March 24, 2019

Archives for 2014

Chuck Turner to Receive Colorado Bar Association’s Award of Merit

chuck turner 300Charles C. Turner will be presented with the Colorado Bar Association’s highest honor, the Award of Merit, at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 9, 2015.

Turner will step down from his position as Executive Director of the Colorado and Denver Bar Associations effective Jan. 1, after 34 years of service.  Turner was the youngest executive director in the country when selected to the post in 1980.

“I’ve been honored to serve in this capacity with an outstanding staff and dedicated leadership and members,” Turner says. “Every day has been an adventure with both internal and external considerations to deal with, but I never, ever regretted my choice of career and feel blessed to have had the chance to have a small hand in the success of our Associations and our loyal members. To be named alongside the previous award recipients is simply overwhelming.”

The five most recent recipients of the Award of Merit – Bennett Aisenberg, Michael Berger, Gary Jackson, Constance Talmage and Anthony van Westrum – came together to write a nomination letter in support of Turner. They cited his impressive service and contributions to the legal profession, to the administration of justice, and to the community. It was noted that Turner went far above and beyond for three and a half decades, turning it into much more than “just a job.” His extra elements of service, delivered “with a devotion and positive effectiveness,” make him especially deserving of this honor.

“Chuck has done it all and has done it for thirty four years,” CBA President Charles Garcia says. “We all are indebted to him and this is a token of our gratitude for all he has done for the association and each of us individually as members.”

The Award of Merit, the association’s highest honor, is given annually to a member for outstanding service to the association, the legal profession, the administration of justice and the community. Turner and CBA Young Lawyers Division’s Gary L. McPherson Outstanding Young Lawyer of the Year Award recipient Ryann Peyton will be honored at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 9, at the Hyatt Regency Denver.

Tenth Circuit: Published Concurrence Condemns Police Abuse of Children Under Color of Sovereign Immunity

The Tenth Circuit Court of Appeals published Judge Lucero’s concurrence in Hawker v. Sandy City Corp. on Friday, December 5, 2014.

The Tenth Circuit issued its opinion in Hawker v. Sandy City Corp. as an unpublished opinion. The facts of the case were that C.G.H., a 9-year-old boy, stole an iPad from a classmate. His grandmother, who was his legal guardian, found the iPad and asked C.G.H. to return it. When he was returning it, school officials caught him with the iPad and took it from him. He was upset, and school officials forcibly restrained him and called his grandmother and the police. C.G.H. began to calm down as his grandmother spoke to him, but then the police arrived and placed the child in a forcible twist-and-lock restraint and handcuffed him as he cried, “you’re hurting me!” The grandmother took him to the doctor later that day, where he was treated for a hairline fracture to his clavicle (collarbone). In addition to the fracture, C.G.H. suffered post-traumatic stress and anxiety from this experience. The grandmother brought suit on his behalf under 42 U.S.C. § 1983 against the officer and the city, but the district court granted summary judgment on qualified immunity grounds. The Tenth Circuit reluctantly upheld the summary judgment.

Tenth Circuit Judge Lucero wrote a separate concurrence, which was published. Judge Lucero concurred with the findings of the panel, since they followed the law, but disagreed with the state of the law that allows a 9-year-old boy to be treated so forcibly. Judge Lucero writes, “It is time for a change in our jurisprudence that would deal with petty crimes by minors in a more enlightened fashion and would not automatically extend qualified immunity for conduct such as occurred in this case.” The potential future consequences for this child and society at large are great; the child is now branded a criminal and no doubt has lost all faith in the criminal justice system. And although it would be ideal if this were an isolated incident, it is not. School districts across the country are adopting swift punishment for such childish behavior, and children as young as six are handcuffed and treated as criminals.

Judge Lucero condemns the “school-to-prison pipeline” and the myriad negative consequences created by treating children as criminals. Without the benefit of an education free from duress, children are unlikely to succeed in life, and end up populating already overcrowded prisons. Instead of swift punishment, the school’s aim should be to realign the child away from criminal behavior and encourage the pursuit of a productive and educated life. As Judge Lucero says in closing, “We should change course and instead leave it to the factfinder to determine whether the handcuffing of six- to nine-year-old children is excessive force rather than giving schools and police a bye by holding them immune from liability. A more enlightened approach to elementary school discipline by educators, police, and courts will enhance productive lives and help break the school-to-prison chain.”

