August 21, 2019

Archives for October 2014

Patrick Flaherty Named New Executive Director of Colorado and Denver Bar Associations

Patrick Flaherty 1-14Patrick Flaherty has been named the new Executive Director of the Colorado and Denver Bar Associations. He will officially begin on Jan. 1, when current Executive Director Chuck Turner steps down after 34 years.

“I’m honored to be inheriting Chuck Turner’s legacy, and I’m excited to help the Associations take on new challenges and continue to move forward,” Flaherty says.

Patrick Flaherty was most recently Director of Policy Advocacy Programs at the Gill Foundation, where he served for nine years. Prior to that, Flaherty was Executive Director of the nonprofit Project Angel Heart, which he grew from a fledgling organization to a highly impactful service organization. Under his leadership, it received the El Pomar Foundation’s Award for “Most Outstanding Nonprofit Organization in Colorado.”

Flaherty also has nine years of legal experience. He began his law career at Lewis Roca Rothgerber, rising from summer associate all the way to partner. He is a graduate of the University Of Denver Sturm College Of Law, where he received his JD in 1987.  Flaherty has a master’s degree in nonprofit management from Regis University as well.

Bringing a blend of legal knowledge, nonprofit management, and advocacy experience to the bar associations, Flaherty is well suited to lead bar members, and more importantly, guide the legal community into the future.

Tenth Circuit: No Reasonable Jurist Could Have Found Trial Counsel’s Performance Deficient

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodriguez on Wednesday, October 15, 2014.

Samuel Rodriguez pleaded guilty to the distribution of five grams or more of methamphetamine, and the district court sentenced him. The district court applied a career offender sentence enhancement based on Rodriguez’s two prior felony convictions involving crimes of violence or controlled substances. One of Rodriguez’s prior convictions was for simple assault under the Texas Penal Code. The parties disagree on whether the assault conviction constitutes a crime of violence. In an earlier appeal, Rodriguez’s attorney argued unsuccessfully that the conviction should not be considered a crime of violence. Rodriguez then sought collateral relief on a theory that his attorney had mishandled the issue. The district court recharacterized the request as a motion to vacate the sentence and denied it. Rodriguez then sought a Certificate of Appealability (COA), along with leave to amend his motion and a request to file in forma pauperis. The Tenth Circuit denied the COA and mooted the related requests.

The Tenth Circuit first noted that its prior ruling was the law of the case, and even if the current panel disagreed with the finding of the prior panel, it could not overturn that decision. Nevertheless, analyzing Rodriguez’s claim about the requisite mental state underlying his Texas assault offense, the Tenth Circuit found that the issue had been litigated in the prior ruling. The Tenth Circuit found that Rodriguez’s prior counsel advocated well for him, raising the claim that he did not have the requisite mental state, citing case law, and otherwise appropriately advocating, and declined to characterize Rodriguez’s appeal as anything other than an attempt to relitigate an already-decided issue.

The Tenth Circuit denied Rodriguez’s request for a COA and found moot his related requests to amend his motion and file in forma pauperis.

Tenth Circuit: The Government Has the Right to Regulate Its Own Property

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jones on Friday, October 3, 2014.

Stanley Jones is a cattle rancher in Wyoming. His brother owns base properties close to two BLM public lands — the Sandstone and Cannady allotments. Mr. Jones frequently allows his cattle to graze on the BLM lands, despite lacking a permit to do so lawfully. After numerous administrative trespass notices and fines, the BLM brought criminal charges against Jones through the U.S. Attorney’s Office in Wyoming for one count of unlawful use of public lands and two counts of allowing his livestock to graze on public lands without authorization. Mr. Jones pled not guilty to all charges and requested a jury trial. At trial, Mr. Jones was convicted on all counts and sentenced to two years probation on each count, to be served concurrently, a $3,000 fine, a $75 special assessment fee, all contingent on his compliance with certain terms and conditions. Pro se, Mr. Jones appealed his convictions.

Mr. Jones implored the Tenth Circuit to consider the true and honest facts, which the Tenth Circuit considered a sufficiency of the evidence challenge. The Tenth Circuit considered the evidence against Mr. Jones, including that he has never been a permittee for grazing on public lands, he was told numerous times that he was not allowed to graze his cattle on the lands, he was told to remove his property from public lands, and he was fined for failure to remove his property and cattle from the public lands. The Tenth Circuit found overwhelming evidence to support Mr. Jones’ convictions.

