August 22, 2019

Archives for June 2014

Colorado Appellate Rules Amended by Colorado Supreme Court

On Wednesday, June 25, 2014, the Colorado State Judicial Branch announced Rule Change 2014(08), amending several of the Colorado Appellate Rules. The rule change was adopted June 23, 2014, effective immediately.

Most of the changes to the Colorado Appellate Rules were minor, including typographical corrections and changes to reflect current procedures regarding filing practices. Some changes amended the Rules to reflect Rule of 7 changes.

For the full text of the rule change, click here.

Garen Drew Gervey of Sterling Appointed to 13th Judicial District Nominating Commission

On Wednesday, June 25, 2014, the governor’s office announced Governor Hickenlooper’s appointment of Garen Drew Gervey of Sterling to the Judicial Nominating Commission for the Thirteenth Judicial District. Each of Colorado’s 22 judicial districts has a nominating commission that evaluates candidates for judicial vacancies and recommends nominees for the governor to appoint.

Members of the nominating commission are appointed for six year terms. Nominating commissions for most judicial districts comprise four non-attorneys and three attorneys, no more than four of which can have the same political affiliation. Gervey was appointed to serve as an unaffiliated attorney. For more information about the appointment, click here.

Tenth Circuit: Unpublished Opinions, 6/27/2014

On Friday, June 27, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Scavetta v. Dillon Companies, Inc.

Fisher v. Colorado Department of Corrections and State Employees Below

Van De Weghe v. Chambers

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: No Probable Cause to Conduct Vehicle Search when Dog Jumped Into Vehicle Without Alerting

The Tenth Circuit Court of Appeals issued its opinion in Felders v. Malcom on Friday, June 20, 2014.

Sherida Felders and her two young passengers were traveling through Utah on her way from California to Colorado when she was stopped by Officer Bairett for speeding. Bairett observed that Felders appeared nervous, she had an air freshener in her car, and she had a religious license plate holder, which made him suspicious that she was transporting drugs. He called for a K-9 unit to conduct a dog sniff, and Officer Malcom and dog Duke responded. Felders did not consent to a search of her vehicle, but the dog was allowed legally to sniff the outside of the vehicle without consent. As Felders and her passengers exited the vehicle, Bairett held the doors open and did not close them prior to the sniff. Duke immediately jumped inside the car without alerting and began to sniff the inside of the vehicle. After a two-hour search, no drugs were found in the vehicle. Felders and the two passengers subsequently brought this action, alleging violations of Fourth Amendment violations under 28 U.S.C. § 1983. Officer Malcom moved for summary judgment on the unlawful search claim on qualified immunity grounds. The district court denied summary judgment and this interlocutory appeal followed.

The district court found as a matter of law that Malcom could not establish probable cause to search the car prior to conducting the dog sniff and that material facts were in dispute regarding (1) whether Malcom’s canine, Duke, alerted prior to jumping into the vehicle; and (2) whether Malcom facilitated Duke’s entry into the vehicle prior to establishing probable cause. The Tenth Circuit agreed with the district court that Malcom did not have probable cause to search the vehicle prior to conducting the sniff. The facts provided by Bairett provided, at most, reasonable suspicion justifying the detention, and Malcom did not independently find any further evidence of wrongdoing.

As to whether Malcom facilitated Duke’s entry into the vehicle, the Tenth Circuit found that genuine issues of material fact existed as, precluding a grant of summary judgment on qualified immunity grounds as a matter of law. The Tenth Circuit noted that clearly established precedent prevented the officers from searching the inside of the vehicle until the dog alerted on the exterior sniff. Because the dog jumped into the car and it was not clear whether Malcom’s actions led the dog to enter the vehicle, summary judgment was inappropriate. The Tenth Circuit affirmed the district court’s denial of summary judgment to Malcom on qualified immunity grounds.

