August 21, 2019

Archives for May 5, 2014

IAALS: Let’s Stop Choosing Law School Like It’s 1999

Alli_Gerkman_bw_2014

This post originally appeared on IAALS Online, the blog for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, on April 29, 2014.

By Alli Gerkman

I was preparing for a presentation to prospective law students last month when I realized it has been 15 years since I was standing in their shoes, trying to make the right decision about law school. I wanted to tell them about resources they should be looking for—beyond law school rankings—but as I tapped into all the resources I know of, one thing became very clear: we’re still asking prospective law students to make one of the most important decisions of their lives almost the same exact way we were doing it in 1999. And probably 1989, for that matter.

Which is pretty funny (and tragic), if you think about everything else that has happened in the last 15 years. “Google” became a verb. Our smart phones let us talk to anyone at any time—by video. Cars drive themselves. And, more relevant to the concept of choosing law school, all of our decisions have been made easier through individualized recommendations. When I go to the New York Times, it recommends articles based on my usage. My Amazon home screen recommends books based on past purchases. And Spotify introduces me to new music based on what I play. All of these used to be dominated by generic recommendations—newspapers were driven by “front page” articles, booksellers touted bestseller lists, and Billboard charted the top hits in the country. These generic recommendations persist (and provide some value), but they have been richly supplemented by individualized recommendations that drive our choices.

In the world of choosing law schools, we have the generic rankings and recommendations—including US News & World Report, and a number of others that have popped up over the years—and these provide a certain value, but they hardly give the whole picture and they certainly don’t provide prospective students with individualized information about a decision that, in the end, is very personal.

We’re trying to help with that. Last year, Educating Tomorrow’s Lawyers launched Law Jobs: By the Numbers, an employment calculator that allows you to review school employment numbers based on the criteria you care about most. With the American Bar Association’s release of the 2013 employment numbers, we made the tool easier for prospective students to use by adding a Q&A tool that walks you through each factor, explains what it is, and lets you decide whether you want to include it in your final calculations. At the end of the Q&A, you get a personalized list of schools based on your personal selections (here’s one example). Lots of groups will tell you which law schools are best, but only Law Jobs: By the Numbers lets you decide for yourself.

This is just the first step, but we think it’s a step in the right direction. Perhaps US News & World Report rankings won’t go away anytime soon. And perhaps that’s okay, so long as, like other industries, we find ways to supplement the generalized rankings with individualized information that allows prospective students to make choices about where to go to law school that are, in the end, right for them.

Alli Gerkman became the first full-time Director of Educating Tomorrow’s Lawyers, a national initiative to align legal education with the needs of an evolving profession, in May 2013. She joined IAALS in June 2011 as Online Content Manager, developing and managing all IAALS web properties, including Educating Tomorrow’s Lawyers, and became IAALS’ Director of Communications in August 2012. She brings significant professional development experience to the initiative, having spent five years in continuing legal education, first as a program attorney organizing multi-day conferences for a national provider and then as program attorney and manager of online content for Colorado Bar Association CLE. While at CBA-CLE, she developed an online legal resource that was the recipient of the Association of Continuing Legal Education’s 2011 Award of Professional Excellence for use of technology in education. She has written and presented nationally to continuing legal education providers, bar executives, and lawyers. Prior to her work in continuing legal education, she was in private practice.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

e-Legislative Report: May 5, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The LPC met on Friday, May 2 but did not take any positions on any additional bills.

At the Capitol—Week of April 28

A scorecard of the committee and floor work follows.

In the House

Monday, April 28

Passed on 3rd reading.

  • HB 14-1374. Concerning the inclusion of on-demand air carriers in the sales and use tax exemption for certain aircraft. Vote: 64 yes and 1 no.
  • HB 14-1379. Concerning clarifying the application of spousal maintenance statutes. Vote: 64 yes and 1 no.
  • HB 14-1378. Concerning prohibiting the posting of a private image on social media without consent to cause serious emotional distress. Vote: 65 yes and 0 no.
  • HB 14-1390. Concerning the legal standing of a member of the public in challenging a violation of the open meetings requirements. Vote: 65 yes and 0 no.
  • HB 14-1388. Concerning a civil cause of action for damages that result from an unlawful termination of a pregnancy at any time prior to birth caused by at least reckless conduct without establishing legal personhood at any time prior to a live birth. Vote: 37 yes and 28 no.
  • HB 14-1375. Concerning modifications to statutory provisions governing urban redevelopment to promote the equitable financial contribution among affected public bodies in connection with the tax increment financing of urban redevelopment projects. Vote: 40 yes and 25 no.
  • SB 14-183. Concerning an increase in the maximum term of a business incentive agreement that a local government enters into with a taxpayer who pays business personal property tax. Vote: 63 yes and 2 no.
  • SB 14-171. Concerning the ability of the Colorado new energy improvement district to arrange financing for water conservation fixtures. Vote: 39 yes and 26 no.
  • SB 14-152. Concerning the standardization of financial transaction requirements applicable to insurers. Vote: 63 yes and 2 no.
  • SB 14-173. Concerning the recommendation that certain persons be offered a test for the hepatitis C virus. Vote: 46 yes and 19 no.
  • SB 14-11. Concerning the Colorado energy research authority. Vote: 38 yes and 27 no.
  • SB 14-151. Concerning the use of moneys derived from civil penalties imposed on nursing facilities to fund innovations in nursing home care, and, in connection therewith, making an appropriation. Vote: 61 yes and 4 no.
  • SB 14-64. Concerning restricting the use of long-term isolated confinement for inmates with serious mental illness, and, in connection therewith, making an appropriation. Vote: 63 yes and 2 no.
  • SB 14-130. Concerning an increase to the personal needs allowance for persons in nursing care facilities, and, in connection therewith, making and reducing appropriations. Vote: 64 yes and 1 no.
  • SB 14-157. Concerning the commission of a report by the department of military and veterans affairs that examines the comprehensive value of United States military activities centered in Colorado, and, in connection therewith, making and reducing appropriations. Vote: 65 yes and 0 no.
  • SB 14-75. Concerning the registration of motor vehicles for members of the United States armed forces who are deployed outside the United States, and, in connection therewith, making and reducing appropriations. Vote: 65 yes and 0 no.
  • SB 14-125. Concerning the regulation of transportation network companies, and, in connection therewith, requiring transportation network companies to carry liability insurance, conduct background checks on transportation network company drivers, inspect transportation network company vehicles, and obtain a permit from the public utilities commission; and making an appropriation. Vote: 60 yes and 5 no.

