April 20, 2019

Archives for January 31, 2014

Colorado Court of Appeals: Announcement Sheet, 1/30/14

On Thursday, January 30, 2014, the Colorado Court of Appeals issued five published opinions and 29 unpublished opinions.

People v. Conyac

Top Rail Ranch Estates v. Walker

Walker Development v. Top Rail Ranch Estates

Taylor Morrison of Colorado v. Bemas Construction

Rose L. Watson Revocable Trust v. BP America Production

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Issue Preclusion Does Not Apply in Bankruptcy Court to a Final Determination in District Court Where Party Waived Issue

The Tenth Circuit Court of Appeals published its opinion in In re Zwanziger on Tuesday, January 28, 2014.

James Hamilton and Richard Kus sued Wolfgang Zwanziger for fraud and violations of Oklahoma’s wage laws. A jury found Zwanziger liable and awarded Hamilton and Kus a combined sum of $573,000. Zwanziger appealed.

On appeal, the Tenth Circuit affirmed the jury’s verdict on liability but reversed on damages. Hamilton and Kus had failed to include damages for emotional distress in their final pretrial order, even though they listed such damages in their complaint. Thus, the Tenth Circuit concluded that the district court erred in instructing the jury to consider emotional distress damages. So the Tenth Circuit remanded to the district court to recalculate damages.

But before the district court could recalculate damages, Zwanziger declared bankruptcy. Kus and William Clark, as trustee of Hamilton’s estate, (since Hamilton had also declared bankruptcy), then filed a complaint in bankruptcy court to determine how much of Zwanziger’s liability was not dischargeable. After reviewing both sides’ damages case, the bankruptcy court awarded Clark and Kus a combined sum of $181,300 in nondischargeable damages, $50,000 of which was for emotional distress. Zwanziger appealed to the Bankruptcy Appellate Panel (BAP), arguing that res judicata precluded the bankruptcy court from including damages for emotional distress. The BAP reversed. Clark and Kus appealed the BAP’s decision.

In this appeal, the Tenth Circuit considered a novel question: Does issue preclusion apply in bankruptcy court to a final determination in district court that a party waived an issue? The court concluded issue preclusion does not apply to the waiver finding here. In this case, issue preclusion does not apply because a finding that an issue of fact or law is waived is not a decision on the merits. Waiver as a general matter is a procedural determination that governs only the case in which it is made.

Therefore, the court REVERSED the judgment of the Bankruptcy Appellate Panel and REMANDED for the bankruptcy court to REINSTATE its order.

Tenth Circuit: Disparity in Contribution Limits Among Candidates for Same Office Violated Equal Protection of Contributors

The Tenth Circuit Court of Appeals published its opinion in Riddle v. Hickenlooper on Thursday, January 23, 2014.

In 2010, three individuals ran for the Colorado House of Representatives, House District 61: Kathleen Curry, Roger Wilson, and Luke Korkowski. Curry was a write-in candidate, Wilson was the Democratic nominee, and Korkowski was the Republican nominee. Under Colorado law, individual contributions to Curry were capped at $200, and individual contributions to each of her opponents were capped at $400. Contributors to Curry’s campaign (along with others) sued state officials under 42 U.S.C. § 1983, claiming violation of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. The district court rejected the claims and granted summary judgment to the state officials.

Amendment 27 of the state constitution limits campaign contributions to state office candidates from single contributors to $200 for the primary and $200 for the general election. In 2004, the legislature removed time limits as to when a candidate could accept and spend contributions when a primary is involved. Because Republican and Democratic candidates must run in a primary to get on the ballot even if unopposed, but minor party, unaffiliated, or write-in candidates are only required to run in a primary when multiple candidates seek the nomination, the Secretary of State interprets the amendment and statute to allow candidates with a primary to accept $400 and those without to accept only $200.

The plaintiffs made an as applied argument to the statute and challenged the disparity rather than the amount of the limit. The Tenth Circuit focused on the contributors, not the candidates, in finding that contributors to all three candidates were similarly situated. It then applied the intermediate level of scrutiny the U.S. Supreme Court applied in the First Amendment context of contribution limits — whether the limits are closely drawn to a sufficiently important governmental interest.

The court found that the defendant’s asserted interest of anticorruption was not advanced by the statute so it was not closely drawn. It held that the statutory classification violates the right to equal protection for individuals wishing to contribute to write-ins, unaffiliated candidates, and minor-party candidates when each candidate runs unopposed for the nomination. The court reversed and remanded for summary judgment to be awarded to the plaintiffs.

