April 20, 2019

Archives for April 23, 2015

e-Legislative Report: April 22, 2015

legislationCBA Legislative Policy Committee

For readers 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 on requests from the various sections and committees of the Bar Association.

The following bills were discussed at the LPC last week. Other bills of interest from that agenda are tracked and updated below.

HB 15-1327—Limit Proxy Marriages To Military & Contractors
Sponsors: Rep. Ginal (D), Rep. Roupe (R) & Sen. Cooke (R), Sen. Garcia (D)
The LPC reviewed this legislation (which had passed through its first committee hearing on Thursday, April 16). The consensus of Bar members and sections weighing in was that this bill was an important tool to fight trafficking and to restrain the statute to its original intent (marriage to military personnel and related contactors). The Bar will work with the sponsors to secure passage as the bill moves forward.

HB 15-1359—Savings Program For Persons With Disabilities
Sponsors: Rep. Danielson (D), Rep. Landgraf (R) & Sen. Kefalas (D), Sen. Martinez Humenik (R)
The LPC voted to support this legislation at the request and analysis of the Elder Law Section. The bill authorizes the Department of Higher Education to set up a 529 like savings program for individuals with disabilities—and parallels work that the section was already doing. This bill is supported by the department, and has a favorable path at this point in the session.

Bills that the LPC is monitoring, watching or working on can be found at this link on Priority Bill Track.

At the Capitol—Week of April 10

HB 15-1218—No Contact With Defense-initiated Victim Outreach 
We reached out to the sponsors to communicate that the CBA supported the American Bar Association’s position on this (and similar bills in other states) Bill was amended and made better. No LPC action needed.

HB 15-1285—Law Enforcement Use Of Body-worn Cameras 

HB 15-1286—Police Misconduct Court Require Prosecution

HB 15-1290—Stop Police Interference Cop Incident Recording
The CBA supports these three bills and they are moving forward in the legislative process. The LPC discussed and reviewed the “police package” of legislation, ultimately taking a position in support of these bills as aligned with the advancement of the practice of law.

SB 15-129—Preserving Parent-Child relationships 
This bill was heard in committee on April 16. The bar, through its Family Law section and the LPC was opposed to the bill insofar as it turned the long standing “best interest of the child standard” on its head—substituting the rights of divorcing parents as the preeminent consideration in awarding parenting time. There wasa great deal of testimony (26 opponents and 17 proponents), and after 7 hours of testimony it was PI’d 9 to 4. The Bar was a key opponent and our testimony was very persuasive.

SB 15-181—Immediate Appeal Order Appointing Receiver
This bill has been calendared in the House. We continue to work to oppose the bill notwithstanding the many amendments that have carved out various constituencies and interests. The position of the Bar is that this is not well crafted legislation—and the wrong approach to addressing a legitimate problem.

New Bill of Interest

There are several new bills introduced each week of the session (even with only two weeks left). This is one that each lawyer will want to be aware of:

HB 15-1371—Exempt Lawyer Trust Acct Funds From Unclaimed Prop
Sponsors: Rep. Pabon (D), Rep. Willett (R) & Sen. Johnston

The bill creates an exemption from the “Unclaimed Property Act” for funds held in Colorado lawyer trust account foundation trust accounts, commonly known as lawyer COLTAF trust accounts.

Small Common Interest Community Exemption and Electronic Public Trustee Foreclosure Bills Signed

On Tuesday, April 21, 2015, Governor Hickenlooper signed two bills into law. He has signed 138 bills to date this legislative session. The two bills signed Tuesday are:

  • HB 15-1095 – Concerning the Extension of an Exemption Under the “Colorado Common Interest Ownership Act” for Certain Small Common-Interest Communities to Include Communities Created Before July 1, 1992, Whose Declarations Limit Their Annual Common Expense Liability to No More than Three Hundred Dollars, by Rep. Terri Carver and Sen. Kevin Lundberg. The bill provides an exemption from certain provisions of the CCIOA for HOAs whose annual expenditures are less than $300 as established by bylaws or declarations.
  • HB 15-1142 – Concerning the Conduct of Foreclosure Sales by a Public Trustee, and, in Connection Therewith, Authorizing the Conduct of Foreclosure Sales Through the Internet and Other Electronic Media and Authorizing the Collection of Fees Through Electronic Transfer, by Rep. Beth McCann and Sen. Lucia Guzman. The bill allows public trustees or sheriffs to conduct foreclosure sales electronically and establishes procedures for electronic sales.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Announcement Sheet, 4/23/2015

On Thursday, April 23, 2015, the Colorado Court of Appeals issued nine published opinions and 33 unpublished opinions.