Wednesday, April 30

Passed 3rd Reading:

  • HB 14-1343. Concerning workers’ compensation coverage for post-traumatic stress disorder for peace officers. Vote: 44 yes, 20 no, and 1 excused.
  • SB 14-144. Concerning extending the commission on family medicine’s support for the development of family medicine residency programs in underserved areas of the state, and, in connection therewith, making and reducing appropriations. Vote: 60 yes and 5 no.
  • HB 14-1369. Concerning required licensure for durable medical equipment suppliers, and, in connection therewith, making an appropriation. Vote: 48 yes and 17 no.
  • HB 14-1396. Concerning clarification of the authority of persons acting on behalf of the department of public health and environment to administer the medical marijuana registry. Vote: 65 yes and 0 no.
  • SB 14-21. Concerning the treatment of persons with mental illness who are involved in the criminal justice systems, and, in connection therewith, making an appropriation. Vote: 65 yes and 0 no.

Thursday, May 1

Passed on 3rd reading.

  • SB 14-73. Concerning the state income tax credit for the environmental remediation of contaminated land in the state, and, in connection therewith, making and reducing appropriations. Vote: 55 yes and 10 no.
  • SB 14-88. Concerning the creation of the suicide prevention commission, and, in connection therewith, making and reducing appropriations. Vote: 45 yes and 20 no.
  • SB 14-115. Concerning procedural requirements applicable to state water plans, and, in connection therewith, making and reducing an appropriation. Vote: 65 yes and 0 no.
  • SB 14-166. Concerning the development of mobile application software in the Colorado office of economic development that users may access to identify local businesses, and, in connection therewith, making and reducing appropriations. Vote: 38 yes and 27 no.
  • HB 14-1392. Concerning a prohibition on the use of simulated gambling devices. Vote: 61 yes and 4 no.
  • HB 14-1393. Concerning a clarification regarding the treatment of federal funds for purposes of section 20 of article X of the state constitution. Vote: 58 yes, 6 no, and 1 excused.
  • SB 14-182. Concerning procedures governing discussions by boards of education of school districts while meeting in executive session. Vote: 36 yes, 26 no, and 3 excused.
  • SB 14-162. Concerning quality management programs for emergency medical service providers providing care in the prehospital setting. Vote: 62 yes, 0 no, and 3 excused.
  • SB 14-174. Concerning the creation of the prosecution fellowship program. Vote: 48 yes, 14 no, and 3 excused.
  • SB 14-87. Concerning issuance of identification cards to people who are lawfully present in the United States but may have difficulty with certain documentary evidence, and, in connection therewith, making and reducing appropriations. Vote: 40 yes, 22 no, and 3 excused.
  • SB 14-133. Concerning the regulation of private investigators by the department of regulatory agencies, and, in connection therewith, making appropriations. Vote: 45 yes, 27 no, and 3 excused.
  • SB 14-164. Concerning aerial firefighting efforts through the division of fire prevention and control in the department of public safety, and, in connection therewith, implementing recommendations made by the division regarding the Colorado firefighting air corps. Vote: 51 yes, 11 no, and 3 excused.
  • SB 14-187. Concerning creation of the Colorado commission on affordable health care to analyze health care costs in Colorado, and, in connection therewith, making an appropriation. Vote: 40 yes, 22 no, and 3 no.
  • SB 14-194. Concerning the issuance of identification documents by the department of revenue, and, in connection therewith, making an appropriation. Vote: 60 yes, 2 no, and 3 excused.
  • SB 14-118. Concerning improving protections for individuals with disabilities. Vote: 60 yes, 2 no, and 3 excused.

Saturday, May 3

Passed 3rd Reading:

  • SB 14-212. Concerning clarifying changes to the provisions related to best practices in bond setting. Vote: 39 yes, 25 no, and 1 excused.
  • SB 14-209. Concerning the requirements for permissible investments by insurers in loans secured by interests in real estate. Vote: 62 yes, 2 no, and excused.
  • SB 14-206. Concerning criminal record sealing provisions, and, in connection therewith, relocating the record sealing provisions in a new part, clarifying when an arrest record can be sealed, and making other clarifying changes. Vote: 64 yes, 0 no, and 1 excused.
  • SB 14-191. Concerning the procedures for resolution of workers’ compensation claims. Vote: 39 yes, 28 no, and 1 excused.
  • SB 14-184. Concerning oversight of the industrial hemp program. Vote: 64 yes, o no, and 1 excused.
  • SB 14-186. Concerning the aggregation of efficiency projects in small communities in order to attract private sector investment through performance contracting. Vote: 38 yes, 26 no, and 1 excused.

