December 17, 2018

Archives for 2018

Tenth Circuit: Unpublished Opinions, 12/14/2018

On Friday, December 14, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Milne

Comanche Nation of Oklahoma v. Zinke

United States v. Limon

Rodgers v. Beechcraft Corporation

Case summaries are not provided for unpublished opinions.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

Basic Income on the Res, Part 2

For nearly two decades, Duke Medical School professor Jane Costello has been studying the impact of casino money on the health and wellbeing of the North Carolina Cherokee tribe. For long, balanced articles about her work, see “What Happens When the Poor Receive a Stipend?The New York Times (2014) and “Free Money: The Surprising Effects Of A Basic Income Supplied By GovernmentWired Magazine (2017).

The NY Times article lists several  encouraging results. Here are a few:

The number of Cherokee living below the poverty line had declined by half.

The frequency of behavioral problems declined by 40 percent, nearly  reaching the risk of children who had never been poor.

Crimes committed by Cherokee youth declined.

On-time high school graduation rates improved.

The earlier the supplements arrived in a child’s life, the better that child’s mental health in early adulthood.

The money seemed to improve parenting quality.

Prof. Costello also noted neurological benefits, particularly brain development in the ”hippocampus and amygdala, brain regions important for memory and emotional well-being.”

Randall Akee, an economist at UCLA and a collaborator with Prof. Costello, speculated about the impact of these findings on the cost of welfare benefits:

A cash infusion in childhood seemed to lower the risk of problems in adulthood. That suggests that poverty makes people unwell, and that meaningful intervention is relatively simple.

Bearing that in mind, [Prof. Akee] argues that the supplements actually save money in the long run. He calculates that 5 to 10 years after age 19, the savings incurred by the Cherokee income supplements surpass the initial costs — the payments to parents while the children were minors. That’s a conservative estimate, he says, based on reduced criminality, a reduced need for psychiatric care and savings gained from not repeating grades.

The Wired article tracks the experiences of “Skooter” McCoy, who left the Cherokee Reservation to play small college football the year the casino money distributions began, and of his son Spencer McCoy, who was born that same year. Skooter returned to the Reservation to coach football at the local high school and is now general manager of the Cherokee Boys Club, a nonprofit that provides day care, foster care, and other tribal services.

The casino money made it possible for him to support his young family, but the money his children will receive is potentially life-altering on a different scale.

‘If you’ve lived in a small rural community and never saw anybody leave, never saw anyone with a white-collar job or leading any organization, you always kind of keep your mindset right here,’ he says, forming a little circle with his hands in front of his face. ‘Our kids today? The kids at the high school?’ He throws his arms out wide. ‘They believe the sky’s the limit. It’s really changed the entire mindset of the community these past 20 years.’

The Cherokees’ experience began with the same provisions for a one-time distribution at age 18 of the money set aside for minors that we saw last time in the Seneca tribe’s program, but the Cherokees later amended their law to call for payments in three stages — still not ideal, but a move toward sensibility. Skooter calls the coming-of-age payments “big money,” and has seen his share of abuse, but his son Spencer appears to be taking a different path:

When Spencer first got his ‘big money,’ he says, ‘I’d get online and I was looking for trucks and stuff, but I thought at the end of the day, it wasn’t really worth it.’ Aside from a used bass boat he bought to take out fishing, Spencer has stashed most of the money away in hopes of using it to start his own business one day.

After reviewing Prof. Costello’s work, the Wired article examines the use of UBI as a response to technological unemployment, concluding as follows:

The true impact of the money on the tribe may not really be known until Spencer’s generation, the first born after the casino opened, is grown up. For the techies backing basic income as a remedy to the slow-moving national crisis that is economic inequality, that may prove a tedious wait.

Still, if anything is to be learned from the Cherokee experiment, it’s this: To imagine that a basic income, or something like it, would suddenly satisfy the disillusioned, out-of-work Rust Belt worker is as wrong-headed as imagining it would do no good at all, or drive people to stop working.

There is a third possibility: that an infusion of cash into struggling households would lift up the youth in those households in all the subtle but still meaningful ways Costello has observed over the years, until finally, when they come of age, they are better prepared for the brave new world of work, whether the robots are coming or not.

We’ll look more at “the robots are coming” and Silicon Valley’s response to technological unemployment next time. Meanwhile, for related information, see this summary re: U.S. government benefits to Indian tribes, and see this article re: another current version of UBI — the Alaska oil money trust fund.