People v. Clark

People v. Lopez

Soicher v. State Farm Mutual Automobile Ins. Co.

People v. Campos

McShane v. Stirling Ranch Property Owners Association

L&R Exploration Venture v. CCG, LLC

Auxier v. McDonald

Nagl v. Industrial Claim Appeals Office

Teller County v. Industrial Claim Appeals Office

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.

Tenth Circuit: Federal Revocation Proceeding Inappropriate Venue for Collateral Attack on State Court Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Engles on Wednesday, March 4, 2015.

Billy Engles, a registered sex offender, was on federal supervised release for an unrelated offense when he accompanied his then-girlfriend to her daughter’s high school to update emergency contact information. He was at the school for approximately ten minutes. A school employee recognized Engles as a sex offender and reported his visit. Engles was charged with violating Oklahoma’s Zone of Safety Around Schools Statute, which prohibits sex offenders from “loitering” on or around schools. Engles argued in state court that he was not “loitering” because his visit to the school was for a specific purpose and was very short, but he was ultimately convicted. He is appealing his state court conviction.

The federal court revoked Engles’ supervised release based on the state court conviction, and Engles appealed. On appeal, however, Engles did not dispute that his criminal conviction provided an adequate evidentiary basis for revocation of release, but rather argued that the conduct complained of in Oklahoma state court did not constitute “loitering.” The Tenth Circuit characterized Engles’ argument on appeal as a straightforward collateral attack on his state court conviction. Noting that Engles must challenge his conviction in state court rather than through a collateral attack in the revocation proceeding, the Tenth Circuit affirmed the revocation of Engles’ supervised release. In a footnote, the Tenth Circuit added that nothing in its opinion prevented Engles from filing a future motion to vacate his supervised release revocation, should he prevail in his state court appeal.

Tenth Circuit: Extender Statute Cannot be Tolled by Agreement of the Parties

The Tenth Circuit Court of Appeals issued its opinion in National Credit Union Administration Board v. Barclays Capital, Inc. on Tuesday, March 3, 2015.

The National Credit Union Administration Board (NCUA), acting in its role as conservator for failing credit unions, investigated the failure of two major credit unions and found they had failed because they had relied upon misrepresentations in offering documents about residential mortgage-backed securities (RMBS) that were essentially junk loans. The NCUA began pursuing remedies against the issuers and underwriters of the RMBS and began settlement negotiations with Barclays and other defendants (collectively, Barclays). During the pendency of the settlement negotiations, the NCUA entered into contracts with Barclays that averred the statute of limitations would be tolled during the settlement negotiations and also that Barclays would not assert untimeliness as a defense in any ensuing litigation.

When the settlement negotiations failed, the NCUA initiated these actions, asserting violations of Sections 11 and 12(a)(2) of the Securities Act, as well as state securities claims under the blue sky laws of Kansas and California. Barclays moved to dismiss for failure to state a claim on several grounds, including untimeliness. Barclays initially honored the tolling agreement but argued the claims were time-barred by the Securities Act’s three-year statute of repose. The NCUA responded that the statute of repose was inapplicable to these cases and instead the Federal Credit Union Act’s “Extender Statute” applied, providing a three-year statute of limitations.

While the actions were pending, the district court issued an opinion in a different case, ruling that contractual tolling was not authorized under the extender statute. Barclays then amended its motion to dismiss based on the different ruling. The district court granted the motion to dismiss, holding the claims were covered by the Extender Statute and not the statute of repose, and that tolling could not be contractually waived. The NCUA appealed.

The Tenth Circuit first determined that the district court correctly applied the Extender Statute and not the statute of repose. The Tenth Circuit recently ruled that the Extender Statute supplants all other time limits. Explaining the difference between statutes of limitations and repose, the Tenth Circuit noted that statutes of repose cannot be equitably tolled and act as an absolute time-bar, whereas statutes of limitations are frequently tolled and are affirmative defenses rather than absolute bars. After analyzing the specific language of the Extender Statute, however, the Tenth Circuit found it explicitly and unambiguously stated it could not be tolled by contract. Nevertheless, the Tenth Circuit reversed the district court’s dismissal, finding that Barclays promised not to assert the affirmative defense of the statute of limitations and it should be held to its promise.

The Tenth Circuit reversed and remanded for further proceedings consistent with its opinion.

