July 20, 2019

Archives for September 2017

Rule 8.4 of Colorado Rules of Professional Conduct Amended in Rule Change 2017(09)

On Thursday, September 28, 2017, the Colorado Supreme Court released Rule Change 2017(09), amending Rule 8.4 of the Colorado Rules of Professional Conduct. Rule 8.4 addresses attorney misconduct. The change to the rule only involves subsection (c), which is amended by the addition of a clause to clarify that attorneys may advise, direct, or supervise others in lawful investigatory activities:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities;

The rule change is effective immediately. A redline and clean copy of the rule change is available here. All of the Colorado Supreme Court’s adopted and proposed rule changes are available here.

Tenth Circuit: Unpublished Opinions, 9/28/2017

On Thursday, September 28, 2017, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Appleby v. Cline

Case summaries are not provided for unpublished opinions.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

Meet the New Boss

Same as the old boss.

– The Who[1]

Commentary about economic inequality often compares the situation today to America’s Gilded Age.[2] Back then they had the Robber Barons. Now we have the Robber Nerds. Same dif? It depends who you ask.

A quick check of a list of the Robber Barons on Wikipedia reveals the names of several household brand names that still endure, plus numerous key universities and charities. And this article from a European source — “The Truth About the Robber Barons,” from the Mises Institute (“30 Years of Austrian Economics, Freedom, & Peace”) — says don’t be too hasty to condemn:

The late nineteenth and early twentieth centuries are often referred to as the time of the ‘robber barons.’ It is a staple of history books to attach this derogatory phrase to such figures as John D. Rockefeller, Cornelius Vanderbilt, and the great nineteenth-century railroad operators — Grenville Dodge, Leland Stanford, Henry Villard, James J. Hill, and others. To most historians writing on this period, these entrepreneurs committed thinly veiled acts of larceny to enrich themselves at the expense of their customers. Once again we see the image of the greedy, exploitative capitalist, but in many cases this is a distortion of the truth.

For more, consider the following articles, whose titles telegraph whose side they’re on. but they’re all worth reading:

Seven Myths about the Great Philanthropists: The Turn of the 20th Century was a Golden Age of American Philanthropy. It Deserves to be Better Understood,” The Philanthropy Roundtable (2011).

The Robber Barons Weren’t Robbers. Here’s Why,” The Learn Liberty project of George Mason University (2017).

Robber Barons,Economists View (2007, reprinting a 1998 article).

The Dark Side of the Gilded Age,” The Atlantic (2007)

The Myth of America’s Golden Age,” Politico Magazine (2014)

On the lighter side, see P.J. O’Rourke’s “Up To a Point: Robber Barons Make Way For Robber Nerds:” “Rockefeller, Carnegie, J.P. Morgan: This country used to produce impressive if immoral captains of industry. Now we’re stuck with unrefined geeks like Mark Zuckerberg.” The Daily Beast (2014).

One thing seems to be consistent in all these commentaries: both then and now, soaring wealth for the haves and a commensurate decline for the have-nots occurred in a capitalistic, market-based economy. A second key point gets less consensus: whether the Barons benefited then and the Nerds are benefiting now from government policy and financial subsidies (including tax breaks in our day) — i.e., whether the economy was then and is now truly a free market.

Satisfy yourself, but at this point, after examining far more sources than I can cite in a blog post of this length, and having interviewed a couple free market champion friends of mine, I can comfortably say, as they did, “There never has been a free market.” Instead, what we had then and what we have now was and is a skewed version of capitalism — a perfect political and economic storm that made economic inequality possible back in the Gilded Age and makes it possible again today. This is the missing piece that Econ 101 and its simplistic supply/demand curves doesn’t provide.

The result in both eras has been a new class system that morphs the Horatio Alger ideal into a Great Gatsby reality. When the new class system hits the job marketplace, the result is a vast worldwide demographic of the Angry Left Behind — unhappy, disillusioned, dissatisfied, depressed, and even suicidal workers suffering from meaning malaise. What bothers them is often equated to the same anger that has fueled worldwide political shifts such as Brexit, Trumpism, the move to the right in Germany and France, and a whole lot more. (See for example No Job Left Behind and Back to Work, and countless more initiatives and opinions like them.)

When the subject of economic inequality invokes those kinds of inflammatory developments, it’s no wonder it’s so hard to talk about. Which is precisely what we’ll continue to do, right here.  Stay tuned.