Tenth Circuit: Bankruptcy 11 U.S.C. § 363(m) Mootness Does not Apply to Purely Statutory Claim for Money Damages

The Tenth Circuit Court of Appeals published its opinion in In re C.W. Mining Co. on Wednesday, January 22, 2014.

These appeals arise from a Chapter 7 asset sale for the liquidating bankruptcy estate of C.W. Mining Co., a former coal mining operation in Emery County, Utah. The four appellants did business with C.W. Mining before its involuntary bankruptcy. They now claim various assets that the bankruptcy trustee, Kenneth A. Rushton, sold to an unrelated entity, Rhino Energy LLC. Under 11 U.S.C. § 363(m), the court cannot grant the appellants any relief that would affect the validity of Rushton’s sale to Rhino. The district court dismissed the appeals as moot because of this statute.

The Tenth Circuit affirmed the dismissal of all the appeals with the exception of Charles Reynolds’s appeal because he raised a statutory claim for relief that did not affect the validity of the sale. Reynolds and his family lived in the mine’s scale house. Reynolds opposed Rushton’s action to evict Reynolds and return the house to the bankruptcy estate by arguing he was the rightful owner of the house and counterclaiming under the Utah Occupying Claimant Statute (UOCS).

On appeal, Reynolds sought damages under UOCS of the value of improvements to the house, not undoing the sale to Rhino. Section 363(m) mootness does not apply to this claim, nor does equitable mootness because this is a purely statutory claim for money damages. The court reversed and remanded the dismissal of Reynolds’s claim.

HB 14-1033: Enacting the “Regulatory Reform Act of 2014”

On January 8, 2014, Rep. Libby Szabo and Sen. Lois Tochtrop introduced HB 14-1033 – Concerning State Agency Requirements for the Enforcement of New Regulatory Requirements on Small Businesses, and, in Connection Therewith, Enacting the “Regulatory Reform Act of 2014.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

This bill enacts the “Regulatory Reform Act of 2014”. The bill makes legislative declarations about the importance of businesses with 100 or fewer employees to the Colorado economy and the difficulty these types of businesses have in complying with new administrative rules that are not known or understood by these businesses. The bill defines “new rule” as any regulatory requirement in existence for less than one year prior to its enforcement by a state agency, and “minor violation” as any violation of a new rule by a business of 100 or fewer employees where the violation is minor in nature, involving record-keeping and issues that do not affect the life safety of the public or workers. The bill provides exceptions from the definition of “minor violation” for certain types of rules.

For the first minor violation of a new rule by a business of 100 or fewer employees, the bill requires a state agency to issue a written warning and engage the business in educational outreach as to the methods of complying with the new rule. The bill requires state agencies to make information on new rules available and allows this information to be made available in electronic form. The bill is assigned to the State, Veterans, & Military Affairs Committee.

HB 14-1035: Clarifying that Restitution is Part of Deferred Judgment and Can Be Collected by the Court

On January 8, 2014, Rep. Bob Gardner and Sen. Mike Johnston introduced HB 14-1035 – Concerning Collection of Restitution Ordered Pursuant to a Deferred Judgment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that an order of restitution that is part of a deferred judgment can be collected by the court after the deferred judgment is dismissed until the judgment is satisfied. The bill has passed out of the Judiciary Committee—with amendments—and has been referred to the floor for consideration on 2nd Reading.

Since this summary, the bill passed 2nd Reading in the House with amendments and passed 3rd Reading.

HB 14-1032: Establishing Procedures for Providing Defense Counsel to Juvenile Offenders

On January 8, 2014, Rep. Daniel Kagan and Sen. Lucia Guzman introduced HB 14-1032 – Concerning the Provision of Defense Counsel to Juvenile Offenders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Juvenile Defense Attorney Interim Committee

A promise to appear in court served upon a juvenile and the juvenile’s parent, guardian, or legal custodian shall state, in clear language that is understandable and appropriate to a juvenile:

  • That the juvenile has the right to have counsel;
  • That counsel will be appointed for the juvenile if the juvenile or the juvenile’s parent, guardian, or legal custodian lacks adequate resources to retain counsel or refuses to retain counsel for the juvenile;
  • That, if the juvenile chooses to retain his or her own counsel, then the juvenile and the juvenile’s parent, guardian, or legal custodian are advised to choose counsel that is experienced in representing juveniles in the juvenile justice system; and
  • The contact information for the local office of the state public defender (OSPD).