Tenth Circuit: Unpublished Opinions, 4/23/2015

On Thursday, April 23, 2015, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Fox-Rivera v. Colorado Department of Public Health & Environment

Barnhill-Stemley v. Colvin

United States v. Schanze

Li v. Holder

Montano v. Public Service Co. of New Mexico

Montiel-Hernandez v. Holder

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

The Future of Law (Part 15): Law by Algorithm (mylaw.com)

[A few posts back, we noted legal futurist Richard Susskind’s opinion that commoditization would improve access to legal advice in the future, in what he termed the “latent legal market.” Would that include clients of moderate means? I think so. As an example, consider this offering last week re: creating a virtual office to serve this market — yet another example of how technology is creating the new world of law.]

rhodesGoogle customizes the news you see. Amazon suggests if you like this, you might like that. Your cellphone carrier, bank, and pretty much everybody else you deal with on a regular basis gives you the option to customize your own account page.

  • The new commoditized/democratized purveyors of legal products will also give this option to consumers. The days of “mylaw.com” are upon us.

Welcome to law by algorithm: artificial Intelligence at work, serving up the customized law you need personally and for your work and business. And you don’t have to go looking for it — it will come to you automatically, based on your preference settings and past choices.

  • Law by algorithm will enable consumers to self-diagnose legal issues and access legal “remedies” for what ails them.
  • We’ll also see online diagnostic networks geared for legal professionals only — similar to those that already exist for physicians.

Think WebMD. And yes, we will see WebJD — someone is already working on it. Also check out A2J Author, sponsored by the Center for Access to Justice & Technology, a project of the Chicago-Kent School of Law. The Center’s purpose is “to make justice more accessible to the public by promoting the use of the Internet in the teaching, practice, and public access to the law.” And for a thoughtful introduction to online legal diagnosis, see this blog post by Stephanie Kimbro, MA, JD, a Fellow at Stanford Law School Center on the Legal Profession and Co-Director of the Center for Law Practice Technology. The post was written four years ago — an eternity in the tech world — but it’s still worth a read.

  • Law by algorithm will take us all the way to its extreme expression: to open source law.

For an introduction to this topic, see this Forbes review of open source as applied to the law. It was written in 2008 — again, ancient techno history. Seven years later, open source law is no longer mere speculation; we are already living in the Outer Limits (remember that show?) of this future legal reality.

We aren’t talking here about the law concerning open source software (like this and this). We’re talking about open source practice applied to the law itself. In his book The End of Lawyers, Richard Susskind describes open source law as sustained, online, mass collaboration re: the application and creation of the law, where content is user-generated, derived from public sources such as judicial and regulatory filings. Open source users engage with this data, extracting, analyzing, applying, and creating the law they need.

Thus open source law takes the creation of the law out of the exclusive hands of lawyers and the legal system as we have known it, and instead puts it into the hands of end-users, using artificial intelligence algorithms that incorporate the best of “thinking like a lawyer.” (Without, we might add, the risk that the lawyer doing the thinking might be suffering from stress-related cognitive impairment.)

Which takes us back to the topic we looked at last time: the place of human legal experts in the future of law. We’ll look at that topic again next time, with a new twist.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

Tenth Circuit: “Particular Social Group” Need Not Be Visibly Distinct But Must Have Distinguishing Characteristic

The Tenth Circuit Court of Appeals issued its opinion in Rodas-Orellana v. Holder on Monday, March 2, 2015.

Benjamin Rodas-Orellana entered the United States on or around September 6, 2006, when he was 17 years old, and DHS commenced removal proceedings on September 16, 2006. Mr. Rodas-Orellana appeared before an IJ on August 28, 2007, and conceded removability but applied for asylum and withholding of removal, indicating he sought to escape poverty and gang violence in El Salvador. Mr. Rodas-Orellana specifically contended that the MS-13 gang had pressured him to join in the past and he had resisted, and this constituted a well-founded fear of persecution because of his membership in a particular social group, specifically young Salvadoran males who refused to join the gang.

On June 28, 2012, the IJ denied Mr. Rodas-Orellana’s applications for asylum and withholding of removal, finding that although Mr. Rodas-Orellana had suffered in the past at the hands of gang members, he had indicated no reason for him to be targeted by gang members other than their general desire to control the population in their areas. The IJ further concluded that Salvadoran youth who have resisted recruitment by gangs do not constitute a particular social group. Mr. Rodas-Orellana appealed to the BIA, who rejected his appeal in a January 22, 2014 final order of removal. The BIA agreed with the IJ that Mr. Rodas-Orellana’s rejection of gang membership did not place him in a particular social group, and also that perceived American nationality did not constitute a particular social group. On March 11, 2014, Mr. Rodas-Orellana filed a motion to reconsider with the BIA in light of two recent decisions, but the BIA denied his motion on May 1, 2014. On June 13, 2014, Mr. Rodas-Orellana filed a motion to consolidate his two BIA appeals, which the Tenth Circuit granted.