In the Senate

Monday, April 28

Passed on 3rd Reading:

  • HB 14-1216. Concerning required safety markings for certain towers over fifty feet in height that are located in unincorporated areas of the state. Vote: 33 yes, 1 no, and 1 excused.
  • SB 14-159. Concerning implementation of standardized rules for use in processing medical claims, and, in connection therewith, making an appropriation. Vote: 24 yes, 10 no, and 1 excused.
  • HB 14-1328. Concerning the deployment of broadband into unserved areas of Colorado through grant- making from moneys allocated from the Colorado high cost support mechanism, and, in connection therewith, making an appropriation. Vote: 28 yes, 6 no, and 1 excused.
  • HB 14-1331. Concerning the regulation of basic local exchange service as it affects effective competition, and, in connection therewith, making an appropriation. Vote: 33 yes, 1 no, and 1 excused.
  • HB 14-1329. Concerning the exemption of certain internet-protocol-enabled services from oversight by the public utilities commission, and, in connection therewith, making an appropriation. Vote: 34 yes, 0 no, and 1 excused.
  • HB 14-1327. Concerning measures to expand the deployment of communication networks, and, in connection therewith, enacting the “Broadband Deployment Act” and making an appropriation. Vote: 32 yes, 2 no, and 1 excused.
  • HB 14-1330. Concerning an update of telecommunications terminology for intrastate telecommunications services. Vote: 34 yes, 0 no, and 1 excused.
  • SB 14-118. Concerning improving protections for individuals with disabilities. Vote: 22 yes, 12 no, and 1 excused.
  • HB 14-1170. Concerning the authority of the state to enter into lease-purchase agreements for the Colorado bureau of investigation’s Pueblo regional office and forensic laboratory, and, in connection therewith, making an appropriation. Vote: 23 yes, 11 no, and 1 excused.
  • SB 14-206. Concerning criminal record sealing provisions, and, in connection therewith, relocating the record sealing provisions in a new part, clarifying when an arrest record can be sealed, and making other clarifying changes. Vote: 33 yes, 1 no, and 1 excused.
  • HB 14-1072. Concerning an income tax credit for child care expenses paid by a resident individual with a federal adjusted gross income of $25,000 or less, and, in connection therewith, making an appropriation. Vote: 23 yes, 11 no, and 1 excused.
  • HB 14-1014. Concerning modifications to the job growth incentive tax credit, and, in connection therewith, reducing an appropriation. Vote: 27 yes, 7 no, and 1 excused.
  • HB 14-1205. Concerning the veteran’s assistance grant program. Vote: 24 yes, 10 no, and 1 excused.
  • HB 14-1211. Concerning ensuring access to quality complex rehabilitation technology in the Medicaid program, and, in connection therewith, making and reducing appropriations. Vote: 29 yes, 5 no, and 1 excused.
  • HB 14-1011. Concerning the funding of advanced industry economic development programs. Vote: 19 yes, 15 no, and 1 excused.
  • SCR 14-2. Submitting to the registered electors of the state of Colorado an amendment to the Colorado constitution concerning the protection of electronic data from unreasonable searches and seizures. Vote: 34 yes, 0 no, and 1 excused.

Tuesday, April 29

Passed on 3rd Reading:

  • HB 14-1322. Concerning the Colorado probate code. Vote: 35 yes and 0 no. CBA-sponsored legislation.
  • HB 14-1323. Concerning restrictions on the ability of a government entity to access an individual’s personal medical information. Vote: 35 yes and 0 no.
  • HB 14-1159. Concerning a state sales and use tax exemption for components used in biogas production systems. Vote: 31 yes and 4 no.
  • HB 14-1095. Concerning the Colorado bureau of investigation’s authority to investigate computer crime, and, in connection therewith, making an appropriation. Vote: 33 yes and 2 no.
  • SB 14-155. Concerning grant funding for medical marijuana health effects studies. Vote: 35 yes and 0 no.

Wednesday, April 30

Passed on 3rd Reading:

  • SB 14-209. Concerning the requirements for permissible investments by insurers in loans secured by interests in real estate. Vote: 35 yes and 0 no.
  • HB 14-1353. Concerning powers of appointment. Vote: 34 yes and 1 no. CBA-supported legislation.
  • HB 14-1044. Concerning consequences for a parolee who tampers with an electronic monitoring device that the parolee is required to wear as a condition of parole. Vote: 35 yes and 0 no.
  • HB 14-1363. Concerning the nonsubstantive revision of statutes in the Colorado Revised Statutes, as amended, and, in connection therewith, amending or repealing obsolete, imperfect, and inoperative law to preserve the legislative intent, effect, and meaning of the law. Vote: 35 yes and 0 no.
  • HB 14-1362. Concerning great-grandparent visitation with great-grandchildren. Vote: 35 yes and 0 no.
  • HB 14-1273. Concerning human trafficking, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • HB 14-1269. Concerning the circumstances under which a person who sells items subject to sales tax must collect such sales tax on behalf of the state. Vote: 18 yes and 17 no.
  • HB 14-1359. Concerning medication synchronization for patients who are prescribed multiple medications. Vote: 23 yes and 12 no.
  • SB 14-191. Concerning the procedures for resolution of workers’ compensation claims. Vote: 18 yes and 17 no.
  • HB 14-1278. Concerning continuation of the workers’ compensation accreditation program administered by the division of workers’ compensation, and, in connection therewith, implementing the recommendations of the 2013 sunset report by the department of regulatory agencies. Vote: 22 yes and 13 no.
  • HB 14-1270. Concerning the sunset review of the licensing of pet animal facilities, and, in connection therewith, continuing the licensing functions of the commissioner of agriculture and making substantive changes to the regulatory statutes. Vote: 20 yes and 15 no.
  • HB 14-1333. Concerning the funding of Colorado water conservation board projects, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1119. Concerning an income tax credit for the donation of food to a hunger-relief charitable organization. Vote: 27 yes and 8 no.
  • HB 14-1032. Concerning the provision of defense counsel to juvenile offenders, and, in connection therewith, making and reducing appropriations. Vote; 28 yes and 7 no.
  • HB 14-1012. Concerning income tax credits that promote investment in Colorado advanced industries, and, in connection therewith, making an appropriation. Vote: 21 yes and 14 no.
  • HB 14-1317. Concerning modifications to the Colorado child care assistance program, and, in connection therewith, aligning eligibility and authorization; addressing affordability by reducing copayments; improving provider reimbursement rates; increasing access to quality care; improving technology, infrastructure, and administration; and making an appropriation. Vote: 20 yes and 15 no.
  • HB 14-1356. Concerning an increase in the Colorado oil and gas commission’s penalty authority, and, in connection therewith, making an appropriation. Vote: 20 yes and 15 no.
  • SB 14-197. Concerning high-performance transportation enterprise transparency. Vote: 25 yes and 10 no.
  • SB 14-195. Concerning a study of phreatophyte growth along the South Platte River in the aftermath of the September 2013 flood. Vote: 34 yes and 1 no.
  • HB 14-1300. Concerning a 2014-15 state fiscal year general fund transfer to the Colorado state fair authority cash fund to support the state fair’s programs with the state’s 4-H clubs and the Colorado association of the national future farmers of America organization, and, in connection therewith, reducing an appropriation. Vote: 28 yes and 7 no.
  • HB 14-1093. Concerning the establishment of the creative district community loan fund, and, in connection therewith, making and reducing appropriations. Vote: 19 yes and 16 no.
  • HB 14-1326. Concerning tax incentives for alternative fuel trucks, and, in connection therewith, making an appropriation. Vote: 27 yes and 8 no.
  • HB 14-1310. Concerning the provision of breath-testing devices to law enforcement agencies. Vote: 27 yes and 8 no.
  • SB 14-190. Concerning criminal discovery, and, in connection therewith, creating a statewide discovery sharing system, a criminal discovery surcharge, civil immunity for district attorneys that make a good-faith effort to redact information from discovery documents, and making an appropriation. Vote: 35 yes and 0 no.
  • SB 14-203. Concerning the office of the respondent parents’ counsel in cases of alleged child abuse or neglect. Vote: 35 yes and 0 no.

Thursday, May 1

Passed on 3rd Reading:

  • HB 14-1303. Concerning the receipt of public testimony from remote locations around the state by legislative committees, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • HB 14-1338. Concerning planning for the effective use of Colorado’s regional centers for persons with intellectual disabilities, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1368. Concerning the transition of youth ages eighteen through twenty-one who have intellectual and developmental disabilities to the adult program of services for persons with intellectual and developmental disabilities, and, in connection therewith, making and reducing appropriations. Vote: 35 yes and 0 no.
  • SB 14-193. Concerning conforming Colorado law on location information with the Fourth Amendment as interpreted by the United States Supreme Court in United States v. JonesVote: 35 yes and 0 no.
  • SB 14-201. Concerning reestablishing a child protection ombudsman advisory work group to develop a plan for accountable autonomy for the child protection ombudsman program. Vote: 35 yes and 0 no.
  • HB 14-1315. Concerning the enactment of certain model acts adopted by the national association of insurance commissioners, and, in connection therewith, enacting the credit for reinsurance model act and the portion of the insurer receivership model act that governs netting agreements. Vote: 34 yes and 1 no.
  • SB 14-212. Concerning clarifying changes to the provisions related to best practices in bond setting. Vote: 27 yes and 8 no.
  • SB 14-208. Concerning the reinstatement of the authority for a veteran who has not been dishonorably discharged to practice professionally. Vote: 33 yes and 2 no.
  • HB 14-1357. Concerning in-home support services provided in the Medicaid program, and, in connection therewith, making and reducing appropriations. Vote: 29 yes and 6 no.
  • HB 14-1358. Concerning continuation of in-home support services, and, in connection therewith, authorizing in-home support services for spinal cord injury waiver pilot program participants. Vote: 34 yes and 1 no.
  • HB 14-1348. Concerning an extension of the effective date of the amended “retail sale” sales tax definition adopted in House Bill 13-1295 to take effect only if congress enacts an act that authorizes states to require certain retailers to pay, collect, or remit state or local sales taxes. Vote: 33 yes and 2 no.

