June 18, 2019

Archives for February 2015

Tenth Circuit: Unpublished Opinions, 2/20/2015

On Friday, February 20, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Fox v. National Oilwell Varco

Flute v. United States

Winkles v. No Named Respondent

Pfiel v. Lampert

Calvert v. Denham

United States v. Washington

Case summaries are not provided for unpublished opinions.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

e-Legislative Report: February 17, 2015

legislationCBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Meeting held Friday, February 13

SB 15-129 — Preserving Parent-child Relationships
Sponsor: Senator Kevin Lundberg (R)
The LPC voted to oppose this bill in part because of the fundamental way that it changed the presumption of parenting time away from the “best interest of the child” to a different standard more focused on the parents in divorce proceedings. The bill was heard in committee on Wednesday the 11th and was passed on a party line vote after substantial amendments. SB-129 was referred to the Appropriations Committee for consideration of the bill’s fiscal impact.

SB 15-174 — Uniform Substitute Decision Making Documents Act
Sponsor: Senator Patrick Steadman (D)
The LPC voted to oppose this bill. The committee felt that the bill conflicts with existing statute, was unnecessary in many respects and that it potentially created more gaps and questions with existing law than its adoption would solve.

HB 15-1091 — Policies On Juvenile Shackling In Court
Sponsors: Representative Susan Lontine (D), Senator Michael G. Merrifield (D)
The LPC was concerned that while this bill was very well intentioned, it raised significant potential problems with separation of power between the legislative and judicial branches.

At the Capitol: Week of February 9

SB 15-049 — Real Estate Title Vests In Entity Once Formed
Sponsors: Senator Beth Martinez Humenik (R), Representative Jon Keyser (R)
This bill, supported by the Bar, passed through the Senate this past week. It has been assigned to the House Business Affairs and Labor Committee and has not yet been calendared for a hearing.

HB 15-1121 — Wind Energy Generation
Sponsors: Representative Jon Becker (R), Senator Jerry Sonnenberg (R)
The bill, supported by the Bar, also passed through its first chamber (the House) last week. It will next be heard in the Senate, where it has been assigned to the Agriculture, Natural Resources & Energy Committee. It will be heard by that committee on February 19.

SB 15-077 — Parents’ Bill of Rights
Sponsors: Senator Tim Neville (R), Representative Patrick Neville (R)
The bill passed out of the Senate committee hearing on a party line vote, and was debated on the floor. The bill was passed with amendments, and now moves to the House for consideration. It has not been calendared for consideration.

SB 15-042 — Mandatory Reports Of Animal Abuse
Sponsors: Senator Jerry Sonnenberg (R), Representative Jon Becker (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1101 — Public Defender ADC Records Open Records
Sponsors: Representatives Rhonda Fields (D), Polly Lawrence (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1174 — Information Protections Domestic Violence Victims
Sponsors: Representative Terri Carver (R), Senator Laura Woods (R)
The CBA has not taken a position on this bill—though we are working with the sponsors to ensure that the program will work as intended and not harm the real estate transaction process as a result of its adoption or implementation. It is likely that the CBA and its sections will participate in stakeholder groups and work sessions this summer.

New Bills of Interest

Senate

SB 15-177 — HOA Construction Defect Lawsuit Approval Timelines
Sponsors: Brian DelGrosso (R), Mark Scheffel (R), Jonathan Singer (D), Jessie M. Ulibarri (D)
The bill states that when the governing documents of a common interest community require mediation or arbitration of a construction defect claim and the requirement is later amended or removed, mediation or arbitration is still required for a construction defect claim. These provisions are in section 2 of the bill.

Section 2 also specifies that the mediation or arbitration must take place in the judicial district in which the community is located and that the arbitrator must:

  • Be a neutral third party;
  • Make certain disclosures before being selected; and
  • Be selected as specified in the common interest community’s governing documents or, if not so specified, in accordance with the uniform arbitration act.

Section 1 adds definitions of key terms. Section 3 requires that before a construction defect claim is filed on behalf of the association:

  • The parties must submit the matter to mediation before a neutral third party; and The board must give advance notice to all unit owners, together with a disclosure of the projected costs, duration, and financial impact of the construction defect claim, and must obtain the written consent of the owners of units to which at least a majority of the votes in the association are allocated.

Section 4 adds to the disclosures required prior to the purchase and sale of property in a common interest community a notice that the community’s governing documents may require binding arbitration of certain disputes.

House

HB 15-1025 — Competency To Proceed Juvenile Justice System
Sponsors: Representative Paul Rosenthal (D), Senator Linda M. Newell (D)
The bill establishes a juvenile-specific definition of “incompetent to proceed” for juveniles involved in the juvenile justice system, as well as specific definitions for “developmental disability”, “intellectual disability”, “mental capacity”, and “mental disability” when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.