[1] Here’s the original music video of We Won’t Get Fooled Again. Watching it draws you all the way back into the turbulent, polarizing 60’s — if you remember them, that is — and the tone feels eerily similar to what we’re living with today. By the way, who said, “If you remember the 60’s, you really weren’t there”? Find out here.

[2] And who first called it the “Gilded Age”? Find out here.


Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Colorado Court of Appeals: Announcement Sheet, 9/28/2017

On Thursday, September 28, 2017, the Colorado Court of Appeals issued no published opinion and 18 unpublished opinions.

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

Colorado Court of Appeals: District Court Erred in Calculating Defendant’s Presentence Confinement Credit

The Colorado Court of Appeals issued its opinion in People v. Jim on Thursday, September 21, 2017.

Sentencing—Presentence Confinement Credit—Residential Community Corrections Placement.

Defendant was sentenced to 18 months in community corrections. He escaped two months after reporting to community corrections. Following his arrest, the district court resentenced him to 18 months in the custody of the Department of Corrections (DOC), and he was given 67 days of presentence confinement credit (PSCC) for the time he was confined in the county jail before his initial sentencing and 23 days of PSCC for the time he spent in jail between his arrest and resentencing. The court denied defendant’s request for PSCC related to the time he spent in community corrections because he had escaped.

On appeal, defendant contended and the People conceded that the court erred by not awarding him PSCC for the time he spent in the residential community corrections program. Time spent by a defendant in jail, in a DOC facility, or as a resident in a community corrections facility constitutes confinement under C.R.S. § 18-1.3-405, because those facilities limit an individual’s liberty. Thus, when a defendant is resentenced to DOC custody after revocation of a direct sentence to community corrections, he is entitled to credit for time served in a residential community corrections placement. Here, defendant is entitled to 62 days of PSCC for the 62 days he spent in a residential community correction placement. Further, his escape from community corrections did not negate his right to PSCC because C.R.S. §18-1.3-301(1)(k) does not apply to PSCC awards.

The order was reversed and the was case remanded for the district court to correct the mittimus to reflect that defendant is entitled to a total of 152 days of PSCC.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Not Required to Impose Consecutive Sentences for Attempted Murder Counts

The Colorado Court of Appeals issued its opinion in People v. Espinoza on Thursday, September 21, 2017.

Arson—Attempted Murder—Custody—Motion to Suppress—Consecutive Sentences—Identical Evidence—Crime of Violence—Concurrent Sentences—Discretion.

Espinoza set fire to an apartment complex. As part of the investigation, police transported Espinoza to the police station, where he waited for several hours before being interviewed. Police ended the interview when Espinoza invoked his right to counsel. Espinoza filed a motion to suppress his statements from the videotaped interview with police, alleging that he was in custody and police failed to give him Miranda warnings. The trial court denied the motion. A jury found Espinoza guilty of 10 counts of attempted murder, 23 counts of first degree arson, 10 crime of violence counts, and multiple misdemeanors.

On appeal, Espinoza contended that the trial court failed to consider several factors in finding that he was not in custody at the police station, including the several-hour wait in the interview room, the presence of two armed detectives during the interview, and the confrontational question near the end of the interview. The record showed that Espinoza agreed to speak with the detectives, consented to a pat-down search, and rode unrestrained to the police station. The detectives told Espinoza that he was not under arrest and was free to leave, Espinoza was not physically restrained, and the tone of the interview was conversational. The trial court’s detailed factual findings, supported by the record, show that Espinoza was not in custody when interviewed by the detectives.

Espinoza next contended that the trial court misapprehended the applicable law when it ruled that it was required to impose consecutive sentences for his attempted first degree murder convictions. Despite naming different victims, Espinoza’s 10 attempted murder convictions were supported by identical evidence because the same evidence (the single act of fire-setting) formed the basis of each conviction. The court of appeals held that separately named victims do not create separate crimes of violence under C.R.S. § 18-1.3-406(1)(a) when identical evidence supports each conviction, and in such circumstances, a court has discretion to impose concurrent sentences under C.R.S. § 18-1-408(3). Here, the trial court imposed consecutive sentences under the mistaken belief that it had no discretion to impose concurrent sentences.

