April 25, 2019

Archives for May 20, 2015

The Future of Law (Part 19): Don’t Wait, Create!

rhodes“The best way to predict the future is to create it.”

The quote has been ascribed to a lot of different people, including Peter Drucker and computer scientist Alan Kay. But according to the Quote Investigator:

The earliest evidence appeared in 1963 in the book “Inventing the Future” written by Dennis Gabor who was later awarded a Nobel Prize in Physics for his work in holography.

We are still the masters of our fate. Rational thinking, even assisted by any conceivable electronic computers, cannot predict the future. All it can do is to map out the probability space as it appears at the present and which will be different tomorrow when one of the infinity of possible states will have materialized. Technological and social inventions are broadening this probability space all the time; it is now incomparably larger than it was before the industrial revolution—for good or for evil.

The future cannot be predicted, but futures can be invented. It was man’s ability to invent which has made human society what it is. The mental processes of inventions are still mysterious. They are rational but not logical, that is to say, not deductive.

I.e., we can speculate — as we’ve been doing in this series — about where present trends might take us, but it’s useful to remember that “we are still the masters of our fate.” We can shape where those trends take us by engaging with them, and thus we can invent the future — the future we want, not just the one that will happen to us.

As Dr. Gabor points out, the process by which we do that is “rational but not logical.” We looked at the mindfulness trend earlier In this series. In that spirit, how about we might try a mindfulness approach to creating the future for ourselves? If you’re game, here’s a simple exercise in four steps:

  1. Pick one of the predictions I’ve made. Go ahead, we’ll wait. Is there one in particular that has a lot of energy for you, so that when you read it you say, “Oh yeah!” Or if there are several, is there a theme that runs across them? Don’t over-think – just go where you feel a tug – the stronger the better.
  2. Express it as a goal or intention — something you are committed to making happen. Complete this sentence, filling in the blank: “My response to this prediction is to create ________________.” Maybe it’s a career or practice shift, or something personal. It doesn’t matter what your goal is. What matters is your commitment to it.
  3. Beatify it. Yes, you read that right. No, we’re not making anyone a saint here, we’re using “beatify” in the sense of “extreme blissful happiness.” Yes, you read that right, too. What we’re after here is to take your goal/intention and take it to an extreme level of emotional reward/satisfaction. What would creating it give you that you don’t have now and would really like to have? How would it revolutionize you, your career?
  4. Watch where your thoughts go with this. What ideas and feelings come up?. Be prepared to write fast and take good notes — the energy of the idea that grabbed you plus your commitment to it will pop the cork on your creativity.

That’s it. Have fun with it. Use it for as many predictions as you like. And then…

Welcome to the future — the one you’re creating.

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.

Bills Regarding Community Association Manager Licensure, Peace Officer Transparency, and More Signed

On Wednesday, May 20, 2015, Governor Hickenlooper signed 14 bills into law. To date, he has signed 241 bills into law this legislative session. The bills signed Wednesday are summarized here.

