December 18, 2018

Archives for August 5, 2015

Hon. P. Douglas Tallman to Retire from Fifteenth Judicial District Court

On Monday, August 3, 2015, the Colorado State Judicial Branch announced that Hon. P. Douglas Tallman will retire from the Fifteenth Judicial District Court, effective October 2, 2015. Judge Tallman was appointed to the district court in 2003. Prior to his appointment, he served as Cheyenne County Court judge from 1987 to 2002. He is active in his local community, and he participates yearly in the annual Lamar Hospice Golf Tournament.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of the Fifteenth Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website and also from Justice Monica Marquez, ex officio chair of the Fifteenth Judicial District Nominating Commission. Applications must be received by 4 p.m. on August 24, 2015. Anyone wishing to nominate another must do so no later than 4 p.m. on August 17, 2015. For more information about the vacancy, click here.

Colorado Court of Appeals: Dependency and Neglect Action Not Moot When Collateral Consequences Probable

The Colorado Court of Appeals issued its opinion in People in Interest of C.G. on Thursday, July 30, 2015.

Dependency and Neglect—Mootness Following Child’s Death—CRCP 60(b) Motion.

In March 2006, the Jefferson County Division of Children, Youth, and Families (Division) filed a dependency and neglect petition and assumed temporary custody of a 5-year-old child and his younger half-sibling. The petition asserted that father (“whereabouts unknown”) had abandoned him. Publication notice was completed.

In May 2006, the court placed the child in the temporary custody of Phillips, the father of the child’s half-sibling. In November 2006, the court adjudicated the child dependent and neglected by default as to father and granted an allocation of parental responsibilities (APR) for the child to Phillips. The child died a year later. Phillips was convicted of first-degree murder and child abuse resulting in death.

Several years later, father, the child’s mother, and the personal representative of the child’s estate commenced a federal court action against the Division, the Denver County Department of Human Services (Department), and two caseworkers from the Department. The claims were 42 USC §1983 claims for violations of the child’s substantive due process rights.

In June 2014, father moved for CRCP 60(b) relief in the dependency and neglect proceeding. He sought to vacate the trial court’s orders because the Division had failed to exercise due diligence to ascertain his identity before serving him by publication. The Division responded that the matter was moot, and father answered that it would have a practical effect on the §1983 action. The court denied father’s motion as moot without holding a hearing.

The Court of Appeals concluded that the request for relief was not moot because of the collateral consequence of the dependency and neglect orders in father’s federal action. The Court noted that an issue is not moot when the judgment may result in significant collateral consequences to a party. This decision turns on showing the reasonable possibility of such consequences. Here, the orders in the dependency and neglect proceeding were being used to impose a collateral consequence on father—the denial of relief in his federal action. If the child was not in the state’s custody after transferring custody and awarding APR to Phillips, then father’s only surviving claims in the federal action (against the caseworkers) would be dismissed. If, however, his CRCP 60(b) relief was granted, there would be a reasonable possibility that he could pursue his remaining claims in federal court.

Even if father’s motion were moot, the district court should have considered its merits because its substantive issues fell within the exceptions to the mootness doctrine. The order was reversed and the matter was remanded for consideration of the merits of the CRCP 60(b) motion.

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

Colorado Court of Appeals: Disclosure of Proprietary Software Not Required When it Would Violate Terms of Licensing Agreement

The Colorado Court of Appeals issued its opinion in Todd v. Hause on Thursday, July 30, 2015.

Colorado Open Records Act—Trade Secret Exception—Personal Information—Redaction—Public Interest—Privacy Rights.

According to his complaint, Todd is a “consulting paralegal to Colorado attorneys” who “devotes a significant amount of his professional time to assisting criminal defense attorneys in DUI and DUID defense. . . .” Todd made several written Colorado Open Records Act (CORA) requests to the Colorado Department of Public Health and Environment (Department) for all data gathered from the Intoxilyzer 9000, the device Colorado law enforcement agencies use to test the breath alcohol level of suspected intoxicated drivers. In response to Todd’s request, the Department asserted that the COBRA (Computerized Online Breath Archive) software is proprietary and that, under its license agreement with the developer, CMI, Inc., it was prohibited from copying or transferring the software. The Department offered to convert the data to Comma-Separated Values (.csv) file format, a different file format than SQL and, after redacting all confidential or personally identifying data fields, to provide the data to Todd. Todd refused this offer and filed a complaint in district court to enforce his CORA request.

On appeal, Todd contended that the Department did not meet its initial burden to show that there was no disputed issue of material fact regarding whether the data in SQL format was protected from disclosure under CORA’s trade secret exception. The Department met this burden, however, by asserting that (1) its software licensing agreement with CMI restricts it from copying or transferring the COBRA software, (2) the Intoxilyzer 9000 test data in SQL format could not be separated from the COBRA software, and (3) disclosure of this information would violate the licensing agreement and disclose trade secrets owned by CMI.

Todd also contended that the district court erred in permitting the Department to redact certain personal information of the operators of the Intoxilyzer 9000. The district court correctly found that disclosure of the operator identification, login information, and personal identification numbers would substantially injure the public interest. However, the Department failed to meet its burden to establish that there was no genuine issue of material fact that the test-takers possessed a legitimate expectation that their personal information would not be disclosed. Accordingly, that part of the summary judgment order allowing redaction of the test takers’ personal information was reversed, and the case was remanded for further proceedings.

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

Tenth Circuit: Unpublished Opinions, 8/4/2015

On Tuesday, August 4, 2015, the Tenth Circuit Court of Appeals issued three published opinions and no unpublished opinions.

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