August 24, 2019

Archives for January 14, 2015

Colorado Supreme Court: C.R.C.P. 45 Inapplicable to Administrative Subpoena Enforcement Proceedings Under UCCC

The Colorado Supreme Court issued its opinion in Tulips Investments, LLC. v. State of Colorado ex rel. Suthers on Monday, January 12, 2015.

Uniform Consumer Credit Code—Subject Matter Jurisdiction—Authority to Issue and Enforce Administrative Subpoena—CRS § 5-6-106.

The Supreme Court held that, in enacting the Uniform Consumer Credit Code (UCCC), the General Assembly conferred administrative subpoena issuance authority on the UCCC Administrator and authorized trial courts to enforce such a subpoena against a nonresident who is alleged to have violated the UCCC and has refused to obey a subpoena. In so holding, the Court distinguished its decisions in Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957), and Colorado Mills, LLC v. SunOpta Grains & Foods Inc., 269 P.3d 731 (Colo. 2012). Those cases addressed a limitation under CRCP 45 restricting service of a subpoena in civil actions to areas located within the state. CRCP 45 is inapplicable to administrative subpoena enforcement proceedings under the UCCC, which applies equally to residents and nonresidents suspected of conduct violating its provisions. Accordingly, the Court affirmed the judgment of the court of appeals.

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

Colorado Supreme Court: When Court Grants Motion for New Trial, Defendant Restored to Original Bond Status

The Colorado Supreme Court issued its opinion in People v. Blagg on Monday, January 12, 2015.

Bond Hearing—Motion for New Trial—Victims’ Rights Act.

In this original proceeding under CAR 21, the Supreme Court issued an order to show cause, which it now makes absolute. The Court held that when a trial court grants a motion for a new trial, the defendant is restored to the bond status that existed upon the filing of charges. In a capital case, this requires that the court hold the defendant without bond until he or she requests admission to bail. Once requested, the court must set a hearing, at which the district attorney may seek to have bail denied because the proof is evident or the presumption great. Even if the district attorney does not contend the proof is evident or the presumption great, the court must still hold a hearing to set bail. In either circumstance, because such a hearing is a “critical stage” as defined by the Victims’ Rights Act enabling legislation, CRS § 24-4.1-302(2)(c)(I)(E), the alleged victim (or the alleged victim’s family if the alleged victim is deceased) has the right to be present and heard at the hearing.

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

Tenth Circuit: § 1983 Challenges Unlikely to Succeed on Merits; Stay of Execution Denied

The Tenth Circuit Court of Appeals issued its opinion in Warner v. Gross on Monday, January 12, 2015.

In early 2014, Oklahoma changed its execution procedure for lethal injections due to the state’s inability to obtain two of the drugs previously used. In April 2014, Clayton Lockett was the first Oklahoma state prisoner to be executed using the new procedures, and his execution did not go smoothly. The IV used to deliver the lethal drug cocktail infiltrated, or leaked into his tissue instead of delivering the drugs to his veins. He experienced unusual effects from the lethal injection but eventually died anyway. After Lockett’s execution, the state developed new protocols for lethal injections, including establishing two viable IV sites and using various combinations of drugs, including midazolam, a sedative.

In November 2014, four inmates with scheduled execution dates as soon as January 15, 2015, among a group of twenty-one Oklahoma death row inmates, filed a § 1983 lawsuit challenging the constitutionality of Oklahoma’s new lethal injection procedure. Their complaint alleged eight counts, two of which are relevant to their appeal. Count 2 challenges the use of midazolam as violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. Count 7 also raises an Eighth Amendment claim, asserting that the state is effectively experimenting on unwilling human subjects by using the untested procedure. After a three-day evidentiary hearing, the district court denied plaintiffs’ motion for preliminary injunction, concluding the inmates failed to show a likelihood of success on the merits. The plaintiffs appealed as to Count 2 and Count 7, and filed an emergency motion for stay of execution.

The Tenth Circuit conducted an abuse of discretion review and found none. The Tenth Circuit examined the long history of challenges to capital punishment, noting (1) the Supreme Court has never held that capital punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, (2) the Supreme Court has never invalidated a state’s chosen procedure for carrying out the sentence, (3) there must be some means of carrying out the death sentence, and the Constitution does not demand avoidance of all pain, and (4) a stay of execution may not be granted unless the prisoner demonstrates a substantial risk of severe pain from the state’s chosen lethal injection procedure.