  • HB 15-1323 – Concerning Assessments in Public Schools, and, in Connection Therewith, Codifying the Consensus Recommendations of the Standards and Assessments Task Force Created in House Bill 14-1202, and Reducing an Appropriation, by Reps. John Buckner & Jim Wilson and Sens. Chris Holbert & Andy Kerr. The bill modifies the system of statewide assessments in English language arts.
  • SB 15-056 – Concerning Reducing the Frequency of Administering the Statewide Assessment in Social Studies and, in Connection Therewith, Making an Appropriation, by Sen. Andy Kerr and Rep. Tracy Kraft-Tharp. The bill eliminates the requirement that each public school administer an assessment in social studies and instead allows school districts to administer the test in a representative sampling of schools.
  • HB 15-1317 – Concerning Pay for Success Contracts, by Reps. Alec Garnett & Bob Rankin and Sens. Michael Johnston & Beth Martinez Humenik. The bill creates “pay for success” contracts, into which the Office of State Planning and Budgeting can enter to increase economic opportunity and improve living conditions.
  • HB 15-1129 – Concerning Disaster Prediction and Decision Support Systems by the Department of Public Safety, and, in Connection Therewith, Making an Appropriation, by Rep. Tracy Kraft-Tharp and Sen. Ellen Roberts. The bill requires the Division of Fire Prevention and Control to develop systems to predict disasters, specifically wildfires.
  • HB 15-1344 – Concerning the Financing of State Capital Construction Projects that are Included in the National Western Center or Capitol Complex Master Plans, and, in Connection Therewith, Authorizing the State to Enter Into Lease-Purchase Agreements to Finance Facilities for Colorado State University that are Included in the National Western Master Plan, Creating the National Western Center Trust Fund, and Creating a Capitol Complex Master Plan Implementation Fund as a Funding Source for Projects that are Included in the Capitol Complex Master Plan, by Reps. Crisanta Duran & Jon Becker and Sens. Jerry Sonnenberg & Pat Steadman. The bill authorizes the state treasurer to enter into lease-purchase agreements with CSU to construct facilities at the National Western Complex and CSU’s main campus.
  • HB 15-1285 – Concerning Use of Body-Worn Cameras by Law Enforcement Officers and, in Connection Therewith, Establishing a Grant Program and a Study Group to Recommend Policies on the Use of Body-Worn Cameras and Making an Appropriation, by Reps. Daniel Kagan & Angela Williams and Sens. John Cooke & Jessie Ulibarri. The bill creates the body-worn camera fund to purchase body-worn cameras and train officers in their use, as well as study best practices.
  • HB 15-1287 – Concerning Measures to Improve Peace Officer Training, by Rep. Angela Williams and Sen. John Cooke. The bill expands the scope of the Peace Officers Standards and Training Board in the Department of Law.
  • HB 15-1290 – Concerning Prohibiting a Peace Officer from Interfering with a Person Lawfully Recording a Peace Officer-Involved Incident, by Reps. Joseph Salazar & Daneya Esgar and Sens. Lucia Guzman & David Balmer. The bill specifies that people have the lawful right to record officer-involved incidents.
  • HB 15-1303 – Concerning Eliminating the Application of Certain Sentencing Provisions to Certain Persons who are Convicted of Assault in the Second Degree, by Rep. Jovan Melton and Sen. Kevin Lundberg. The bill removes mandatory crime of violence sentencing for assault against first responders.
  • SB 15-217 – Concerning Data Collection Related to Peace Officer-Involved Shootings of a Person, and, in Connection Therewith, Making an Appropriation, by Sens. Ellen Roberts & John Cooke and Rep. Angela Williams. The bill creates a process for public reporting of specified data concerning officer-involved shootings.
  • SB 15-218 – Concerning Requiring a Law Enforcement Agency to Disclose Whether a Peace Officer has Made a Knowing Misrepresentation in Certain Settings, by Sens. Ellen Roberts & John Cooke and Rep. Angela Williams. The bill requires a law enforcement agency to report any knowing instance of misrepresentation by a peace officer to the district attorney.
  • SB 15-219 – Concerning Measures to Provide Additional Transparency to Peace Officer-Involved Shootings, by Sens. John Cooke & Ellen Roberts and Rep. Joseph Salazar. The bill requires local law enforcement agencies to make public its protocols regarding contacting other agencies following officer-involved shootings.
  • HB 15-1262 – Concerning Separate Legal Entities Established by a Contract Between Two or More Political Subdivisions of the State, and, in Connection Therewith, Clarifying the Legal Status and Scope of Powers of Such an Entity, by Rep. Paul Rosenthal and Sen. David Balmer. The bill specifies the legal status and powers of an entity formed by two or more governments to provide public improvements.
  • HB 15-1343 – Concerning a Streamlined Process to Simplify the Licensure of Persons who Manage the Affairs of Common Interest Communities Under the “Colorado Common Interest Ownership Act”, and, in Connection Therewith, Making an Appropriation, by Reps. Angela Williams & Dan Thurlow and Sens. Nancy Todd & David Balmer. The bill makes several changes to the community association manager licensure program.