Tenth Circuit: Insurance Exclusion for Intentional Acts Must Include Intent to Harm

The Tenth Circuit Court of Appeals issued its opinion in Mid-Continent Casualty Co. v. Circle S Feed Store, LLC on Tuesday, June 17, 2014.

I&W, Inc. owned a solution mining operation in Carlsbad, NM, and was insured by Mid-Continent Casualty Co, who provided CGL and umbrella policies to I&W. Solution mining is a process where fresh water is injected into underground salt formations, which creates brine water. The brine water is then extracted and sold for use in the oil and gas industries, creating an underground cavern. I&W’s mining operations created a cavern so dangerously large that they infringed upon the subsurface property of neighboring Circle S Feed Store and caused damage to the surface property. Circle S filed suit against I&W in state court, where it prevailed and was awarded $703,000 in compensatory damages and $300,000 in punitive damages. I&W subsequently declared bankruptcy.

During the pendency of the state court action, Mid-Continent sought a declaratory judgment in federal court that it owed I&W no duty of indemnification under the insurance policies. Both Mid-Continent and Circle S filed motions for summary judgment. The district court determined that (1) the damages were caused by an “occurrence” within the meaning of the policy; (2) the policy’s “intentional injury” exclusion did not apply; (3) the state court did not award judgment for diminution in value; and (4) nonetheless, indemnification was precluded by an exclusion in one of the umbrella policies for subsurface mining operations. The district court granted summary judgment for Mid-Continent based on the fourth point.

Circle S filed a motion to alter or amend the final judgment, arguing that the district court erred in holding the exclusion applied to the primary insurance policies and seeking clarification. The district court declined to revise its opinion but declared that it would have found coverage but for the exclusion. Circle S then appealed to the Tenth Circuit.

The Tenth Circuit examined the language of the policies and exclusions and determined that the district court had erroneously broadened the scope of the exclusion. The exclusion unambiguously applied to the umbrella policies but it was error to also apply it to the primary policies, since umbrella policies are separate and distinct from primary policies and serve different purposes. The Tenth Circuit then turned its focus to the district court’s resolution of the remaining issues. The district court had stated that but for the exclusion it would have found coverage based on three criteria: “(1) the subsidence I&W caused was an ‘occurrence’ within the
meaning of the policies; (2) the policies’ ‘intentional injury’ exclusion did not apply to exclude coverage; and (3) the damages awarded to Circle S were for a ‘physical injury to tangible property,’ which is covered, rather than for pure diminution in value, which is not.” The Tenth Circuit examined each prong.

Although Mid-Continent argued that the subsurface mining operations were not an “occurrence” under the policy language because I&W knew that its mining operations would create a cavern, the Tenth Circuit disagreed, noting that I&W did not know that the underground cavern had grown dangerously large or was infringing on the neighboring property. This also disposed of the “intentional injury” question, as I&W did not intend to create a dangerous cavern. Finally, the Tenth Circuit assessed whether the awarded damages were for physical injury to tangible property or pure diminution in value, and determined that the diminution in value suffered by Circle S was caused by the tangible injury of the subsurface cavern.

The district court’s judgment was affirmed regarding the application of the exclusion to the umbrella policies, but reversed as to the primary policies and remanded for further proceedings consistent with the Tenth Circuit’s holding.

Colorado Court of Appeals: Announcement Sheet, 6/26/2014

On Thursday, June 26, 2014, the Colorado Court of Appeals issued no published opinion and 27 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, 6/26/2014

On Thursday, June 26, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Johnson

Larkins v. Colvin

Parker v. Evans

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


Enlightenment Made Simple (Part Six): More About Pivoting

rhodes(For more about entrepreneurial pivoting, check out The Art of the Pivot in the May/June 2014 issue of Inc. Magazine.)