The Tenth Circuit next addressed Mr. Jones’ contention that the trial court should have allowed his proposed testimony that the government should comply with Wyoming’s fence-out laws. However, this testimony was not related to the issues at hand, and it would have confused the jury. The government has the right to regulate its own property. The trial court’s exclusion of the fence-out evidence was proper.

The Tenth Circuit affirmed Mr. Jones’ convictions.


Colorado Court of Appeals: Announcement Sheet, 10/30/2014

On Thursday, October 30, 2014, the Colorado Court of Appeals issued no published opinion and 37 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, 10/30/2014

On Thursday, October 30, 2014, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Arraez Brandy v. Holder

Moffett v. Colvin

Taufu’i v. Holder

United States v. Palmer

Hutchins v. Cessna Aircraft Co.

Acosta v. Daniels

Gomez v. Lopez

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

Killing Them Softly (Part Seven): The Ethics of Mindfulness And Why it Works

rhodesProf. Austin’s Killing Them Softly article reminds us that not only can we help ourselves to overcome legally-inflicted brain (and heart) damage, we have an ethical duty to do so:

Each law student, law professor, and lawyer has the power to alter brain processes to achieve states more conducive to learning.

Rule 1.1 of the American Bar Association Model Rules of Professional Conduct requires lawyers to be competent in completing their duties on behalf of their clients. Law students, law professors, and lawyers can benefit from developing a neuroscience-based understanding of how to optimize their own cognition.

If we’re willing, neuroscience can help us take up the challenge to operate at a higher cognitive and ethical level:

Developments in neuroscience identify areas of cognition in the brain and indicate recommendations that enhance cognitive effectiveness, performance, and productivity. Steps taken to increase cognitive fitness can strengthen lawyer creativity and well-being.

Knowledge of these neuroscience findings will empower law students, law professors, and lawyers to enhance their cognitive wellness.

Law schools and law firms, like many cutting-edge companies, can curate a culture of cognitive wellness.

Promoting cognitive wellness is good health, good ethics, and good business. As for the latter:

In addition to bolstering cognitive competence, cognitive wellness initiatives may also provide a lawyer with a competitive advantage.

Many innovative companies promote wellness to provide vibrant workplaces and thriving employees. Research shows that perks such as onsite gyms, work/life balance programs, stress management classes, mindfulness training, and nutrition coaching improve the bottom line.

If we’re not doing this already, then where do we start? According to Prof. Austin, with mindfulness training:

The best cognitive approach to dealing with stress is mindfulness. Research on mindfulness indicates that it:

  • strengthens the insula in the thinking brain (the early detection system of well-being);
  • increases gray matter and connections between brain regions;
  • improves immune function;
  • decreases distraction; and
  • equips the brain to notice patterns and events before responses become overly-reactive.

Mindfulness works as an antidote to cognitive impairment because it bypasses our habitual cognitive processes. Mindfulness doesn’t ask us to think, analyze, reason, argue, and high achieve our way into a stress-free mindset. Instead, it shifts our brains to a new state of perception and awareness, where we can make behavioral choices that alter the ethos of stress itself. In fact, mindfulness is not about thinking at all:

{M]indfulness is attention without labels, ideas, thoughts, or opinions. Mindfulness means “being fully aware of something” and paying attention to the moment, with acceptance and without judgment or resistance. It requires “emotion-introspection rather than cognitive self-reflection,” and specifically does not involve the analysis of thoughts or feelings. Mindfulness is a form of self-understanding involving self-awareness rather than thinking.

Practiced with intention and perseverance, mindfulness is just what the brain (and heart) doctor ordered:

Mindfulness improves information processing and decision-making. It provides space between awareness, and judgments and reactions, which may encourage the onset of flow. Flow is a term coined by psychologist Mihaly Csikszentmihalyi to describe the state of effortless concentration when humans are so engaged in a task they lose track of time.

Being mindful allows you to have control over your attention so that you can place it where you want and shift it to something else when you want to. When attention is steady, it cannot be appropriated by whatever intrudes on awareness, but remains grounded and stable. Developing greater control over attention is a powerful way for law students and lawyers to sculpt their brains.

And, we might add, it’s not just a powerful way to sculpt our brains, but our careers and our profession as well.

