June 17, 2019

Archives for November 26, 2014

Local Rules for U.S. District Court Amended Effective December 1, 2014

The U.S. District Court for the District of Colorado has made changes to its Local Rules, effective December 1, 2014. The Advisory Committee continues to revise the rules in its comprehensive review. The changes effective December 1 focus on stylistic changes to the criminal rules, converting pilot programs to local rules, and updating rules applicable to members of the bar.

The Advisory Committee will conduct a public forum in January 2015 in which to discuss these changes to the Local Rules and invite questions and comments from the bar. It will be held at the Alfred A. Arraj U.S. District Courthouse at an as yet undetermined date.

For the complete Local Rules effective December 1, 2014, click here. For a redline showing the changes to the Local Rules, click here.

Nominees Selected for Judgeships on 17th Judicial District Court and Ouray County Court

The Colorado State Judicial Branch released the names of nominees for judicial vacancies on the Seventeenth Judicial District Court bench and the Ouray County Court bench. The vacancy on the bench of the Seventeenth Judicial District Court will be created by the retirement of Hon. Chris Melonakis, effective January 12, 2015, and the vacancy on the Ouray County Court bench will be created on January 13, 2015, due to the appointment of Hon. David Westfall to the district court.

Nominees for the vacancy on the Seventeenth Judicial District bench are Tomee Crespin of Thornton, Sharon D. Holbrook of Broomfield, and Donald S. Quick of Westminster. Pursuant to the Colorado Constitution, the governor has 15 days from November 24, 2014, in which to select one of the nominees for appointment.

Nominees for the vacancy on the Ouray County Court bench are Leslie M. German of Ridgway and Donald (Cory) Jackson of Ouray. The governor has 15 days from November 18, 2014, in which to select one of the nominees for appointment.

Comments regarding any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the Seventeenth Judicial District Court nominees, click here. For more information about the Ouray County Court nominees, click here.

Colorado Court of Appeals: Mother’s Fraud in Adoption Deprived Father Rights of Biological Parent

The Colorado Court of Appeals issued its opinion in M.C. v. Adoption Choices of Colorado, Inc. on Thursday, November 20, 2014.

Termination of Parent–Child Legal Relationship—Due Process—Troxel Presumption.

On September 13, 2012, mother gave birth to twins in Grand Junction. The next day, she filed a petition for expedited relinquishment of her parental rights. She provided a first name for the children’s father, but alleged she didn’t know any other information that might have been used to locate him. Intervenors, clients of Adoption Choices of Colorado, Inc., were chosen as the children’s adoptive parents. They were present for the birth and the children were placed with them that day. Father’s legal relationship with the children was terminated, and a final decree of adoption was entered in December 2012.

In February 2013, father, who resided in Iowa, sought relief from the judgment terminating his parental rights. He alleged that mother had informed him she lost the pregnancy and that he didn’t discover her deception until December 2012.

The trial court found overwhelming evidence of fraud on the court by mother and held that the termination of father’s parental rights was void. The trial court ordered the parties to confer and arrange for father to have weekly visitation with the children. The parties could not agree on a means to accomplish this order and the court modified its order to provide for a more gradual visitation schedule. A guardian ad litem(GAL) was appointed to provide a written report for the court. The GAL found it was in the best interests of the children to maintain their secure attachment to intervenors and recommended termination of father’s parental rights.

Following a hearing, the trial court concluded that father had not established a substantial positive relationship with the children. The court held it was in the best interests of the children to terminate father’s parental right and place the children in the permanent legal custody of intervenors. The Court of Appeals reversed.

The Court held that the trial court erred by terminating father’s parental rights based on his not having established a substantial positive relationship with the children. Evidence did not support the conclusion that the children likely would suffer significant psychological harm if removed from intervenors’ home. The trial court also erred in failing to give father the benefit of the Troxel presumption. [Troxel v. Granville, 530 U.S. 57, 65 (2000).] Having found him “not unfit,” the court was required to presume that father’s decisions were in the best interests of the children.