We rarely seek enlightenment and the things we want from it — peace, meaning, fulfillment, and all the rest — for their own sake. We’re not in the habit of doing nice things like that for ourselves. Instead, we justify our quest by embracing some noble and idealistic and altruistic vision. We’ll make life better for ourselves, but we’ll also help someone else while we’re at it. Thinking that way gets us off the dime, makes us willing to defy the odds and the gods.

It’s a good way to start, but it won’t sustain us, especially when the resistance we meet makes it obvious why we haven’t done this before, or why we failed when we tried. Not that there’s anything wrong with wanting to make an impact in the world, but those ambitions take their cues from outside ourselves: we’re focused on changing something, instead of changing someone — namely the person who lives inside our own skin. As long as we maintain that external orientation, our status-quo-loving and change-resistant brains will be quick to turn tail when things turn tough.

And they will turn tough. Enlightenment is an inside job that’s harshly unsympathetic to whether the externals are lining up to support our grand visions. In fact, it’s usually the case that we’ve barely taken a few baby steps when the path to Paradise plunges us into the cavernous muck where ruined dreams rot.

We need to pivot in order to move on from that place. In physical terms, pivoting is rotating around a still central axis. In entrepreneurial terms, pivoting is what we do when we find out the market doesn’t want our brilliant ideas. In enlightenment terms, pivoting is what we do when we find ourselves wallowing in the mess we created in the name of doing something awesome with our lives. Entrepreneurial and enlightened pivoting rotate around the center of what we’re really after and who we really are. The externals spin and blur, but not the core.

Our enlightenment quest takes us to that core. Along the way, we detach from ego, which is necessary because, if truth be told, our plans to save the world were probably just a spiffed-up version of ego. Ego is immobilized down in that creepy chasm; it becomes dead weight we need to jettison if we’re going to make it through. And often, when we get rid of ego, the vision goes with it.

That doesn’t mean our grand visions won’t ever come to fruition. They might, but you can bet it won’t be the way we originally envisioned, or because ego wrangled them into being. If they come to pass at all, it will be because they resonate deeply with our core selves. Find that core, and pivoting is both possible and powerful: execute that one swift, nifty move, and suddenly we’re unstuck and unleashing whole new worlds of creativity that make surprising things happen.

Then another wonderful thing happens: enlightenment hands us our bag of swag, full of peace, freedom, and all the rest. And we find ourselves living the truth of that inspirational saying that it’s not about making change happen, it’s about becoming the change we wish to make.

And by the way, was that a paraphrase just now of something Gandhi said? Or was it Thoreau? Or maybe Nelson Mandela? If you’re wondering, you’ll enjoy this article about what they really said, and where those inspirational sayings really come from.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on that topic will appear in an upcoming article in the August and September issues of The Colorado Lawyer. His new ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned, which are the foundation of much of what he writes about here. Follow this link for a FREE book download (available in all formats — phone, Kindle, as a pdf. etc.). You can email Kevin at


Tenth Circuit: Utah’s Ban on Same-Sex Marriage and Refusal to Recognize Same Is Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Kitchen v. Herbert on Wednesday, June 25, 2014.

In 2004, Utah legislators and citizens amended their statutes and state constitution (collectively referred to in the opinion as Amendment 3) to ensure that Utah “‘will not recognize, enforce, or give legal effect to any law’ that provides ‘substantially equivalent’ benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex.” Three same-sex couples filed suit under 42 U.S.C. § 1983 against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County, challenging the constitutionality of the two statutes and the constitutional provision. The plaintiffs sought a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.

The district court granted summary judgment for the plaintiffs, holding that the statutes and amendment violated the fundamental right to liberty and denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. The court permanently enjoined enforcement of the provisions. The U.S. Supreme Court stayed the district court’s decision pending appeal to the Tenth Circuit.

The Tenth Circuit first considered the issue of standing because the Salt Lake County Clerk had not appealed the district court’s decision. The court held that because the governor and attorney general have actual supervisory power to compel county clerks to comply with Amendment 3, they had standing to appeal.