More on that next time, and then this series is over.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the link to sample and download it from the distributor’s webpage. (Soon to be available on iTunes, Barnes & Noble, and Scribd.) Includes Forewords from Debra Austin, author of the Killing Them Softly law journal article, and from Ron Sandgrund, author of an article on lawyers exiting the law in the August 2014 issue of The Colorado Lawyer, in which Kevin was interviewed.

Tenth Circuit: Sex Offenders Have Continuing Duty to Keep Registration Information Up-to-Date

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lewis on Tuesday, September 30, 2014.

Marcus Lewis pleaded guilty to statutory rape in Missouri in 1996 and was sentenced to five years’ probation. He later served prison time because of a probation violation. Under the Sex Offender Registration and Notification Act (SORNA), Lewis was required for life to register as a sex offender. He last registered in Kansas in May 2011, and has not voluntarily registered in any state since then. SORNA requires sex offenders to register where they live, work, or attend school, and requires offenders to report any change in status to authorities.

In August 2011, a sheriff’s deputy in Kansas tried to locate Lewis for a warrant unrelated to his previous sex offense. The deputy used Lewis’s last known address from the sex offender registry, but learned that Lewis no longer lived there. Unable to find Lewis, the deputy alerted U.S. Marshals, who found a car associated with Lewis at the residence of his relatives in Missouri. Over a year later, Lewis was arrested in Atlanta on the Kansas warrant. In an interview with a U.S. Marshal, Lewis admitted that he had not registered because of the outstanding warrants. A federal grand jury indicted Lewis on one count of failing to register, and after a bench trial, Lewis was convicted. Following the conviction, Lewis filed a motion for judgment of acquittal, claiming improper venue and that the evidence was insufficient to support a conviction. His motion was denied, and Lewis appealed.

Lewis contended that venue in Kansas was improper, because he abandoned his home in Kansas, traveled through Missouri, and eventually settled in Georgia. Lewis argued that any SORNA violation occurred outside Kansas. The Tenth Circuit disagreed, finding that under SORNA, Lewis was required to report within three days that he had abandoned his Kansas residence or register in a new location within three days, so venue was proper in the departure district. Lewis also argued that he had abandoned his Kansas residence before the date listed on the indictment, but the Tenth Circuit found this argument flawed, as Lewis had a continuing requirement to update his information. Lewis next argued that his next registration date had not occurred at the time the sheriff discovered his abandonment of the Kansas residence, but the Tenth Circuit disagreed with his reasoning, as the purpose of SORNA is to keep registrations current regardless of where the offender resides, not to maintain one registration and allow the offender to be transitory as long as that one registration is maintained. Finally, Lewis argued that the government’s theory of the case was inherently flawed because it required a sex offender to notify the departure state of any change in location. The Tenth Circuit, however, determined that this was only partially true — sex offenders have a continuing requirement to update their registration, and if the offender does not re-register within three days of departure, the offender has the duty to notify the departing location of his departure.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: Class Certification Appropriate where Class-Wide Impact Prevails Over Individual Issues

The Tenth Circuit Court of Appeals issued its opinion in In re Urethane Antitrust Litigation: Dow Chemical Co. v. Seegott Holdings, Inc. on Monday, September 29, 2014.

A class of plaintiffs brought suit against Dow Chemical Company and other manufacturers of polyurethane products, alleging price fixing in violation of the Sherman Antitrust Act and the Clayton Antitrust Act. A jury returned a verdict against Dow for $400,049,039. The district court entered judgment for the plaintiffs, denying Dow’s motions for decertification of the class and judgment as a matter of law. Dow appealed, arguing (1) class certification was improper because common questions did not predominate over individualized questions; (2) the district court should have excluded the testimony of the plaintiffs’ expert witness on statistics; (3) the evidence on liability was insufficient; and (4) the damages award lacked an evidentiary basis and the resulting judgment violated the Seventh Amendment. The Tenth Circuit addressed each contention in turn.