The Tenth Circuit reviewed the two BIA denials to consider (1) if the BIA erred in determining Mr. Rodas-Orellana was not a member of a particular social group, in light of recent BIA decisions on the issue, and (2) if the BIA erred in determining Mr. Rodas-Orellana was not persecuted based on his membership in a particular social group.

The Tenth Circuit first examined the BIA’s interpretation of the term “particular social group,” especially in light of the two recent BIA decisions narrowing its definition. The Tenth Circuit determined that a group need not be literally visibly distinguishable to constitute a “particular social group” but must have some special characteristic enabling recognition of group members. The Tenth Circuit found Mr. Rodas-Orellana failed to prove that his proposed group of young Salvadoran males who resist gang membership is socially distinct. The Tenth Circuit’s 2012 decision in Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012), where a young Salvadoran female who resisted gang membership was denied asylum, controlled as to Mr. Rodas-Orellana. Although the record reflected that gang activity is not well controlled in El Salvador, nothing suggested that Mr. Rodas-Orellana belonged to a group more susceptible to gang violence than general members of the population.

The Tenth Circuit denied Mr. Rodas-Orellana’s petition for review, finding no evidence that Mr. Rodas-Orellana was a member of a particular social group or that he was persecuted because of that membership.

Tenth Circuit: Garcetti/Pickering Test Applies to Pretextual Termination of Police Officer

The Tenth Circuit Court of Appeals issued its opinion in Seifert v. Unified Government of Wyandotte County/Kansas City, Kansas on Friday, February 27, 2015.

Max Seifert was a reserve deputy for the Wyandotte County Sheriff’s Department in Kansas. In July 2003, Barron Bowling was involved in a minor car accident with a DEA agent, after which the DEA agent and another agent pulled Bowling from the car and pummeled, kicked, and insulted him while he was forced to lay shirtless on hot pavement. Seifert, then a detective with the Kansas City, Kansas Police Department (KCKPD), investigated the incident and documented the agents’ misconduct, despite pressure from others in the KCKPD to cover up the facts. He testified at Bowling’s criminal trial in 2005, and was forced into retirement from the KCKPD later that year.

Seifert then received a commission as a reserve deputy with the Wyandotte County Sheriff’s Department (WCSD). From January 2006 to June 2009, he assisted the WCSD with criminal investigations to satisfy his requisite 16 hours per month of volunteer time. In June 2009, KCKPD and the Unified Governments settled their claims with Bowling, and five days later, Seifert was removed from investigations by the WCSD. Seifert’s supervisor, undersheriff Roland, informed Seifert that the Wyandotte County District Attorney and an AUSA refused to accept cases involving Seifert because of concerns about his credibility. Roland also informed Seifert that by department rule he could not continue his work as a reserve deputy while simultaneously maintaining a civilian position in the jail. Seifert met with the police captain shortly thereafter, who told him there was no such rule precluding dual roles. Seifert also encountered the DA, who relayed it was not his office that had problems with Seifert but people in other jurisdictions.

In early 2010, the reserves supervisor asked Roland if he could have Seifert conduct training of other officers, since there was no other reserve work, but Roland would not allow it, citing the credibility issue. The trial of Bowling’s claims with the remaining defendants began on March 1, 2010, and Seifert testified on March 4 and 9. On April 8, 2010, the trial concluded. Five days later, Seifert received a memorandum signed by Roland and the reserves supervisor with Sheriff Ash copied, stating Seifert’s service as a deputy was no longer needed.

Seifert brought claims in federal district court under §§ 1983 and 1985 and under Kansas state law, all of which alleged that the actions against him were taken to deter him from testifying for Bowling or punish him for doing so. His § 1983 claims alleged defendants’ actions violated his First Amendment rights, and the § 1985 claims violated that statute’s prohibition against conspiracies to deter witnesses from testifying. The district court granted defendants’ motion to dismiss based on the two-year time bar in §§ 1983 and 1985 and granted summary judgment to defendants on all remaining claims. Seifert appealed.