Friday, May 2

Passed on 3rd Reading:

  • HB 14-1372. Concerning unauthorized advertising for adoption purposes. Vote: 35 yes and 0 no.
  • HB 14-1161. Concerning interstate rail service in southern Colorado, and, in connection therewith, creating a commission and a fund for the purposes of encouraging Amtrak to continue its southwest chief rail line service at all current Colorado stops, expanding such service to include a stop in Pueblo, studying the potential benefits of expanding such service to include a stop in Walsenburg, and making an appropriation. Vote: 26 yes and 9 no.
  • HB 14-1173. Concerning continuation of the controlled substances abuse act, and, in connection therewith, the treatment of controlled substances abuse and making an appropriation. Vote: 23 yes and 12 no.
  • HB 14-1283. Concerning modifications to the electronic prescription drug monitoring program, and, in connection therewith, making an appropriation. Vote: 24 yes and 11 no.
  • SB 14-180. Concerning the Colorado dental health care program for low-income seniors, and, in connection therewith, requiring a post-enactment review of the implementation of this act, and making and reducing appropriations. Vote: 24 yes and 11 no.
  • SB 14-211. Concerning an Alzheimer’s disease center, and, in connection therewith, making an appropriation. Vote: 35 yes and 0 no.
  • HB 14-1349. Concerning the creation of an exemption from property taxes for qualifying business entities controlled by nonprofit organizations that are formed for the purpose of qualifying for federal tax credits. Vote: 33 yes and 2 no.
  • HB 14-1371. Concerning property taxation of oil and gas leaseholds and lands, and, in connection therewith, specifying that the wellhead is the point of valuation and taxation for such leaseholds and lands. Vote: 34 yes and 1 no.
  • HB 14-1214. Concerning an increase in the penalties for certain offenses committed against an emergency medical service provider, and, in connection therewith, making an appropriation. Vote: 33 yes and 2 no.
  • HB 14-1334. Concerning the petroleum cleanup and redevelopment fund. Vote: 33 yes and 2 no.

Stay tuned for 10 Bills of Interest.

 

Tenth Circuit: Statute of Limitations Began to Run when Formal Diagnosis Received

The Tenth Circuit Court of Appeals issued its opinion in Bayless v. United States on Monday, April 28, 2014.

In 1997, Carolyn Bayless took a seasonal position with the Utah Division of Wildlife, where she traveled to remote locations around Utah to conduct various wildlife studies. Unbeknownst to her at the time, the U.S. Army was conducting chemical and biological weapons testing near two of the sites Bayless visited for the wildlife studies. In October 1997, approximately one month after completing her seasonal position, Bayless started experiencing episodic blurred vision and lip numbness. She sought medical treatment from several providers but did not find a reason for the symptoms. Her symptoms continued to worsen and she continued to seek medical treatment, but no doctor could find a reason for her neurological symptoms. After years of worsening symptoms and treatment trials, Bayless began to tell doctors that she believed her symptoms could have been caused by exposure to toxins she had experienced during her work with the Utah Department of Wildlife. In 2005, Bayless became convinced that her symptoms were caused by exposure to sarin nerve gas and other biological weapons that had been tested at the Army facilities near the location of Bayless’ work in 1997. In 2007, Dr. William Rea of the Environmental Health Center in Dallas, Texas, diagnosed Bayless with several conditions related to exposure to toxic chemicals. He reported that he “firmly believe[d] that in all medical probability this patient’s incapacitation is a result of her exposure to pesticides, heavy metals, molds, and mycotoxins in the workplace.”

Bayless filed an administrative claim on January 31, 2008, alleging that the activities of United States Army on its Dugway facility caused her to sustain permanent neurological and other injuries. On May 29, 2009, Bayless filed a complaint under the Federal Tort Claims Act (FTCA) in the United States District Court for the District of Utah. On December 2, 2011, the government moved for summary judgment to dismiss Bayless’ complaint for lack of subject-matter jurisdiction. The government argued that Bayless failed to present her administrative claim within two years of the accrual of that claim pursuant to 28 U.S.C. § 2401(b). After hearing argument on April 19, 2012, the district court granted the motion on May 17, 2012. The district court concluded that Bayless acquired enough knowledge by May 2005 for her claim to begin to accrue and also that her claim was not protected by the doctrine of equitable tolling.

The Tenth Circuit addressed the question of when the two-year statute of limitations under the FTCA began to run. Although Bayless’ symptoms began in 1997, she did not know of the existence of the Army testing sites until 2005, and was not formally diagnosed by a physician until 2007, despite numerous medical exams and tests. The Tenth Circuit held that the formal diagnosis began the statute of limitations and therefore her claim was timely. The opinion of the district court was reversed and remanded.

Tenth Circuit: Retaliation Not Proved by Sheer Volume of Instances of Failure to Promote

The Tenth Circuit Court of Appeals issued its opinion in Davis v. Unified School District 500 on Monday, May 5, 2014.

Charles Davis has been a custodian for Unified School District 500 since 1991. In 2007, he was caught sunbathing nude on the roof of the elementary school at which he worked. The school board considered terminating him but decided instead to demote him from head custodian and suspend him without pay for 30 days. From 2008 to 2012, Davis applied for seven head custodian positions within the district but was not selected for any of them. In 2008, 2010, and 2011, he filed claims with the EEOC, alleging racial discrimination originally and then adding retaliation for filing EEOC claims. In January 2012, Davis filed suit against the district and Stephen Vaughn, the Director of Human Resources for the district, alleging retaliation by Vaughn, retaliation by the district, and delayed payment of overtime pay. The district court entered summary judgment for Vaughn, which Davis appealed to the Tenth Circuit.

The Tenth Circuit noted that the sheer volume of promotion denials does not indicate a common purpose to discriminate, especially when independent decision-makers were involved in each promotion denial. Davis offered no direct evidence of discrimination, so his claims could only proceed on a prima facie showing of retaliation, which requires that he prove three criteria have been met: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the employment action. Davis could not prove that he suffered an adverse employment action since the hiring decisions for head custodian at the various schools were made by the principals of those schools. There was no evidence that Vaughn or anyone else informed the principals of Davis’ adverse employment action in order to influence the hiring decision.