Dow argued that it was entitled to show in individualized proceedings that certain class members could not have been injured by the price fixing. The Tenth Circuit conceded that some class members could have avoided the price fixes by negotiating lower prices or switching to substitute products, but found no error in the district court’s finding that class-wide issues predominated over individual issues, because the key elements of the price fixing claim raised common questions that were capable of class-wide proof. Dow also argued that the plaintiffs’ expert, Dr. McClave, used unacceptable regression and extrapolation models to prove class-wide impact and damages. The Tenth Circuit noted that Dr. McClave had not yet testified when the court certified the class, so it could not have relied on his opinions. Although Dr. McClave had testified by the time Dow moved to decertify, the Tenth Circuit found no error in the trial court’s denial of the decertification motion, noting it was filed late — on the day before trial — and also that liability was not proven through a sample of class members so Dr. McClave’s extrapolation methods to prove damages had no bearing on proof of liability.

Dow also contended the district court erred in allowing Dr. McClave’s testimony. The Tenth Circuit disagreed, finding that many of Dow’s complaints spoke to the weight of the evidence and not admissibility. Dow had numerous complaints about the methods Dr. McClave used to determine that price fixing had occurred and to calculate damages. Dow also contended that Dr. McClave skewed the results of his findings in favor of plaintiffs. However, the Tenth Circuit found no error in the district court’s decision to resolve that “swearing match” in favor of the plaintiffs.

Dow challenged the sufficiency of the evidence regarding liability, arguing the district court erred in denying its motion for judgment as a matter of law. The Tenth Circuit found the evidence, viewed in a light most favorable to plaintiffs, sufficed as to (1) implementation of the alleged price fixing agreement, (2) the conspiracy as to another polyurethane manufacturer, Lyondell, and (3) the jury’s consideration of Dr. McClave’s models. The Tenth Circuit first addressed the price fixing agreements, noting the plaintiffs introduced evidence of admissions by industry insiders, collusive behavior, susceptibility of the industry to collusion, and setting of prices at a supra-competitive level, in addition to showing parallel price increases. Regarding the participation of Lyondell, the plaintiffs did not need to prove its collusion because there was sufficient evidence to implicate Dow even without evidence of collusion with Lyondell. Next, Dow argued that because the jury found no injury for part of the period evaluated by Dr. McClave, his models were necessarily invalid. The Tenth Circuit disagreed, noting that Dow’s “series of inferences” did not allow it to disturb the jury’s verdict.

Finally, Dow contended that because the jury varied downward from Dr. McClave’s calculation of damages, the entire award had no evidentiary basis and violated the Seventh Amendment. The Tenth Circuit found many possible reasons for the jury’s variance, none of which required reversal. Dow claimed the district court’s decision to allocate the damages award based on Dr. McClave’s model took from the jury the question of liability and assessment of damages. However, this argument failed, because the cases on which Dow relied were inapposite.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Unpublished Opinions, 10/29/2014

On Wednesday, October 29, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Jones v. Kuprivnikar

Parker v. Martin

Heer v. Costco Wholesale Corp.

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

Colorado Court of Appeals: Trial Court Cannot Sua Sponte Certify Question for Interlocutory Review

The Colorado Court of Appeals issued its opinion in People in Interest of M.K.D.A.L. on Thursday, October 23, 2014.

CAR 4.2—Sua Sponte Certification of an Issue for Interlocutory Review.

J.A.A.U., the biological father of M.K.D.A.L., petitioned under CRS § 15-14-304(1) for his appointment as a permanent guardian. According to the petition, “[r]espondent is unable effectively to communicate in the English language to the extent that he lacks the ability to satisfy essential requirements for physical health, safety, or self-care even with appropriate and reasonably available technological assistance.”

The trial court denied the petition, finding that, as a matter of law, speaking English is not a requirement for competency. The court also stated that, pursuant to CAR 4.2, it “will stay this order for 14 days and certify that there is no current case law on this point and that determination of this issue will determine the case.” Petitioner timely filed a petition for interlocutory appeal. There was no motion or stipulation for certification.

Under CAR 4.2(c), the appealing party must move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed. The trial court then has discretion to certify the order as immediately appealable; however, if all parties stipulate, the trial court must certify the order. No case interpreting CAR 4.2 has addressed a petition to appeal based on a trial court’s sua sponte certification.

The Court of Appeals concluded that a trial court cannot certify sua sponte an issue for interlocutory review.The Court recognized that a case may arise in which, despite the parties’ inaction, the trial court perceives that its order clearly involves “a controlling and unresolved question of law,” immediate review of which would “promote a more orderly disposition or establish a final disposition of the action,” as provided by CAR 4.2(b). However, the rule only empowers trial courts to grant or deny a motion for certification, not to initiate certification. Accordingly, the petition was dismissed.