Tenth Circuit: Attorney’s Failure to Appear at Rescheduled Hearing Justified Finding of Contempt

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Friday, November 14, 2014.

Miguel Ramon Velasco was Adrian Hernandez’s criminal attorney. In the criminal proceeding, Hernandez pleaded guilty to two counts of an indictment charging conspiracy to distribute a controlled substance. On the day before a scheduled hearing to change his client’s plea, Velasco filed a motion for continuance, citing a problem with his computer. The court granted the continuance and the hearing was rescheduled for a date two months later. Again, the day before the hearing, Velasco filed a motion to continue. The court granted the motion but admonished Velasco that no more continuances would be granted. The parties agreed on August 7, 2013, for the hearing date.

Ten days before the third hearing date, Velasco again filed a motion to continue, citing a family vacation that could not be postponed due to his children’s school schedules. Velasco asserted that his client would not agree to substitute counsel. The court did not grant the continuance, and substitute counsel appeared at the hearing, to which Hernandez objected. Substitute counsel made an oral motion for continuance, and the court, recognizing the prejudice to Hernandez if a continuance was not granted, agreed. The court directed Velasco to show cause why he should not be held in contempt of court. At the show cause hearing, the court discovered that Velasco had knowingly made vacation plans after agreeing upon the hearing date. The court held Velasco in contempt and imposed a $2,000 fine. The following day, Velasco filed a motion to reconsider, citing the fact that his client’s brother had agreed to substitute counsel, but not explaining why the brother had any authority to so agree. The court entered an opinion and order reaffirming its finding of contempt, and Velasco appealed.

Velasco asserted five points of error, each generally arguing that the court erred by employing the summary contempt procedures in F.R.C.P. 42(b) for direct contempt rather than the full notice-and-hearing procedures from F.R.C.P. 42(a) for indirect contempt. Velasco contended that review should be conducted for abuse of discretion. However, since he did not properly raise his objections in the lower court, the Tenth Circuit reviewed for plain error and found none. Under a plain error review, the court must find that (1) there was error, (2) that was plain, and (3) the plain error affected his substantial rights. If these three criteria are met, the court may act to correct the error if it seriously affects the fairness or integrity of the proceedings. The Tenth Circuit found that Velasco’s arguments failed at the second step because it is not plain that his contempt was direct. The Tenth Circuit briefly explained the differences between direct contempt and indirect contempt, and found that it was plain to the trial judge and to the Tenth Circuit that his planned vacation was directly subversive of the court’s previous ruling.

The contempt order and fine were affirmed.

Tenth Circuit: Unpublished Opinions, 12/30/2014

On Tuesday, December 30, 2014, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

Abbo v. State of Wyoming

Perez-Leeds v. Colvin

United States v. Reed

Barron-Ordaz v. Holder

Colburn v. Jones

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: District Court Erred in Suggesting Offense Level Before Finding Facts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sabillon-Umana on Monday, December 8, 2014.

Elder Geovany Sabillon-Umana was convicted of drug offenses as part of a larger trafficking scheme. Because of his relatively small role in the scheme, the district court suggested that he should have a base Guidelines offense level of 32 and requested the prosecutor to justify that offense level. The prosecutor offered facts to support the offense level, telling the court that finding Sabillon-Umana responsible for 1.5 kilos of heroin and 1.5 kilos of cocaine would arrive at that offense level, and the court adopted those factual findings. Later in the proceedings, when the defendant requested a sentence reduction for compliance with the prosecution, the court rejected his request, instead finding the prosecution had authority to issue sentence reductions.

The Tenth Circuit found two errors in the district court proceedings. First, the Tenth Circuit sharply reprimanded the district court for reversing the proper order of proceedings by deciding on an offense level before finding facts. The Tenth Circuit evaluated the facts on which Sabillon-Umana’s conviction was based and found he could only be responsible for 1.5 kilos of heroin and cocaine combined, not 1.5 kilos of each, which would reduce his base offense level to 30.

