May 21, 2019

Archives for August 11, 2014

Judge Evaluations Available Online for 146 Judges Standing for Retention

The Colorado State Judicial Branch announced last week that judicial evaluations are now available online for Colorado’s 146 judges standing for retention in 2014. These evaluations were carefully prepared by Colorado’s Commission on Judicial Performance and local judicial performance commissions, and will be mailed to all voters this fall in the “Blue Book.”

The Commissions on Judicial Performance were created by Colorado’s legislature in 1988 in order to provide fair, responsible, and constructive evaluations of Colorado’s trial court and appellate judges and justices. Local judicial performance commissions consist of four attorneys and six non-attorneys. Volunteer commissioners are appointed by the Colorado Chief Justice, Governor, President of the Senate, and Speaker of the House for four-year terms. Commission workers take their work seriously and strive to create honest, fair, and reliable assessments of all judges standing for retention. Trial judges’ evaluations are developed with surveys of random samplings of people who appear in their courtrooms, including attorneys, jurors, litigants, court employees, and law enforcement personnel. Judges also complete self-evaluations that are used in the evaluation process. Appellate judge evaluations are developed by surveys of attorneys, court employees, other appellate judges, and other lower court judges, as well as self-evaluations, courtroom statistics, and personal observations by commission members.

To see the recommendations of the Commission on Judicial Performance regarding all 146 judges standing for retention, click here.

Tenth Circuit: Habeas Petition Timely Despite Delay Because State Court Eventually Ruled on Merits

The Tenth Circuit Court of Appeals issued its opinion in Fisher v. Raemisch on Tuesday, August 5, 2014.

in January 2001, Michael Fisher was convicted of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery, and in October 2001, he filed a Crim. P. 35(c) application for relief in Colorado state court. Fisher’s counsel set a notice of hearing in 2006 and the hearing was held three years later. Fisher presented evidence at the 2009 hearing and the state court denied his application on the merits. Fisher appealed, and the Colorado Court of Appeals affirmed on the merits in 2012. Fisher filed a petition for certiorari in the Colorado Supreme Court, which was denied. Fisher then filed for federal habeas relief in federal district court. The federal court determined that Fisher’s state court Crim. P. 35(c) petition was no longer pending as of October 2004, despite the state court’s rulings in 2006 and 2009, and denied habeas relief on grounds that the petition was untimely. Fisher appealed to the Tenth Circuit.

The Tenth Circuit first addressed Respondents’ argument that the one-year limitation period for habeas relief began on January 8, 2001, when Fisher’s convictions became final. Because Fisher filed an application for state court relief in October 2001, however, the limitations period was tolled while the application was pending. Fisher asserts that the period remained tolled until October 2012, when the Colorado Supreme Court denied certiorari. Respondents argue that Fisher abandoned his application by not requesting an expeditious determination. The Tenth Circuit disagreed with Respondents, ruling that an application does not stop pending at the time that it could be deemed abandoned. Because the state court eventually ruled on Fisher’s Crim. P. 35(c) application, this implied that the state courts never deemed Fisher’s application abandoned. No court has suggested that an action automatically terminates when its bringer fails to request expeditious ruling. Since the federal interpretation of “pending” indicates final resolution in state court, Fisher’s action did not terminate until the Colorado Supreme Court denied certiorari.

The Tenth Circuit found Fisher’s habeas petition timely and reversed and remanded for hearing on the habeas petition.

Tenth Circuit: Statements in Articles, When Read in Context, Revealed Nasty Employment Dispute but Did Not Constitute Defamation

The Tenth Circuit Court of Appeals issued its opinion in Hogan v. Winder on Tuesday, August 5, 2014.

Beginning in 2008, Chris Hogan worked for the Utah Telecommunications Open Infrastructure Agency (UTOPIA), a state agency charged with upgrading high-speed internet access, as a consultant under a professional services agreement. In 2011, Hogan suspected that UTOPIA’s executive director unfairly favored a bid for services from a company where the director’s brother worked. Hogan discussed his suspicions with the plant manager overseeing the contractor selection process, the plant manager discussed that conversation with the executive director, and the executive director terminated Hogan’s employment.

The day after the termination, the mayor of West Valley City, Utah, Michael Winder, requested an interview with Hogan. At that meeting, Hogan began to suspect that Winder was associated with UTOPIA. Hogan then hired an attorney who sent UTOPIA a draft complaint, alleging wrongful discharge and several contract claims. The attorney also sent UTOPIA a letter that Hogan would be amenable to settling the dispute. The attorney sent UTOPIA another letter a few days later, raising four demands for settlement and suggesting that the public scrutiny from Hogan’s lawsuit could destroy the company. UTOPIA’s attorney responded with a letter saying that the common terms for Hogan’s attorney’s demands were “extortion” and “blackmail.” Shortly after these exchanges, both parties filed suit. UTOPIA requested the state court to seal the record. Hogan filed suit in federal court and, after the Salt Lake Tribune wrote a story about the lawsuit, UTOPIA moved to seal the record in the federal suit as well. The state court denied the motion to seal, and UTOPIA voluntarily dismissed its case and its motions to seal. Five days later, an online media outlet published a story titled “Former UTOPIA contractor accused of extortion.” It was later revealed that Winder pseudonymously wrote the article. Other news outlets published condensed versions of Winder’s article. Hogan sued UTOPIA, Winder, the city, and a number of other persons he believed to be involved in the publication of the articles, alleging defamation, false invasion of privacy, intentional infliction of emotional distress, and § 1983 violations.  The district court dismissed all his claims and Hogan appealed to the Tenth Circuit.