Next, the court held that the Supreme Court’s 1972 summary dismissal of Baker v. Nelson was not controlling precedent, especially after United States v. Windsor. In Baker, the Court dismissed, for lack of a substantial federal question, the appeal of a decision affirming Minnesota’s ban on same-sex marriage. Judge Kelly dissented from the portions of this decision regarding Baker v. Nelson and holding that the Fourteenth Amendment requires Utah to permit same-sex marriage and to recognize same-sex marriages entered into in other states.

In holding that the right to marry is a fundamental liberty interest, the court rejected the arguments that only opposite-sex marriage is a fundamental right and marriage is only a fundamental right because of procreation. The court also rejected the argument that the definition of marriage by its nature excludes same-sex couples. In describing a liberty interest, “it is impermissible to focus on the identity or class-membership of the individual exercising the right.” Fundamental rights do not change based on who is seeking to exercise them.

After deciding that the right to marry is a fundamental liberty, the court applied strict scrutiny to Amendment 3. The appellants contended Amendment 3 “furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.” The court found Amendment 3 was not narrowly tailored to further the first three interests as the state permitted marriage by many nonprocreative couples. It noted these same arguments were rejected in Windsor. As to the fourth alleged interest, the court pointed out that public opposition cannot provide cover for a violation of fundamental rights.

The Tenth Circuit held that “under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. . . . A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

The court affirmed the district court and stayed its mandate pending the disposition of any petition for writ of certiorari.

Tenth Circuit: Unpublished Opinions, 6/25/2014

On Wednesday, June 25, 2014, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Mata-Aguilar v. Holder

Robledo v. West

Gonzales v. Garcia

Hodges v. Colvin

Soboroff v. Doe

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

Hon. James Denvir to Retire from Archuleta County Court

On Monday, June 23, 2014, the Colorado State Judicial Branch announced the retirement of Hon. James E. Denvir of the Archuleta County Court, effective January 13, 2015.

Judge Denvir was appointed to the Archuleta County Court bench in Pagosa Springs in 1995. He presides over a criminal and civil docket. He also provides arbitration and mediation services for civil disputes through a private practice. Prior to his appointment, Judge Denvir worked for California Rural Legal Assistance; as an administrative law judge in Sacramento, California; and in solo practice in Pagosa Springs. He received his undergraduate degree from Notre Dame in 1969 and his juris doctorate in 1973 from the University of Southern California Law Center.

Applications are being accepted for the vacancy. Eligible applicants must have earned a high school diploma or equivalent and must be qualified electors of Archuleta County. Application forms are available on the State Judicial website and also from Justice Brian Boatright, the ex officio chair of the Sixth Judicial District Nominating Commission. The original signed application must be filed with the ex officio chair no later than 4 p.m. on July 30, 2014. Anyone wishing to nominate another person must do so no later than 4 p.m. on July 23, 2014.

For more information about the vacancy and for contact information for members of the nominating commission, click here.

Colorado Supreme Court: Threatening Statements Not Protected by Psychologist-Patient Privilege

The Colorado Supreme Court issued its opinion in In re People v. Kailey on Monday, June 23, 2014.

Who May Not Testify Without Consent—CRS § 13-90-107(1)(g)—Civil Liability—Mental Health Providers—Duty to Warn—CRS § 13-21-117(2).

In this original CAR 21 proceeding, the Supreme Court held that if a mental health treatment provider believes that statements made by a patient during a therapy session threaten imminent physical violence against a specific person or persons, and accordingly trigger that provider’s legal duty to warn under CRS §13-21-117(2), the patient’s threatening statements are not protected by the psychologist–patient privilege provided by CRS § 13-90-107(1)(g). Consequently, the Court also held that the trial court erred when it excluded threatening statements made by a patient to a mental health treatment provider on the ground that the statements were barred by the psychologist–patient privilege. The rule was made absolute and the case was remanded for further proceedings.

Summary and full case available here.