The Tenth Circuit first evaluated the 2014 Supreme Court decision in Lane v. Franks, 134 S. Ct. 2369 (2014), which evaluated free speech concerns in the context of a government employee testifying as a citizen based on events discovered while in the employee’s official capacity. Turning to the instant case, the Tenth Circuit applied the five-pronged Garcetti/Pickering test. Defendants disputed the first, fourth, and fifth prongs, and the Tenth Circuit analyzed them in turn. Lane directly impacted the first prong, whether the speech was made pursuant to the employee’s official duties. Plaintiff’s testimony in this case was protected speech, because he was testifying as a citizen about matters that concerned his work but were not part of it. Although police officers routinely testify as part of their work, plaintiff’s testimony in the Bowling case was different from routine testimony given by police officers at standard trials. The Tenth Circuit found that plaintiff satisfied the first prong.

Since the second and third prongs were not in dispute, the Tenth Circuit turned to the fourth prong—whether the protected speech was a motivating factor in the adverse employment action. The Tenth Circuit found the timing suspicious for both of plaintiff’s adverse employment actions. Likewise, it found defendants’ proffered excuse, i.e., plaintiff’s “Giglio problem,” not credible because the adverse order involving Seifert was remote in time, Seifert had testified in several matters since then, Roland had a similar adverse order that did not affect his employment, the impeachment evidence against Seifert would not be significantly helpful to defense counsel, and it likely would not matter at all in state court.

The Tenth Circuit next evaluated the fifth prong, whether defendant would have reached the same employment decision regardless of the testimony. The Tenth Circuit found that plaintiff satisfied this prong as well, as defendant’s proffered explanations for termination of Seifert were pretextual as explained in the analysis of the fourth prong. The Tenth Circuit therefore reversed summary judgment on plaintiff’s § 1983 claim against the Unified Government. However, the Tenth Circuit  affirmed qualified immunity against Roland and Ash individually, as they could not reasonably have been expected to know the impact of Lane on their actions as employers since the actions predated Lane by several years.

Turning next to the § 1985 claim, the Tenth Circuit found sufficient evidence that Seifert was punished for testifying in the Bowling matters, and reversed on this claim. Because Roland and Ash did not raise individual qualified immunity arguments, the Tenth Circuit did not evaluate them. Finally, the Tenth Circuit affirmed the district court’s dismissal of Seifert’s state law claims, finding a sufficient remedy existed in federal court.

The judgment was affirmed in part, reversed in part, and remanded. Plaintiff’s motion to seal was granted.

Tenth Circuit: Waivers of Inadmissibility Only Precluded for Individuals Who Became LPRs at Time of Admission

The Tenth Circuit Court of Appeals issued its opinion in Medina-Rosales v. Holder on Tuesday, February 24, 2015.

Carlos Jovany Medina-Rosales entered the United States at an unknown date and became a lawful permanent resident (LPR) on November 27, 2001. On August 8, 2013, he was convicted of grand larceny in Oklahoma state court, and DHS began removal proceedings a month later. The notice of removal ordered him to appear before an immigration judge in Dallas, even though the issuing officer was in Tulsa. Medina-Rosales appeared in front of the Dallas IJ via videoconference. He conceded removability but sought a waiver of inadmissibility under § 1182(h). The IJ determined Tenth Circuit law applied, despite his physical location in Dallas, and determined Mr. Medina-Rosales was ineligible for a waiver of inadmissibility. The BIA dismissed Mr. Medina-Rosales’ appeal, and Mr. Medina-Rosales petitioned the Tenth Circuit for review.

The Tenth Circuit determined as a preliminary matter that Tenth Circuit law applied, since the charging document determines the location of the proceeding and in this case the charging document was issued in Tulsa. The IJ’s presence in Dallas did not change the location of the proceedings.

The Tenth Circuit next addressed whether § 1182’s waiver of inadmissibility language applies to individuals who became LPRs at some point after admission into the United States. Most circuits to have addressed the issue agree that the plain language of § 1182 contemplates that it only applies to individuals who were admitted at the time they became LPRs, but the Tenth Circuit had not addressed the issue.

After examining the language of § 1182, the Tenth Circuit agreed with the other circuits that the statute only precluded waivers of inadmissibility for those individuals who were admitted at the same time they became LPRs. Because Mr. Medina-Rosales was admitted at some undetermined time prior to becoming an LPR, the language did not apply to him. Despite the seemingly illogical conclusion that Congress intended the statute only to apply to those who were admitted at the same time they became LPRs, the Tenth Circuit found that Congress had ample opportunity to amend the statute and had not done so.

The Tenth Circuit found Mr. Medina-Rosales to be eligible for discretionary consideration of waiver of inadmissibility under § 1182 and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 4/22/2015

On Wednesday, April 22, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Fritts

Rodriguez-Leiva v. Holder

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