The judgments of conviction were affirmed. The sentence was vacated, and the case was remanded for resentencing.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/26/2017

On Tuesday, September 26, 2017, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Chapman v. Lampert

Bird v. Wyoming Department of Corrections

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

Celebrate the 35th Anniversary of the Rocky Mountain Children’s Law Center on October 20

On Friday, October 20, 2017, the Rocky Mountain Children’s Law Center will host a celebratory gala in honor of its 35th anniversary. The Legacy Gala will feature a presentation by former Denver Broncos running back Reggie Rivers. There will also be an awards ceremony, a live auction, and a silent auction, in addition to dinner and cocktails. Sponsorship opportunities are available for the Legacy Gala, and the Rocky Mountain Children’s Law Center is accepting donations for the silent auction as well. To register for the event or to learn more about sponsorship, click here.

Tenth Circuit: Unpublished Opinions, 9/25/2017

On Monday, September 25, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Miller v. Ford

United States v. Tinajero-Porras

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

Tenth Circuit: EPA Exceeded Statutory Authority in Denying Small Refinery Exemption

The Tenth Circuit Court of Appeals published its opinion in Sinclair Wyoming Refining Co. v. United States Environmental Protection Agnecy on Tuesday, August 15, 2017.

In 2005, in an amendment to the Clean Air Act (CAA), Congress directed the Environmental Protection Agency (EPA) to operate a Renewable Fuel Standards Program (the RFS Program) to increase oil refineries’ use of renewable fuels. However, if smaller refineries would suffer a disproportionate economic hardship in compliance with the RFS Program, the statute allows the EPA to grant exemptions on a case-by-case basis.

The program induces refineries to produce renewable fuel products (e.g., ethanol), and if they cannot, to purchase biofuel-generated credits from refineries that can. However, Congress was aware that the RFS Program might disproportionately impact small refineries because of the inherent scale advantages of larger refineries and, therefore, Congress created three classes of exemptions to protect these smaller refineries.

First, the statute exempted all small refineries from the RFS Program until 2011.

Second, Congress directed a study to be done to determine whether compliance with the RFS Program would impose disproportionate economic hardship on small refineries after the program’s implementation. After this study was conducted, it was found that Sinclair’s two refineries, among others, would suffer disproportionate economic hardship. The EPA then extended the blanket exemption for two more years.

Third, Congress provided a process for small refineries to petition the EPA at any time for an extension of the initial exemption for reason of disproportionate economic hardship. In evaluating the petitions, the EPA must consult with the Department of Energy (DOE) and consider other economic factors. It is this third exemption that is at issue in this case.

After successfully receiving a blanket exemption to the RFS Program until 2013, Sinclair then petitioned the EPA to extend their exemption. The EPA denied the petitions, finding that both refineries appeared to be profitable enough to pay the costs of the RFS Program. Sinclair filed a petition for review with the Tenth Circuit, which was granted.

The Tenth Circuit reviewed Sinclair’s petitions under the Administrative Procedure Act (APA). The APA finds agency action unlawful if it is in excess of statutory jurisdiction, authority, or limitations, in short of statutory right.

In order to decide if the EPA’s interpretation of the statute constitutes the force of law, the Circuit followed an analysis set forth in Skidmore v. Swift & Co., 323 U.S. 134 (1994). In the Skidmore case, the Court explained that the weight courts provide an administrative judgment will depend upon the thoroughness evident in the agency’s consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

The Circuit found that Congress did not authorize the EPA to promulgate regulations for the small refinery exemptions, the EPA conducted its interpretation via informal adjudication, the decisions were not made by the head of the EPA, but by a mid-level agency official, the decisions hold no precedential value for third parties, nor have any precedential value for even a refiner, and the EPA’s analysis is not a longstanding practice, but is only a few years old.

Thus, the Circuit concluded that Congress did not intend the EPA’s interpretation of “disproportionate economic hardship” to have the force of law. The Circuit then analyzed Congress’s grant of power to the EPA to administer the RFS Program, beginning with the statutory text.

Although Congress did not define the term “disproportionate economic hardship” in the statute, the provision makes clear that Congress provided the EPA with a comprehensive directive in analyzing and evaluating RFS Program exemptions. The Circuit then turned to whether the EPA’s decisions comport with Congress’s directive to grant exemptions when a small refinery demonstrates that complying with the RFS Program would cause it to suffer a disproportionate economic hardship.