HB 15-1216 — Basis For Expert Opinion Testimony
Sponsors: Representative Kevin Priola (R), Senator John Cooke (R)
The bill prohibits a person from testifying concerning the person’s expert opinion unless certain conditions are met.

Colorado Court of Appeals: Announcement Sheet, 2/19/2015

On Thursday, February 19, 2015, the Colorado Court of Appeals issued no published opinion and 45 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, 2/19/2015

On Thursday, February 19, 2015, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

United States v. Mendoza-Hurtado

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

The Future of Law (Part Six): What’s Trending?

rhodesWe’re looking at trends in the law, and wondering out loud where they might be going. Since we’ve been talking about the democratization of knowledge, we’ll let Wikipedia tell us about trend analysis:

Trend Analysis is the practice of collecting information and attempting to spot a pattern, or trend, in the information. In some fields of study, the term “trend analysis” has more formally defined meanings.

The anonymous article writers (they’re from the U.K., I’d guess, because they spell “behaviour” with a “u”) tell us that some kinds of trend spotting are all about the numbers:

In project management trend analysis is a mathematical technique that uses historical results to predict future outcome. This is achieved by tracking variances in cost and schedule performance. In this context, it is a project management quality control tool.

In statistics, trend analysis often refers to techniques for extracting an underlying pattern of behaviour in a time series which would otherwise be partly or nearly completely hidden by noise. A simple description of these techniques is trend estimation, which can be undertaken within a formal regression analysis.

We learned regression analysis in the MBA program. I used it for years in my practice. It told me our revenues were somewhat seasonal. I might have figured that out some other way…

And then there’s Investopedia’s definition of trend analysis, which is a cousin to project management. Both try to predict the future by what happened in the past — driving forward by looking in the rearview mirror. Good luck with that.

Finally, Wikipedia sort of gives up and says

Today, trend analysis often refers to the science of studying changes in social patterns, including fashion, technology and consumer behavior.

That’s more like what we’re doing in this series, although I wouldn’t call it “science.” Art on a good day; guesswork any other.

Finally, here’s a trend analysis term I’d never heard until Wikipedia told me about it: coolhunting. That sounds like those messages I get online: See what’s trending on Facebook! See what’s trending on Twitter! Usually it’s some celebrity’s off-camera or off-field drama. I always wonder if I’m supposed to care.

The point is, someone cares about all of this. And if that someone cares enough to jump into a trend, and enough other people do the same, then we’ll all need to care, because the trend just moved from outliers to early adopters to mainstream. At that point, we’re all going along for the ride, like it or not.

Trends aren’t destinations, they’re movements of human energy. As soon as people start engaging with the trend, they affect where it’s going — shaping, redirecting, resisting, thwarting, or bulldozing it through. Trends are collective; we’re not the only ones steering the ship. If we jump onboard, there’s no assurance we’ll end up anywhere we think.

In the coming installments of this series, we’ll continue to look at changes in “social patterns, including fashion, technology and consumer behavior” (well, not fashion) that are affecting the law, and make predictions about them. Think of these not as possible outcomes, but as energies. Some will accelerate in size, speed, and impact — those we’ll need to reckon with. Others will fade away — like all that momentary coolness on Facebook and Twitter. Along the way, some of us might want to dive in and see if we can shape some of these trends the way we’d like.

Kind of like the rainstorm game I used to play as a kid, damming up water pouring along the gutter.

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 exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

Tenth Circuit: FTCA Claims Subject to Jurisdictional Time Limitations

The Tenth Circuit Court of Appeals issued its opinion in Barnes v. United States on Wednesday, January 21, 2015.

Larry Barnes was indicted in Oklahoma federal court for two crimes related to possession and distribution of methamphetamine. He was convicted and sentenced to two concurrent 66-month sentences. Barnes appealed. While his appeal was pending, the government acquired evidence that testimony of an ATF agent, a Tulsa police officer, and a confidential informant had been fabricated, and asked the court to vacate Barnes’ conviction and immediately release him from prison. The court granted that motion on July 2, 2009.

Seeking redress, Barnes filed administrative tort claims with the BATF on May 20, 2010. Receiving no response from the BATF, Barnes filed a civil lawsuit in Oklahoma state court on May 13, 2011, which the government removed to federal court. On September 23, 2011, the BATF filed a motion to dismiss for lack of subject matter jurisdiction, arguing that since the FTCA vests exclusive jurisdiction over federal tort claims in the federal district court, and removal jurisdiction requires a colorable state court claim, and plaintiffs had no jurisdiction in state court, the federal court therefore lacked jurisdiction as well. On October 25, 2011, while its motion to dismiss was pending, the BATF notified Barnes via certified mail of its formal denial of the administrative claims. The letter specifically advised that any appeal must be filed within six months of the date of  mailing of the letter, or by April 25, 2011.