The plaintiffs contested the district court’s finding that the testimony of the defendants’ expert witness, Dr. Roswell Lee Evans, the Dean of the School of Pharmacy at Auburn University, was persuasive. The Tenth Circuit examined Dr. Evans’s credentials and found him to be well-qualified to render an expert opinion on the effects of midazolam. The plaintiffs also argued that the district court misapplied Supreme Court precedent in Baze v. Rees, 533 U.S. 35 (2008). The Tenth Circuit disagreed, instead concluding that the plaintiffs failed to show that midazolam created a risk of extreme pain.

The Tenth Circuit affirmed the district court’s denial of the motion for preliminary injunction. In a footnote, the Tenth Circuit added that, in “an abundance of caution,” the opinion was circulated to all the judges prior to publication, and no judge requested en banc review.

Tenth Circuit: Class Certification Appropriate Where Common Issues Predominate Over Individualized Claims

The Tenth Circuit Court of Appeals issued its opinion in CGC Holding Co. LLC v. Broad & Cassel on Monday, December 8, 2014.

In this RICO class action interlocutory appeal, defendants contest the district court’s class certification. Plaintiff class representatives CGC Holding Co., LLC, Harlem Algonquin, LLC, and James Medick, on behalf of the proposed class, assert that a group of lenders led by Sandy Hutchens conspired to create a scheme to defraud borrowers by requiring up-front fees for loan commitments the lenders never intended to fulfill. Plaintiffs also allege the lenders fraudulently concealed Hutchens’ criminal past through the use of pseudonyms, and had they known about his financial history they would not have taken part in the financial transactions that caused them to lose their up-front fees.

In 2004, Hutchens pleaded guilty in Canada to financial fraud charges similar to those at issue here. Following his conviction, he changed his name and assumed various aliases. Plaintiffs claim Hutchens operated a scheme in which a potential borrower, typically a distressed “do-or-die” borrower, would submit a loan application to one of several issuing entities through a loan broker. The lending entity would issue a loan commitment requiring non-refundable up-front fees, also requiring the borrower to meet certain eligibility requirements. If the borrower failed to meet an eligibility requirement, the lending entity would terminate the loan application. Plaintiffs contend this was a subterfuge intended to scam the borrowers out of the non-refundable up-front fees, without any intention or ability to fund the loan. Hutchens contends the loans were legitimately terminated for failure to meet the eligibility requirements. However, his accountant testified that by the end of 2009 Hutchens and his entities had received over $8 million in up-front fees and had lent less than $500,000.

Plaintiffs also contend that Hutchens and his cohorts concealed Hutchens’ criminal past through the use of aliases and false addresses, and but for these omissions and misrepresentations, no borrower would have participated in the loan scheme. Plaintiffs named several persons and entities as co-conspirators with Hutchens, including his wife and daughter, five issuing entities, Hutchens’ attorney Alvin Meisels, and Broad and Cassel, a Florida law firm that represented several of the defendants during the relevant time period.

Plaintiffs conceded they lacked standing to pursue their claims against Broad and Cassel, and the Tenth Circuit reversed and remanded on this issue. However, the Tenth Circuit affirmed the district court’s grant of F.R.C.P. 23 class certification. Defendants contend the district court erred in finding that common issues predominated over individual ones in the class certification. The Tenth Circuit reviewed for abuse of discretion and found none. The Tenth Circuit found no reasonable dispute that plaintiffs met the threshold requirements of Rule 23(a), and evaluated solely for whether common issues predominated under the class type listed in Rule 23(b)(3).

After evaluating the prerequisites of a civil RICO claim, the Tenth Circuit discussed plaintiffs’ requirement to prove that a link existed between defendants’ actions and the class injury. Plaintiffs must prove a causal connection between defendants’ misrepresentation and and plaintiffs’ reliance on that misrepresentation. In the context of a class action, the plaintiffs must show that the reliance is susceptible to generalized proof. In the instant case, the evidence of class members’ payments for loan commitments is sufficient to show reliance on defendants’ promise to provide loan funds. The fact of payment of the up-front fee is common to the entire class. The Tenth Circuit also found that superiority was proven as to the class action’s preference over individualized actions.

Defendant Meisel also raised the question of whether the district court had subject matter jurisdiction over the Canadian defendant entities. The Tenth Circuit declined to consider the question, finding it exceeded the scope of Rule 23(f) review and instead was a merits issue. The Tenth Circuit similarly declined to consider several other issues raised by defendants, finding their review limited to the scope of Rule 23(f) and disfavoring interlocutory review of other issues.

The district court’s class certification was reversed and remanded as to Broad and Cassel, and was affirmed as to all other defendants.

Tenth Circuit: Unpublished Opinions, 1/13/2015

On Tuesday, January 13, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Dickman v. LaHood

Redmon v. Dowling

United States v. Burciaga

United States v. Nash

Brown v. University of Kansas

Brainerd v. City of Topeka

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