The Tenth Circuit affirmed the district court’s dismissal, examining each claim in turn. The Tenth Circuit noted that the potentially defamatory statements were explained by the articles’ context. Examined in context, the Tenth Circuit found that any reasonable reader would realize the parties were embroiled in a nasty employment dispute and would not take the statements at face value. Likewise, Hogan’s arguments that the statements portrayed him in a false light fail, because taken in context, any reasonable reader would recognize that the statements were made during a nasty employment dispute. As to Hogan’s claims regarding intentional infliction of emotional distress, the statements do not meet Utah’s high standard requiring outrageousness, and these claims fail as well. Finally, the Tenth Circuit addressed Hogan’s § 1983 civil rights claims. The district court concluded that Hogan failed to show the officials were acting under the color of state law while publishing the articles, and the Tenth Circuit agreed.

The judgment of the district court was affirmed.

Tenth Circuit: Significant Evidence of Monopolization Precluded Summary Judgment Against Plaintiff

The Tenth Circuit Court of Appeals issued its opinion in Lenox Maclaren Surgical Corp. v. Medtronic, Inc. on Tuesday, August 5, 2014.

Lenox Maclaren Surgical Corp. manufactures bone mills, a type of instrument used in spinal fusion surgery. In 2000, Lenox began to sell bone mills to a Medtronic entity, but that Medtronic entity initiated a recall of Lenox’s products and began selling bone mills produced by a different Medtronic entity. Lenox sued the Medtronic entities for monopolization and attempted monopolization from 2007 through 2010. The district court granted summary judgment to Medtronic, and Lenox appealed on five issues: (1) foreclosure of issues due to res judicata; (2) definition of the product market; (3) Medtronic’s monopoly power; (4) Medtronic’s acquisition of monopoly power through exclusionary practices; and (5) harm to competition from Medtronic’s monopoly powers.

The Tenth Circuit first addressed Medtronic’s claim that Lenox’s suit was barred by the doctrine of res judicata, since Lenox could have raised these issues when the parties engaged in arbitration prior to the district court’s grant of summary judgment. In that binding arbitration, a panel found that Medtronic had insufficient proof to justify its recall of the Lenox bone mills and the company had taken action to clear Lenox from the market. In the action before the district court, Medtronic moved for dismissal based on res judicata, but the district court denied the motion. Medtronic did not raise the res judicata claim in its motion for summary judgment. The Tenth Circuit ruled that Lenox had no need to confront an argument not raised in the motion and declined to address the issue.

Turning to the monopolization issue, the Tenth Circuit disagreed with the district court’s grant of summary judgment, ruling that there were genuine issues of disputed fact which precluded summary judgment. In order to prevail on the monopolization claim, Lenox had to prove (1) monopoly power in the relevant market, (2) willful acquisition of this power through exclusionary conduct, and (3) harm to competition. The district court ruled that Lenox had not created a triable issue of fact on the relevant product market, monopoly power, willful acquisition, or harm, but the Tenth Circuit disagreed.

The Tenth Circuit first identified the relevant product market as the market for other bone mills, despite the fact that hand tools can be used to mill bone, because Lenox presented expert testimony regarding surgeons’ preference for bone mills, a substantial price difference exists between bone mills and hand tools, and Medtronic’s market literature identifies its competition as other bone mills. Because of potential factual disputes on this issue, summary judgment is precluded.

Next, the Tenth Circuit addressed Medtronic’s monopoly power in the bone mill market and determined that Lenox showed sufficient evidence of market share and barriers to entrance to infer that Medtronic had monopoly power in the market. Medtronic’s own literature showed that it had a majority share of the bone mill market during the years in question, with its lowest market share at 65% and its highest at 97-98%. Lenox’s expert testified as to barriers to market entrance. The evidence on market share and barriers created reasonable disputes of material fact and precluded summary judgment.

The Tenth Circuit then turned to the issue of Medtronic’s anticompetitive conduct and found that Lenox presented significant evidence from which a fact-finder could infer anticompetitive conduct. Applying the more stringent 6-factor disparagement test, the Tenth Circuit found that Lenox had alleged facts sufficient to infer anticompetitive conduct, including Medtronic’s reasonless recall of Lenox’s products and Medtronic’s statements to hospitals about the recalls, thus inducing consumers to avoid the Lenox product and causing harm to Lenox.

The Tenth Circuit ruled that Lenox presented significant evidence to support a finding on each element of its claim for actual monopolization, and this evidence precluded summary judgment to Medtronic. The district court’s judgment was reversed and the case was remanded for additional proceedings.

Tenth Circuit: Unpublished Opinions, 8/8/2014

On Friday, August 8, 2014, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

Morrison v. Kache

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