On March 23, 2012, the federal district court granted the BATF’s motion to dismiss, and dismissed the case without prejudice. On August 22, 2012, Barnes filed a second lawsuit in federal district court. The BATF again moved to dismiss, this time for lack of jurisdiction under F.R.C.P. 12(b)(1) due to the lawsuit being time-barred. The district court granted the motion to dismiss and Barnes appealed.

The Tenth Circuit analyzed the provisions of 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b), and found the two sections acted like “book-ends” for the time limit to file an FTCA claim. Barnes argued that his second lawsuit was timely because he was filing under § 2675(a)’s “deemed denial” provision, but the Tenth Circuit found that the BATF’s October 25, 2011 letter explicitly triggered § 2401(b)’s six-month limitations period. The Tenth Circuit found that the court lacked jurisdiction due to the time-bar.

The Tenth Circuit also analyzed Supreme Court precedent in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990), regarding jurisdictional bars and equitable estoppel. After a lengthy analysis, the Tenth Circuit concluded it was bound by previous circuit precedent to apply a jurisdictional bar to FTCA claims. Even analyzing Barnes’ claims under equitable estoppel principles, though, the Tenth Circuit still found no relief for Barnes, because he could not show “affirmative misconduct” by the BATF.

The Tenth Circuit found that the district court correctly dismissed the claims, but incorrectly did so with prejudice. Claims subject to a jurisdictional bar are properly dismissed without prejudice. The Tenth Circuit affirmed the judgment of the district court but remanded for correction of the dismissal as without prejudice.

Tenth Circuit: Fourth Amendment Does Not Require Judge’s Signature on Search Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cruz on Monday, December 22, 2014.

Raul Cruz was convicted by a jury of knowingly and intentionally possessing methamphetamine with intent to distribute and sentenced to 63 months’ imprisonment. His conviction and sentence were affirmed on direct appeal. Cruz subsequently filed a motion to vacate, set aside, or correct his sentence, alleging his trial counsel was ineffective for failing to move to suppress evidence uncovered during the search of his residence pursuant to an unsigned search warrant. The district court denied relief on this assertion, and Cruz appealed.

The Tenth Circuit found, upon examination of the record, that the affidavit and warrant had been presented to a New Mexico district judge on March 26th, 2010. The judge signed the signature lines on the affidavit but neglected to sign the warrant at that time. Officers executed the warrant on March 29, 2010, and found methamphetamine, horse steroids, cash, and false identification. Officers found no evidence of drug use in the home or by Cruz. Cruz admitted to possession of the drugs but not intent to distribute. Approximately a month later, the judge signed the warrant, dated it March 26, 2010, and wrote “Nunc Pro Tunc on this April 23, 2010″ below the date line.

Cruz asserted that his counsel should have moved to suppress the evidence seized during the search of his residence, as well as his subsequent statements to police about the fruits of the search, because the unsigned warrant was not “issued” by a judge. Cruz claims that such motion would have been meritorious and would ultimately have led either to dismissal of the charges against him or his acquittal at trial. The Tenth Circuit disagreed, finding instead that nothing in the text of the Fourth Amendment conditions the validity of a warrant on its being signed. The First Circuit recently dealt with surprisingly similar facts and rejected the defendant’s argument, concluding that nothing in the Fourth Amendment required the judge who made the probable cause determination to also sign the warrant. The Tenth Circuit exhaustingly examined the meaning of the term “issue” under the Fourth Amendment, and found no reason to impose conditions on a validity of a warrant that were not set forth by the Fourth Amendment itself. The Tenth Circuit therefore concluded that there was no support for an inference that Cruz’s counsel’s motion to suppress would have been meritorious, and found no deficient performance of his counsel.

The district court’s judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 2/18/2015

On Wednesday, February 18, 2015, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Fidelity & Guaranty Life Ins. Co. v. Litchfield

Morales-Pantoja v. Holder

United States v. Mangum

Burrell v. Colvin

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

Colorado Supreme Court: Announcement Sheet, 2/17/2015

On Tuesday, February 17, 2015, the Colorado Supreme Court issued two published opinions.

Doyle v. People

Craft v. Philadelphia Indemnity Insurance Co.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Error for Trial Court to Take Judicial Notice of Defendant’s Absence in Court

The Colorado Supreme Court issued its opinion in Doyle v. People on Tuesday, February 17, 2015.

Colorado Rules of Evidence—Judicial Notice.