The Court rejected intervenors’ contention that the entry of final adoption decrees conferred on them a fundamental liberty interest in the care, custody, and control of the children equal to father’s, and that the children have a fundamental right to continue their relationship with intervenors and to have a stable, permanent home. Intervenors argued that the interest of the state, as set forth in CRS § 19-5-100.2(2), is “to promote the integrity and finality of adoptions.” However, the integrity of an adoption is not to be preserved at the cost of denying the rights of a fit biological parent. On remand, the trial court must conduct a custody hearing after affording father a full and fair opportunity to establish a meaningful relationship with his children.

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

Colorado Court of Appeals: Economic Realities Test Determines When General Partnership Interests Constitute Securities

The Colorado Court of Appeals issued its opinion in Rome, Acting Securities Commissioner for the State of Colorado v. HEI Resources, Inc. on Thursday, November 20, 2014.

Partnership Interests as Securities Under the Colorado Securities Act—Strong Presumption Test Under Williamson.

Rome, Acting Securities Commissioner for the State of Colorado (commissioner), appealed from a judgment dismissing his enforcement action against defendants. Two of the defendants, HEI Resources, Inc. (HEI) and Heartland Energy Development Corporation (HEDC), had their principal place of business in Colorado. In 2009, the commissioner filed a complaint alleging that defendants violated the Colorado Securities Act (Act) by using unlicensed sales representatives to offer and sell unregistered securities.

The allegations were premised on defendants’ formation and operation of several joint ventures in oil and gas exploration and drilling. To capitalize the ventures, defendants solicited investors by cold-calling thousands of people across the country. If an individual was interested, defendants sent an information package that included a Confidential Information Memorandum (CIM) and a Joint Venture Agreement (JVA). The JVA provided for the formation of a joint venture, organized as a general partnership under the Texas Revised Partnership Act.

HEI or HEDC was named as the initial managing venture. Although the JVA gave the venturers authority to remove the managing venturer by a majority vote and to vote on other issues, the commissioner alleged that any theoretical control by the venturers was illusory. The commissioner argued that the substance of the transaction was an investment contract under which the venturers invested money with the expectation that defendants’ efforts would return a profit.

The trial court granted summary judgment motions filed by defendants. It held the commissioner was collaterally estopped (due to a 2002 cease and desist action) from arguing that, based on the plain language of the JVAs, the joint venture interests were securities. It also ruled that, as a matter of law, the commissioner could not establish that the interests were securities. Based on its summary judgment orders, the subsequent trial was limited to the commissioner trying to prove that the interests were securities based on the knowledge and experience of the partners or venturers or under other economic realities surrounding their offer and sale. The court ruled in favor of defendants.

On appeal, the commissioner argued it was error to apply a strong presumption that general partnership or joint venture interests are not securities and to conclude that the relevant experience of the venturers is their general business experience. Only transactions that involve a “security” fall under the scope of the Act. Courts are to look to the “economic realities” of the transaction.

In what the Court of Appeals saw as a matter of first impression in Colorado, it held that Colorado courts should not apply the “strong presumption” that interests in joint ventures or general partnerships are not securities. Because the trial court applied the strong presumption, the Court vacated the judgment and remanded the case for reconsideration.

The Court found that the inquiry is to be based on the knowledge of the nature of the underlying venture. The Court clarified that this is not a requirement that every investor have specific experience related to the underlying venture. Therefore, this issue must also be reconsidered on remand.

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

Tenth Circuit: Unpublished Opinions, 11/25/2014

On Tuesday, November 25, 2014, the Tenth Circuit Court of Appeals issued one published opinion and ten unpublished opinions.

United States v. Hendrickson

Melin v. Verizon Business, Inc.

United States v. Vann

Rice v. Dowling

United States v. Barrett

United States v. Hernandez-Garcia

Robbins v. County of Boulder

Marshall v. Wyoming Department of Corrections

United States v. Gonzalez-Alvarado

Morones-Quinones v. Holder

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