Prior to considering a refinery’s petition for a hardship exemption, the EPA receives a recommendation on the petition from DOE. DOE created a scoring matrix for determining its recommendations for granting exemptions. The relevant part of DOE’s matrix assigns scores for three “viability” metrics: (1) whether the cost of compliance would reduce the profitability of the firm enough to impair future efficiency improvements; (2) whether individual special events have had a temporary negative impact on the ability of the refinery to comply; and (3) whether compliance costs are likely to lead to shutdown of the refinery.

Here, DOE applied its matrix and recommended the EPA provide a 50 percent waiver of the RFS Program’s requirements for both of Sinclair’s refineries. The EPA rejected DOE’s recommendations and denied both petitions.

The EPA concluded that “viability” meant only that program costs threatened the long-term survival of the refinery, not a short-term comparison to other industry actors. The Circuit held that the EPA’s long-term threat of closure requirement is inconsistent with the plain meaning of disproportionate economic hardship. The EPA takes the holistic evaluation required by Congress and morphs it into a single question: a threat of closure inquiry. This narrow viability evaluation is also not supported by contextual clues in the statutory scheme.

The Circuit concluded that by reading a necessary viability requirement into its statutory directive to evaluate a refinery’s petition for exemption from the RFS program based on disproportionate economic hardship, the EPA exceeded its statutory authority.

The Tenth Circuit Court of Appeals GRANTED Sinclair’s petition for review, VACATED the EPA’s decisions for Sinclair’s refineries, and REMANDED for further proceedings consistent with its opinion.

Tenth Circuit: Unpublished Opinions, 9/22/2017

On Friday, September 22, 2017, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Suarez v. Anthem, Inc.

Muhtorov v. Choate

Duran-Quintanilla v. Sessions

United States v. Devries

Allen v. People

United States v. Freeman

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

Amendments to District of Colorado Local Rules Open for Public Comment

On Tuesday, September 19, 2017, the U.S. District Court for the District of Colorado released a redline of the proposed amendments to its local rules. The amendments will be effective December 1, 2017. Comments must be submitted by October 19, 2017, to LocalRule_Comments@cod.uscourts.gov or via U.S. Mail to the Clerk of the Court, United States District Court, Attn: Legal Officer, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado 80294. Comments should specify to which rule they refer.

A summary of the changes to the local rules is available here:

D.C.COLO.LCivR 7.1(b) and (d) MOTIONS – (b) Exceptions to the Duty to Confer; (d) Motion, Response and Reply, Time for Serving and Filing; Length. (b) Entry of appearance and motions to withdraw are excepted from the list of motions requiring conferral of the parties or counsel; and (d) summary judgment motions are excluded from special treatment
D.C.COLO.LCivR 8.1 IN FORMA PAUPERIS PARTY AND PRISONER PLEADINGS Initial Review authorized for In Forma Pauperis filers, more closely following the statute; more specific instructions to pro se parties; former prisoners who bring “prison” actions now included.
D.C.COLO.LCivR 15.1(b) Amendment or Supplementation by Motion Removes exception for prisoner litigants; supplements to pleadings added.
D.C.COLO.LCivR 40.1(c) Direct Assignment to Magistrate Judges Adds another exception to direct assignment — cases where an order of referral has already been filed.
SECTION II – Criminal Rules
D.C.COLO.LCrR 47.1 PUBLIC ACCESS TO CASES, DOCUMENTS,          AND PROCEEDINGS (a) Adds judicial authorization to broaden levels of restriction or be more specific regarding access; (f) restricts information about parties posting any bond; broadens language about possible restricted CJA filings.
Section III – Local Patent Rules
(No Changes)
(No Changes)
SECTION V – Attorney Rules
D.C.COLO.LAttyR 5 ENTRY AND WITHDRAWAL OF APPEARANCE AND MAINTENANCE OF CONTACT INFORMATION (b) Provides more details as to counsel’s responsibilities for withdrawal from limited representation.
D.C.COLO.LAttyR 6 DISCIPLINARY PANEL AND COMMITTEE ON CONDUCT Memorializes the selection criteria for Committee on Conduct membership.
D.C.COLO.LAttyR 15 CIVIL PRO BONO REPRESENTATION (a) Updates Civil Pro Bono Program to allow appointment of both limited and general representation pro bono counsel;
(e) Expands unrepresented parties’ eligibility to include potential for appointment of counsel during the initial review process; and acknowledges that appointment of counsel for defendants/respondents is authorized; and
(f) Appointment procedure includes limited representation