When a juvenile is placed in a detention facility, a temporary holding facility, or a shelter facility designated by the court, the screening team shall promptly so notify the court, the district attorney, and the local office of the OSPD.

A juvenile who is detained shall be represented at the detention hearing by counsel. If the juvenile has not retained his or her own counsel, he or she shall be represented by the OSPD or, in the case of a conflict, by the office of alternate defense counsel (OADC). This representation shall continue unless:

  • The juvenile retains his or her own counsel; or
  • The juvenile is charged with an offense for which the juvenile may waive counsel and the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel.

The scheduled time for a detention hearing must allow a juvenile’s defense counsel sufficient time to consult with the juvenile before the detention hearing. This consultation may be performed by secure electronic means if the conditions under which the electronic consultation is held allow the consultation to be confidential. The law enforcement agency that arrested the juvenile shall promptly provide to the court and to defense counsel the affidavit supporting probable cause for the arrest and the arrest report, if the arrest report is available, and the screening team shall promptly provide to the court and to defense counsel any screening material prepared pursuant to the juvenile’s arrest.

A detention hearing shall not be combined with a preliminary hearing or a first advisement. Due to the limited scope of a detention hearing, the representation of a juvenile by appointed counsel at a detention hearing does not, by itself, create a conflict in the event that such counsel is subsequently appointed to represent another individual whose case is related to the juvenile’s case.

A summons issued by a court to a juvenile shall:

  • Explain that the court will appoint counsel for the juvenile if the juvenile does not retain his or her own counsel; and
  • State the contact information for the OSPD that serves the jurisdiction of the court.

At a juvenile’s first appearance before the court, after the detention hearing or at the first appearance if the juvenile appears on a summons, the court shall advise the juvenile of his or her constitutional and legal rights, including the right to counsel. The court shall appoint the OSPD or, in the case of a conflict, the OADC for the juvenile unless the juvenile has retained his or her own counsel or the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel.

Any decision to waive the right to counsel shall be made by the juvenile himself or herself after consulting with his or her defense counsel. The court may accept a waiver of counsel by a juvenile only after finding that:

  • The juvenile is of a sufficient maturity level to make a voluntary, knowing, and intelligent waiver of the right to counsel;
  • The juvenile has consulted with counsel and understands the sentencing options that will be available to the court in the event of an adjudication or conviction;
  • The juvenile has not been coerced into making the waiver;
  • The juvenile understands that the court will provide counsel if the juvenile’s parent, guardian, or legal custodian is unable or unwilling to obtain counsel for the juvenile; and
  • The juvenile understands the possible consequences that may result from an adjudication or conviction of the offense with which the juvenile is charged.

The court shall not accept a juvenile’s waiver of his or her right to counsel in any proceeding relating to a case in which the juvenile is charged with:

  • A sexual offense;
  • A crime of violence;
  • An offense for which the juvenile will receive a mandatory sentence upon his or her conviction of the offense; or
  • An offense for which the juvenile is being charged as a repeat juvenile offender, as an aggravated juvenile offender, or as a mandatory sentence offender.

The court shall not accept a juvenile’s attempt to waive his or her right to counsel if the prosecuting attorney is seeking direct file proceedings or a transfer proceeding or if the juvenile is in the custody of the state department of human services or a county department of social services.

For purposes of applying for court-appointed counsel, the indigence of a juvenile is determined only by considering the juvenile’s assets and income.

The appointment of counsel for a juvenile offender shall continue until the court’s jurisdiction is terminated, the juvenile or the juvenile’s parent, guardian, or legal custodian retains counsel for the juvenile, or the juvenile makes a knowing, intelligent, and voluntary waiver of his or her right to counsel.

A court shall not deem a guardian ad litem who is appointed by the court for a child in a delinquency proceeding to be a substitute for defense counsel for the juvenile.

The OSPD, before determining indigency, may provide limited representation to juveniles in detention hearings or adult defendants in custody who cannot post or are not allowed bond.

The OSPD, the OADC, and the judicial branch shall annually report certain data concerning juvenile delinquency proceedings.

The bill is assigned to the Judiciary Committee. The summary above relates to the bill as introduced; the sponsor is seeking input from various stakeholders to develop amendments.