Defendant petitioned for review of the court of appeals’ judgment affirming his conviction for violating a condition of his bail bond. At the request of the prosecution, the trial court took judicial notice of the fact that defendant failed to appear in court on a particular day, as mandated by the relevant condition of his bond. The court instructed the jury that although it need not accept this judicially noticed fact as true, a judicially noticed fact is one that the court has determined is not the subject of reasonable dispute and one that the court has accepted as true.

The Supreme Court reversed. The resolution of a factual matter at issue in a prior judicial proceeding does not become an indisputable fact within the contemplation of CRE 201 because it was reflected in a court record. Accordingly, the trial court erred in taking judicial notice that defendant failed to appear in court on a particular day. Because the jury was instructed that this judicially noticed fact was not subject to reasonable dispute and had already been accepted as true by the court, the error was not harmless.

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

Colorado Supreme Court: Excusing Noncompliance with Date Certain Coverage Period Would Fundamentally Alter Terms of Insurance Contract

The Colorado Supreme Court issued its opinion in Craft v. Philadelphia Indemnity Insurance Co. on Tuesday, February 17, 2015.

Claims-Made Insurance Policies—Notice Requirements in Insurance Policies—Notice-Prejudice Rule.

In this opinion, the Supreme Court answered a question of state law certified by the U.S. Court of Appeals for the Tenth Circuit. The question, as reframed by the Court, was whether Colorado’s notice-prejudice rule applies to a date-certain notice requirement in a claims-made insurance policy. The Court concluded that excusing noncompliance with such a requirement would alter a fundamental term of the insurance contract and would not serve the public policy interests that originally supported the adoption of the notice-prejudice rule. Accordingly, it answered the question in the negative and returned the case to the Tenth Circuit for further proceedings.

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

Tenth Circuit: Unregistered Firearm Charge Upheld Even Where Defendant Could Not Register Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Berres on Wednesday, January 21, 2015.

Bryan Berres entered a propane company in Oklahoma and set his backpack by the front door. Berres first asked if he could call his wife, then requested employees call an ambulance to take him to the VA hospital. Employees, suspecting Berres needed psychiatric treatment, called the ambulance. Medical personnel asked Berres if he had weapons. He relinquished a knife and said he had a .38 pistol in his bag. Police were called, and when they questioned Berres about the bag, he told police it also contained a flash bang device, electric matches, 8″ leads, and squibs. The propane company was evacuated, and Berres was transported to the hospital.

While at the hospital, an ATF agent from the Drug and Violent Crime Task Force interviewed Berres about the contents of the bag. Berres was “more than willing” to talk with the agent, and relayed that the bag contained a flash bang device, a .38 pistol, about 50 feet of Class C squib, about 70 feet of red paper fuse, two pounds of black powder, and night vision goggles. Berres relayed that he was taking the items to a wooded area to “get the government out of his body.” The agent spoke with the ATF officers at the propane store and they safely opened the backpack, finding a flash bang device, two cans of black powder, six feet of cannon fuse, 36 electric matches, 60 feet of quick match fuse, a .38 pistol, nearly 300 rounds of .38 ammunition, and 30 rounds of .223 ammunition. Berres was subsequently placed on a 72-hour mental health hold by hospital personnel.

Berres was eventually charged with three counts of possession of unregistered firearms, one for the flash bang device (Count 1) and two for combinations of parts from which an explosive device can be readily assembled (Counts 2 and 3). He filed a motion to dismiss, arguing that Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device, and that Counts 2 and 3 were multiplicitous. He also filed a motion to suppress the statements he made to the ATF agent at the hospital. The district court denied his motions but said that he could raise his multiplicity argument again at trial. Berres pled guilty before trial, specifically reserving his right to appeal.

On appeal, Berres argued first that his conviction on Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device as a transferee; flash bang devices must be registered by the maker or transferor and the transferee must be identified as part of the registration process. The Tenth Circuit, however, found that even though Berres could not register the device, it was legally registrable, and therefore the Tenth Circuit upheld his conviction on this count.

Berres next argued that Counts 2 and 3 failed to state an offense, because there is no duty to register an explosive device until it is assembled. The Tenth Circuit disagreed. The Tenth Circuit found that the statutory language “any combination of parts” precluded Berres’ argument. Berres next argued that Counts 2 and 3 were multiplicitous, since he could only make one explosive device from the parts. However, the indictment listed each can of black powder as a single ingredient, so the combinations of black powder canisters, cannon fuse, and electric matches could have been used to make more than one explosive device. The Tenth Circuit found no double jeopardy in the two counts.

Finally, Berres argued that his statements to the agent at the hospital should have been suppressed. The Tenth Circuit examined the circumstances of the interview and found it to be non-custodial. Berres was at the hospital at his own request, he was seated by the door during the interview, and he stated he was “more than willing” to talk with the agent. The Tenth Circuit found no error in allowing Berres’ statements.

The Tenth Circuit affirmed the district court.