The summary judgment in favor of Vaughn was affirmed.

Tenth Circuit: Unpublished Opinions, 5/5/2014

On Monday, May 5, 2014, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Mayberry v. Rios

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

College Affordability Act, Budget Bill, and Other Bills Signed by Governor

As the legislature winds down the 2014 legislative session, Governor Hickenlooper continues to sign legislation that passes both houses. To date, the governor has signed 165 bills and vetoed two. He signed seven bills into law on April 25, 2014, he signed the Long Bill (budget bill) on April 30, he signed the College Affordability Act on May 1, and he signed nine bills on May 2. These are summarized here.

April 25, 2014

  • HB 14-1092 – Concerning the Voluntary Contribution Designation Benefitting the Colorado Youth Conservation Corps Fund that Appears on the State Individual Income Tax Return Forms, by Rep. Edward Vigil and Sen. John Kefalas. The bill creates a new income tax donation checkoff to benefit the Colorado Youth Conservation Corps.
  • HB 14-1107 – Concerning the Authority of the Department of Revenue to Offer Taxpayers the Option to Receive Electronic Notices, by Rep. Max Tyler and Sen. Linda Newell. The bill allows the Department of Revenue to transmit taxpayer notices electronically.
  • HB 14-1176 – Concerning the State Audit Cycle of the Emissions Program for Motor Vehicles, by Rep. Su Ryden and Sen. Lois Tochtrop. The bill changes the state audit cycle of the emissions program from once every three years to once every five years.
  • HB 14-1277 – Concerning Eligibility Requirements for Recipients of Grants from the Military Family Relief Fund, by Rep. Jovan Melton and Sen. Nancy Todd. The bill opens eligibility for grants from the Military Family Relief Fund to families of Colorado National Guard members and families of military personnel called to duty by executive order of the governor.
  • HB 14-1286 – Concerning Authorization for the State Treasurer to Loan to the State Historical Society for Public Display Items Presented to the Governor as Gifts to the State, by Rep. Jovan Melton and Sen. Pat Steadman. The bill allows the treasurer to loan items that were gifts to the state to the History Colorado and museums for display.
  • HB 14-1289 – Concerning the Reinvestment of Unused Governmental Moneys Held by a Financial Institution that are in Excess of the Amount Insured by the Federal Deposit Insurance Corporation in Accounts in Other Financial Institutions, by Rep. Frank McNulty and Sen. Mike Johnston. The bill specifies that monies in excess of the amount protected by the FDIC may be deposited in other accounts rather than used for Certificates of Deposit.
  • HB 14-1299 – Concerning the Repeal of the Six-Year Limitation on Applying a Salvage Brand to a Motor Vehicle Whose Cost of Being Repaired Exceeds the Value of the Vehicle Without the Recent Damage, by Rep. Max Tyler and Sen. Nancy Todd. The bill removes the requirement that a vehicle be under six years old when the damage occurs in order to be considered a salvage vehicle.

April 30, 2014

  • HB 14-1336 – Long Appropriations Bill, by the Joint Budget Committee. This bill presents the budget for fiscal year 2014-2015.

May 1, 2014

  • SB 14-001Concerning Making College Education More Affordable by Imposing Further Restrictions on Tuition Increases, Increasing Financial Aid, and Increasing Operating Support for Each Governing Board of a State-Supported Institution of Higher Education by Eleven Percent and, In Connection Therewith, Making an Appropriation, by Sens. Cheri Jahn & Andy Kerr and Reps. Leroy Garcia & Mike McLachlan. The bill caps the annual increase in the rate of undergraduate in-state tuition for state supported institutions of higher education and appropriates $100,050,000 to the Department of Higher Education to support various financial aid programs and for the College Opportunity Fund and fee-for-service contracts.

May 2, 2014

  • SB 14-027 – Concerning Criminal History Background Checks for Professionals who Have the Authority to Appear in Court, and, in Connection Therewith, Making an Appropriation, by Sen. Lucia Guzman and Rep. Pete Lee. The bill authorizes the Colorado Supreme Court to request CBI criminal background checks as part of the licensing process for attorneys.
  • SB 14-114 – Concerning Expanding Access for All Students to Colorado State University – Global Campus, by Sen. Nancy Todd and Reps. Millie Hamner & Chris Holbert. The bill allows CSU Global Campus to offer complete degree programs online.
  • SB 14-135 – Concerning the Repeal of Certain Provisions Concerning the Purchasing of Firearms in States that are Contiguous to Colorado, by Sen. Greg Brophy and Rep. Jared Wright. The bill generally allows purchases of firearms in states contiguous to Colorado and generally allows gun sales to residents of contiguous states.
  • SB 14-146 – Concerning Information that the Department of Transportation May Consider when Conducting a Traffic Investigation for the Purpose of Determining the Appropriate Speed Limit for a Portion of a State Highway for which a Municipality has Proposed a Speed Limit Alteration, by Sen. Gail Schwartz and Rep. Jim Wilson. The bill allows a local government that is proposing a speed limit adjustment to submit its own traffic data and  engineering reports.
  • HB 14-1193 – Concerning Requirements Governing the Imposition of a Fee for the Research and Retrieval of Public Records Under the “Colorado Open Records Act,” by Rep. Joseph Salazar and Sen. John Kefalas. The bill imposes certain restrictions on fees charged for the retrieval of records under the Colorado Open Records Act.
  • HB 14-1203 – Concerning Funding to Maintain the Infrastructure for the Digital Trunked Radio System, and, in Connection Therewith, Making an Appropriation, by the Joint Budget Committee. The bill makes a budget appropriation to replace legacy radio equipment and hardware at radio tower sites.
  • HB 14-1302 – Concerning the Addition of a Judgment Against a Debtor or Transferee who Acts with Actual Intent as an Available Remedy for a Creditor in a Fraudulent Transfer Action, by Rep. John Buckner and Sen. Mike Johnston. The bill provides an additional remedy for creditors when a debtor fraudulently transfers property with the intent to hinder, delay, or defraud the creditor.
  • HB 14-1335 – Concerning Campaign Contribution Limits that are Applicable to Candidate Committees for Candidates who are not Affiliated with a Major Political Party, by Rep. Dominick Moreno and Sen. Matt Jones. The bill allows write-in, unaffiliated, or minor party candidates to accept contributions up to the aggregate contribute limit for the election cycle.
  • HB 14-1342 – Concerning Transfers of Moneys Related to Capital Construction, by the Joint Budget Committee. The bill makes three transfers to the capital construction fund in fiscal year 2014-15.

