Congressional District, and the third is the at-large position.

For more information on the vacancies, click here. For information about nominating commissions, click here.

Protection Order Forms, Forms to Seal Juvenile Records Amended by State Judicial

In August and September 2013, the Colorado State Judicial Branch overhauled its Protection Order forms and issued revised forms in several different categories. State Judicial’s Probate forms were also amended in August, as previously reported by Legal Connection.

Forms are available for download here in PDF format by clicking the links below. State Judicial’s forms page has forms in PDF, Word, and Word template.

ADOPTION

  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 8/13)

CRIMINAL

  • JDF 475 – “Order to Discontinue Sex Offender Registration” (revised 9/13)

DOMESTIC

  • JDF 1099 – “Instructions for Filing a Dissolution of Marriage or Legal Separation if there are No Children of This Marriage or Children are Emancipated” (revised 8/13)
  • JDF 1100 – “Instructions for Filing a Dissolution of Marriage or Legal Separation with Children of This Marriage” (revised 8/13)
  • JDF 1266 – “Instructions for Filing a Dissolution or Legal Separation of Civil Union if there are No Children of This Civil Union or Children are Emancipated” (revised 8/13)
  • JDF 1267 – “Instructions for Filing a Dissolution or Legal Separation of Civil Union with Children of This Civil Union” (revised 8/13)

FILING FEES

  • JDF 202 – “Finding and Order Concerning Inmate Motion Requesting Waiving Prepayment of Filing/Service Fees” (revised 8/13)

GARNISHMENTS

  • JDF 82 – “Instructions for Collecting a Judgment and Completing a Writ of Garnishment” (revised 8/13)
  • Form 26 – “Writ of Continuing Garnishment” (revised 8/13)
  • Form 29 – “Writ of Garnishment with Notice of Exemption and Pending Levy” (revised 8/13)
  • JDF 89 – “Notice to Garnishee, Application of Funds to Judgment, and Release of Funds to Judgment Creditor” (revised 8/13)

PROTECTION ORDERS

  • JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 396 – “Instructions for Protected Person – Motion to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 8/13)
  • JDF 393 – “Verbal Emergency Protection Order” (revised 8/13)
  • JDF 394 – “Emergency Protection Order” (revised 8/13)
  • JDF 397 – “Motion to Modify or Dismiss Temporary or Permanent Protection Order” (revised 8/13)
  • JDF 398 – “Citation and Temporary Civil Protection Order” (revised 8/13)
  • JDF 399 – “Permanent Civil Protection Order” (revised 8/13)
  • JDF 401 – “Incident Checklist” (revised 8/13)
  • JDF 410 – “Order Modifying Protection Order” (revised 8/13)
  • JDF 413 – “Verified Motion for Contempt Citation” (revised 8/13)
  • JDF 440 – “Mandatory Protection Order” (revised 8/13)
  • JDF 442 – “Information Sheet for Registering a Protection Order” (revised 8/13)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile “JD” Case or Criminal “CR” Case (revised 8/13)
  • JDF 302 – “Petition for Expungement of Records” (revised 8/13)
  • JDF 304 – “Order for Expungement of Records” (revised 8/13)

Click here for all of State Judicial’s JDF forms.

Tenth Circuit: Surface Mining Control and Reclamation Act Appeal Dismissed for Lack of Ripeness

The Tenth Circuit Court of Appeals published its opinion in Farrell-Cooper Mining Co. v. United States Dep’t of Interior on Thursday, September 5, 2013.

This dispute concerns reclamation requirements contained in surface coal mine permits for Farrell-Cooper’s Liberty Mine #5 and Liberty Mine #6. The terms and administration of such permits are governed by the Surface Mining Control and Reclamation Act (SMCRA). Oklahoma is a “primacy” state under SMCRA so the Oklahoma Department of Mines (ODM) has enforcement authority unless an exception exists, in which case the United States Office of Surface Mining, Reclamation and Enforcement (OSMRE) has enforcement authority.

In 2011, OSMRE issued a ten-day notice to ODM raising concerns that the Liberty sites had failed to achieve original contour in their reclamation. After various administrative actions, the OSMRE issued notices of violation (NOV) to Farrell-Cooper for both sites.

Farrell-Cooper applied for administrative review before the Department of Interior’s Office of Hearings and Appeals to contest both NOVs. In the midst of these administrative deliberations, Farrell-Cooper filed suit against the Federal Appellees in the United States District Court for the Eastern District of Oklahoma. Farrell-Cooper and ODM sought a declaratory judgment that ODM had “sole and exclusive permitting authority” under Oklahoma’s SMCRA program. The district court dismissed the action for lack of jurisdiction.

The issue of ripeness had been raised and fully briefed in the district court but the court did not rule on that issue. The Tenth Circuit held that because both Farrell-Cooper and ODM’s claims were conditioned on an ongoing administrative proceeding, and neither party faced harm as the proceeding progresses, their claims were not ripe for review and dismissed the appeal.

Tenth Circuit: Corrected Opinion

This matter is before the court to correct small clerical errors found on pages 6, 7, and 12 of Niemi v. Lasshofer that originally issued on September 6, 2013. The decision shall reissue nunc pro tunc to the original filing date.

Tenth Circuit: Unpublished Opinions, 9/11/13

On Wednesday, September 11, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Lull v. Colvin

United States v. Washington

Leatherwood v. Whetsel

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