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

David Goldberg Appointed to Denver District Court

On Wednesday, May 20, 2015, Governor Hickenlooper announced his appointment of David Goldberg to the district court bench in the Second Judicial District, effective June 1, 2015. Goldberg will fill a vacancy created by the retirement of Herbert L. Stern, III.

Currently, Goldberg is a shareholder at Greenberg Traurig LLP, where he is a trial attorney with experience in complex commercial litigation and arbitration. He has also been an instructor with the National Institute of Trial Advocacy since 1993, and has presented for CBA-CLE. He represents companies, financial institutions, owners, developers and ski resorts in business and commercial real estate disputes. He received his law degree from Chicago-Kent College of Law and his undergraduate degree from the University of Northern Colorado.

Tenth Circuit: Citizenship of LLC for Diversity Jurisdiction Based on Citizenship of Each LLC Member

The Tenth Circuit Court of Appeals issued its opinion in Siloam Springs Hotel, L.L.C. v. Century Surety Co. on Tuesday, March 31, 2015.

Siloam Springs Hotel, L.L.C. operates a Hampton Inn in Siloam Springs, Arkansas. It purchased a commercial general liability insurance policy from Century Surety Co. During the applicable coverage period, the heating element of an indoor swimming pool suddenly malfunctioned, causing a sudden carbon monoxide leak and injuring several guests. Siloam sought coverage from Century, but Century denied coverage, relying on an exclusion in the insurance policy for injuries arising from noxious characteristics of indoor air. In response, Siloam filed suit in Oklahoma state court, seeking a declaration of coverage. Century removed the case to the U.S. District Court for the Western District of Oklahoma, asserting complete diversity jurisdiction and an amount in controversy exceeding $75,000. The parties filed cross-motions for summary judgment in district court, and the district court granted summary judgment to Century.

Siloam timely appealed, challenging the district court’s ruling that the indoor air exclusion barred coverage. After the parties filed their merits briefs, the Tenth Circuit recognized a jurisdictional defect in Century’s notice of removal, which labeled Siloam as a “corporation” and asserted it was organized under Oklahoma law and had its primary place of business in Arkansas. The Tenth Circuit ordered Century to show cause regarding the discrepancy, noting that although the Tenth Circuit had not addressed the issue, every other circuit to consider citizenship of an LLC for diversity jurisdiction purposes has held citizenship of the LLC is defined by citizenship of its members.

Century responded by arguing the LLC’s citizenship should be determined by treating it as a corporation, or, alternatively, the court should find Siloam’s citizenship to be of Oklahoma, Florida, New York, North Carolina, and Texas. The Tenth Circuit disagreed. First, the Tenth Circuit found that Oklahoma law defines an LLC as an unincorporated association or proprietorship, not a corporation. Following Supreme Court precedent, the Tenth Circuit determined that citizenship of an unincorporated association or proprietorship is decided based on citizenship of all its members. Next, the Tenth Circuit rejected Century’s offer that the LLC’s citizenship be Oklahoma, Florida, New York, North Carolina, and Texas, since Century based its determination on an unsworn letter from Siloam’s counsel dated after the notice of removal. The Tenth Circuit found two flaws with Century’s argument. First, residence is not equivalent to domicile, and domicile is used to determine citizenship, so the information in the unsworn letter regarding residence of the LLC’s members did not adequately address domicile. Second, the letter was dated after the notice of removal, and relevance regarding removal is to be determined at the time of removal, not after.

Without addressing the merits of the appeal, the Tenth Circuit remanded to the district court to consider whether diversity jurisdiction is proper and whether the insurance coverage questions would be better answered by certification to the appropriate state court.

Tenth Circuit: Unpublished Opinions, 5/20/2015

On Wednesday, May 20, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Pascal

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