For a list of Governor Hickenlooper’s legislative decisions, click here.

Tenth Circuit: Fraudulent Concealment of Profits Supported Convictions for Mail Fraud

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sharp on Monday, April 28, 2014.

Co-defendants Sharp and Griggs were convicted of mail fraud and conspiracy to commit mail fraud. They appealed from their convictions. Griggs also challenged a $500,000 fine imposed by the district court. The judgments were affirmed.

Griggs founded Disaster Restoration, Inc. (DRI) in 1986 and became its owner and CEO. DRI was a Colorado corporation that restored and repaired commercial and residential properties in Colorado. In 2003, Griggs hired Sharp to be the CEO and operating manager of DRI. Both Griggs and Sharp established company policies and trained and supervised DRI project managers and estimators. In approximately 2004, Griggs and Sharp began instructing DRI employees who prepared DRI’s estimates to add 20-30% to the price that DRI’s subcontractors were charging DRI. As a result, the estimate sent by DRI to an insurance company would, in the case of a line item relating to subcontractor work, list an amount 20-30% higher than the subcontractor’s bid for the work. Griggs and Sharp also instructed their employees to obtain two invoices from their subcontractors: one showing the 20-30% increase and one reflecting the actual amount paid to the subcontractor. Subsequently, Griggs, Sharp, and several other employees of DRI were charged with mail fraud related to these inflated invoices. Griggs and Sharp were convicted and this appeal followed.

Sharp appealed on five issues: two sufficiency-of-the-evidence issues, two instruction-related issues, and a challenge based on the Tenth Circuit decision in United States v. Cochran, 109 F.3d 660 (10th Cir. 1997). Sharp’s arguments challenging his convictions were based on the fact that the evidentiary standard referenced invoiced amounts, and he had invoices for the amounts billed. Because of the fraudulent nature of the inflated invoices, however, these arguments do not stand.

Griggs raised the same issues as Sharp on appeal and also appealed the $500,000 fine imposed on him.  Like Sharp, Griggs relied on Cochran to reverse his convictions. However, the Tenth Circuit distinguished Cochran because in the DRI case, the fraudulent invoices were prepared as an affirmative act to conceal DRI’s profits from the subcontractor line item invoices submitted to the insurance companies. The Tenth Circuit affirmed the lower court’s judgment because of the fraud perpetrated by Griggs and Sharp. Griggs’ appeal of the fine was unsuccessful because his counsel failed to properly preserve the issue for appeal and there was no plain error.

Tenth Circuit: Plain Error Reversal Required Due to Expert’s Impermissible Testimony Regarding Defendant’s Untruthfulness

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, April 28, 2014.

Stanley Hill appealed his conviction of several charges related to a robbery of a bank in Tulsa, Oklahoma. Stanley Hill and his brother, Vernon Hill, were charged with bank robbery after a tracking device on stolen bills led police to Stanley’s father’s house, where Stanley and Vernon were arrested. Stanley claimed that he had spent the night at his girlfriend’s house and was sleeping at the father’s house at the time the robbery occurred. A Tulsa police officer and an FBI agent, Agent Jones, conducted a taped interview of Stanley in which he denied involvement in the robbery.

Agent Jones testified at trial as a qualified expert. His testimony discussed his theory of the case, that Stanley had been the getaway driver during the robbery. Agent Jones also testified that he had been specially trained to detect untruthfulness, and that in his opinion Stanley was not truthful during testimony. He offered several points to emphasize his opinion of Stanley’s untruthfulness.

Although a contemporaneous objection was not made to Agent Jones’ testimony, the Tenth Circuit conducted a plain error review and determined that the testimony regarding Stanley’s truthfulness was impermissible. Stanley did not argue that Agent Jones was unqualified to testify under FRE 702, but rather that the subject matter of his testimony—the credibility of another person—was outside the scope of Rule 702. The Tenth Circuit agreed, noting that such testimony usurps the function of the jury, is not helpful to the jury, and can unduly influence a jury because a credible expert holds more authority to the average juror than a defendant.

The Tenth Circuit determined that the error was not harmless. The prosecution did not have a strong case against Stanley, and much of their evidence against him hinged on the proposition that his testimony was false. The Tenth Circuit acknowledged that Stanley showed that there was a reasonable probability that he would not have been convicted without Agent Jones’ testimony. The Tenth Circuit issued a warning to the defense bar that reversal in the absence of contemporaneous objection is a rare exception rather than the rule, but Stanley satisfied all four prongs of the plain error standard and the case was reversed and remanded with instructions for vacation of the sentence and convictions.