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

Colorado Court of Appeals: Separate Property Remained Separate Despite Use to Pay Marital Debts

The Colorado Court of Appeals issued its opinion in In re Marriage of Corak on Thursday, October 23, 2014.

Marital Property—Marital Debt Allocations.

Husband and wife entered into a prenuptial agreement identifying separate property that each had acquired before the marriage. This separate property included a parcel of husband’s property (Shoshone property). The agreement stated that all separate property would remain as such.

Shortly after marrying, husband and wife jointly bought a piece of property (Pinyon property). Husband pledged the Shoshone property as collateral for a home equity line of credit for the down payment on the Pinyon property and the funds to remodel it. Husband and wife agreed to apply $16,000 from the credit line to retire one of wife’s premarital credit card debts. Husband and wife agreed that wife would make payments toward the line of credit.

Wife testified at the permanent orders hearing that she had made all of the payments on the credit line during the marriage, even beyond the amount she had used to retire her separate debt. She also testified that she had paid down some of her other premarital debts. Husband testified he paid down his separate debt during his marriage and admitted he had not disclosed the debt in the prenuptial agreement.

The district court ruled that husband’s act of pledging the Shoshone property as collateral for the line of credit turned a portion of it into marital property. The Court of Appeals found this to be an issue of first impression in Colorado. In looking to other jurisdictions, the Court found cases concluding that using separate property to secure a loan does not change the pledged property into marital property. The case was remanded for the trial court to determine the division of marital property and marital debt after setting aside all of the Shoshone property as husband’s separate property.

The Court agreed with husband that he had initially asked the trial court to restore the marital funds wife had spent to retire her separate premarital debt to the marital estate and credit them to her. However, after review of the record, the Court concluded that husband had intentionally abandoned this argument. Because the Court found husband had abandoned his claim to have these funds allocated differently, the Court will not disturb the trial court’s findings on appeal.

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

Colorado Court of Appeals: Department of Revenue’s Challenge to Conservation Easement Tax Credits Barred by Statute of Limitations

The Colorado Court of Appeals issued its opinion in Markus v. Brohl, Exec. Dir. of Colorado Department of Revenue on Thursday, October 23, 2014.

Conservation Easement Tax Credits—Review Period by Department of Revenue—Summary Judgment.

In 2004, three pairs of landowners created conservation easements (CEs) on their lands, had them appraised, and sold them to the Otero County Land Trust for a portion of their appraised value. They applied part of the CE tax credits to their 2004 income tax liability. The landowners (CE donors) carried forward the remainder of the CE credits, some for personal use and some for the use of third parties.

On September 28, 2009, the Colorado Department of Revenue (Department) disallowed the entire CE tax credit of one pair of landowners because of a purported deficiency in the appraisal. For the same reason, in April 2010, the Department disallowed the claims of CE tax credits of the each of the second pair of landowners. The disallowances, under a four-year limitations period, affected only the donors’ use of claimed CE credits in the 2005–08 tax years.

On cross-motions for summary judgment, the CE donors argued that the four-year limitations period had expired before the Department acted to disallow their tax credits. The Department argued that the limitations period commenced each time a CE donor or transferee applied a CE tax credit to his or her tax liability and that it could evaluate the original claims for purposes of disallowing the use of credits for the 2005–08 tax years. The district court entered summary judgment in favor of the CE donors.

On appeal, the Department argued that the district court erred in its limitations determination, and that there was a genuine issue of material fact precluding summary judgment as to whether the CE donors had filed false or fraudulent tax returns. The Court of Appeals found that the applicable general statute of limitations was four years, and the time period commenced at the filing of a tax return. Under this system, the Court was inclined to side with the Department.

However, CRS § 39-22-522 specifically addresses the tax consequences of a CE. Under that statute, claimed CE tax credits may be transferred to third parties, who are then bound by “the same statute of limitations” as the CE donor. The Court supported an interpretation where a purchaser–transferee would have a low risk of disallowance of the CE credits by the Department. Here, because the Department did not challenge the validity and value of the CE tax credits prior to April 15, 2009, it was barred from disallowing them.

The Department also argued that there was a genuine issue of material fact as to whether the CE donors filed false or fraudulent tax returns that precluded summary judgment. After reviewing the record, the Court found no genuine dispute of any material fact. The judgment was affirmed.

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