Next, the Tenth Circuit found plain error in the district court’s failure to reduce the sentence due to Sabillon-Umana’s participation with the prosecution. The district court had contemplated a sentence of 72 months prior to stating it would not reduce the sentence unless the prosecution suggested it, and instead arrived at a sentence of 96 months. The Tenth Circuit found that sentencing discretion lies solely in the court.

The case was remanded for resentencing.

Colorado Court of Appeals: Announcement Sheet, 12/24/2014

On Wednesday, December 24, 2014, the Colorado Court of Appeals issued no published opinion and 22 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: Unpublished Opinions, 12/29/2014

On Monday, December 29, 2014, the Tenth Circuit Court of Appeals issued two published opinions and no unpublished opinions.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 12/24/2014

On Wednesday, December 24, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Armijo

Brown v. Department of Corrections Oklahoma State Penitentiary

United States v. Clark

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Credit Unions Now Able to Offer Federally Insured Attorney Trust Accounts

On December 18, 2014, President Barack Obama signed into law H.R. 3468, “Credit Union Share Insurance Fund Parity Act.” This Act allows credit unions to federally insure attorney trust accounts to the maximum amount allowed under the Share Insurance Fund.

The Act requires the National Credit Union Administration Board to provide pass-through share insurance to shares of any interest in a lawyer’s IOLTA account. Previously, credit unions were not able to insure these accounts at the same levels as banks because not all clients were members of the credit union, creating a competitive disadvantage for credit unions with attorney trust accounts.

 

J. Ryann Peyton Named Colorado Bar Outstanding Young Lawyer of the Year

RyannPeytonIn recognition of her exceptional contributions to the legal profession and the community, J. Ryann Peyton has been named the Colorado Bar Association Young Lawyers Division’s Gary L. McPherson Outstanding Young Lawyer of the Year.

Peyton, 32, is currently Special Counsel to The Harris Law Firm. She received her J.D. degree from the University of St. Thomas School of Law, and an LLM in Taxation from the University of Denver. Peyton is the current chair of the board of The GLBT Community Center of Colorado, and a founding member and current President of the Colorado GLBT Bar Association Foundation. She is also a Colorado Bar Association Board of Governors member.

“It is an honor to be recognized by my colleagues and peers to receive this award. As a diverse attorney, I approach my practice and community engagement with a passion for recognizing and meeting the needs of underserved populations,” Peyton says. “It is a privilege to work with and lead extraordinary organizations and individuals who are working each day to advance opportunities for these often under represented communities.”

The Gary L. McPherson Outstanding Young Lawyer of the Year award is given annually to a young lawyer with an outstanding record of professional success, community service achievements, and a strong commitment to civic participation and inspiring others. McPherson was honored with the award in 1993; he went on to serve three terms in the state legislature. The award was renamed in his honor following his death in 2000.

“It is my privilege and honor to work alongside Ryann Peyton each day in our family law practice. She exemplifies the best of the noble profession of lawyering,” Rich Harris, President of The Harris Law Firm, says. “Ryann is that rare individual who balances her law practice with her important charitable work. She is truly making a difference each day for her clients and for the community.”

Peyton will be honored at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 9 at the Hyatt Regency Denver.

Colorado Supreme Court: Historical Consumptive Use Analysis May Only Be Conducted on Water Associated with Water Right

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Widefield Water & Sanitation District and the City of Fountain in Custer County: Widefield Water & Sanitation District v. Witte, Division Engineer for Water Division 2 on Monday, December 22, 2014.

Historical Consumptive Use Analysis.

In this interlocutory appeal from the water court, the Supreme Court determined whether, when a decree delineates specific acreage to be irrigated, an applicant seeking to change the decreed right may conduct a historical consumptive use analysis on acreage beyond that lawfully associated with the relevant water right. The Court held that this is impermissible and that an applicant may conduct such an analysis only on acreage lawfully irrigated in accordance with the expressly decreed appropriation. Accordingly, the Court affirmed the judgment of the water court and remanded the case to that court for proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/23/2014

On Tuesday, December 23, 2014, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

United States v. Burkins

Buhl v. Berkebile

United States v. Mike

United States v. 6575 Meade Court

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.