Tenth Circuit: IRS Notices are Untimely if IRS Does Not Follow Administrative Requirements of Internal Revenue Code

The Tenth Circuit Court of Appeals issued its opinion in Jewell v. United States on Monday, April 28, 2014.

The IRS issued four summonses to banks in the Eastern and Western Districts of Oklahoma for records involving nursing homes owned by Mr. Sam Jewell. Under federal law, the IRS had to notify Mr. Jewell at least 23 days before the examination date. The IRS failed to timely provide notice to Mr. Jewell, and he filed petitions to quash the summonses in the district courts for the Eastern and Western Districts of Oklahoma. The Eastern District granted Mr. Jewell’s motion to quash, while the Western District denied it.

The Tenth Circuit, creating a circuit split, ruled that the U.S. Supreme Court’s decision in United States v. Powell, 379 U.S. 48 (1964), required it to rule in favor of Mr. Jewell because the plain language of 26 U.S.C. § 7609(a)(1) mandated 23 days’ notice by the IRS prior to enforcing its summonses. The ruling of the Eastern District of Oklahoma was affirmed and the ruling of the Western District was reversed.

Tenth Circuit: Defendant Not Entitled to New Trial Because No Error in Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Smalls on Monday, April 28, 2014.

Defendant Smalls was in pre-trial custody at the Doña Ana County Detention Center in New Mexico awaiting trial on charges of assaulting his ex-wife. He had three cellmates: Gantz, Cook, and Melgar. Gantz had provided information to law enforcement, and, according to testimony, Smalls considered Gantz a “snitch” and developed a plan to kill him. Smalls reportedly told Cook and Melgar that they could suffocate Gantz with a plastic bag and make it look like he had died of an asthma attack. They carried out the plan – Melgar held the bag over Gantz’s face while Cook and Smalls restrained him.

Cook discussed the murder with another inmate who, unbeknownst to him, was wearing a wire. Melgar suffered severe psychological trauma from the murder and began to cut himself, claiming to have seen Gantz’s ghost. He confessed to killing Gantz and gave a videotaped statement to the FBI describing the circumstances. This confession was largely consistent with Cook’s account to the other inmate. Cook and Melgar testified against Smalls, and he was convicted of five federal offenses: (1) conspiracy to retaliate against a witness; (2) retaliating against a witness; (3) conspiracy to tamper with a witness; (4) tampering with a witness; and (5) killing a person aiding in a federal investigation.

Smalls asserted four classes of error that he argued constitute cumulative error, entitling him to a new trial. His contentions of error were (1) evidentiary error, (2) prosecutorial misconduct, (3) jury instructions, and (4) sufficiency of the evidence. The Tenth Circuit reviewed each point of error separately and determined that the district court had proceeded correctly. The Tenth Circuit determined that because the district court had not committed error, no cumulative error analysis was necessary, and the judgment of the district court was affirmed on all counts.

Tenth Circuit: Judgment Affirmed on Several Disputed Issues but Remanded for Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Thomas on Tuesday, April 29, 2014.

Defendant Thomas was charged in federal court with selling crack cocaine and maintaining a place to manufacture, distribute, or use a controlled substance. He went to trial 146 days after his arraignment. At the trial, an informant (“L.H.”) testified that she had bought crack cocaine three times from Thomas. The jury found Thomas guilty on: (1) three counts of possession of crack cocaine with intent to distribute, and (2) two counts of using or maintaining a place for the manufacture or distribution of crack cocaine. With this finding, the court convicted Thomas and sentenced him to five concurrent prison terms of 130 months.

Thomas raised nine issues on appeal: (1) violation of the Speedy Trial Act; (2) admissibility of L.H.’s testimony; (3) admissibility of drug evidence; (4) incorrect terminology used in jury instructions; (5) sufficiency of the evidence; (6) cumulative error; (7) sentencing based on unproven convictions; (8) sentencing based on conduct that was not involved in the convictions; and (9) whether the district court should have used a lower guideline range based on Thomas’ status as a minor participant. The Tenth Circuit addressed each contention in turn and affirmed all but the seventh issue, sentencing based on unproven convictions.

The Tenth Circuit determined that there was no Speedy Trial Act violation because certain blocks of time were excluded from the time between Defendant’s arraignment and trial. The amount of time between arraignment and trial that was not excluded was 61 days, therefore there was no speedy trial violation.

The Tenth Circuit reviewed the admissibility of L.H.’s testimony and determined that it was admissible as relevant. It also determined that the drug evidence was properly submitted and that the jury instructions were not deficient, so there was no need to address Defendant’s contentions that the evidence was not sufficient to support his conviction or that there was cumulative error.

The Tenth Circuit addressed Defendant’s argument that his sentence was based on unproven convictions and agreed. The government failed to present evidence documenting five of the convictions on which Defendant’s sentence was based, and Defendant’s criminal history score of 12 was incorrectly calculated. The Tenth Circuit determined that the government should not be allowed to present evidence of the undocumented convictions upon remand, and ordered the district court to recalculate the sentence based on the existing record.

The Tenth Circuit reviewed Defendant’s final two claims and determined that there was no further error.

Tenth Circuit: Unpublished Opinions, 5/2/2014

On Friday, May 2, 2014, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

United States v. Gramajo

United States v. Comer

Duran v. Attorney General of the State of New Mexico

Robles v. RMS Management Solutions LLC

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