Kevin Rhodes studies and writes about economics in an effort to understand the world his kids are growing up in, which is also the world he’s growing old in. You might enjoy his latest LinkedIn Pulse article “The Fame Monster: Rockstars And Rockstar Entrepreneurs.”

Colorado Court of Appeals: Announcement Sheet, 12/13/2018

On Thursday, December 13, 2018, the Colorado Court of Appeals issued nine published opinions and 40 unpublished opinions.

People v. Godinez

People v. Rigsby

People in Interest of C.M.D.

Patterson v. James

Bank of New York Mellon v. Peterson

People v. Taylor

In re Marriage of Hogsett and Neale

People in Interest of A.R.

People in Interest of M.H.-K.

Summaries of these cases are forthcoming.

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, 12/12/2018

On Wednesday, December 12, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Tyree

United States v. Garcia

Turner v. Middle Rio Grande Conservancy District

State Farm Mutual Insurance Co. v. Kowalik

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

Colorado Supreme Court: Restitution Not Available for Losses for Which the Defendant Was Not Convicted

The Colorado Supreme Court issued its opinion in Cowan v. People on Monday, December 10, 2018.

Sentencing—Restitution—Compensable Losses.
The supreme court held that Colorado’s restitution statutes do not allow trial courts to order restitution for pecuniary losses caused by conduct that formed the basis of a charge of which the defendant has been acquitted. Even where the defendant has been convicted of a separate charge, this state’s restitution statutes do not permit a trial court to impose restitution for losses suffered as a result of the acquitted conduct. The prosecution’s contrary construction would both violate well-settled rules of statutory interpretation and run afoul of the Fourteenth Amendment’s guarantee of procedural due process. Because the court of appeals affirmed the order requiring defendant to pay restitution for losses caused by conduct supporting an acquitted charge, the supreme court reversed that court’s decision. The matter was remanded to the court of appeals for further proceedings consistent with this opinion.


Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Prejudgment Interest Applies in Garnishment Proceedings

The Colorado Supreme Court issued its opinion in Thompson v. Catlin Insurance Co. on Monday, December 10, 2018.

Appellate Mandate—Garnishment—Prejudgment Interest.
At issue in this garnishment proceeding was the amount of insurance proceeds owed to petitioners. The court of appeals grappled with the amount of this debt on four separate occasions. In Thompson v. United Securities Alliance Inc. (Thompson IV), 2016 COA 128 ¶ 27, __P.3d __, a division of the court of appeals upheld the district court’s determination of attorney fees and costs that the insurance company may deduct from the liability limit under its policy. It is this decision in Thompson IV about fees and costs that the supreme court reviewed here. First, it addressed whether the Thompson IV division erred when it upheld the district court’s decision to consider new evidence on remand from Thompson v. United Securities Alliance, Inc. (Thompson III), No. 13CA2037 (Colo. App. Oct. 16, 2014). Because the Thompson IV division reasonably construed the mandate issued by the Thompson III division, the supreme court perceived no error. Second, it addressed whether the Thompson IV division erred when it held that petitioners are not entitled to prejudgment interest in a garnishment proceeding. The court concluded that the division erred. Petitioners are entitled to prejudgment interest under C.R.S. § 5-12-102. Accordingly, as to the first issue, the court of appeals’ judgment was affirmed. As to the second, it was reversed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/11/2018

On Tuesday, December 11, 2018, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

United States v. Kelley

Turner Brothers, Inc. v. Conley

Jones v. Office of Administrative Hearings

Pemberton v. Patton

United States v. Rodriguez-Arroyo

Vigil v. Commissioner, SSA

United States v. Norwood

Lopez v. Sterling Correctional Facility

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

Tenth Circuit: Unpublished Opinions, 12/10/2018

On Monday, December 10, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Williams

Jackson v. Bryant

Crosby v. Fox

Marshall v. Harvanek

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

Colorado Supreme Court: Announcement Sheet, 12/10/2018

On Monday, December 10, 2018, the Colorado Supreme Court issued two published opinions.

Thompson v. Catlin Insurance Co.

Cowen v. People

Summaries of these cases are forthcoming.

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: Unnecessary Presence of Parents at Initial Consultation Voids Attorney-Client Privilege

The Colorado Supreme Court issued its opinion in In re Fox v. Alfini on Monday, December 3, 2018.

In this original proceeding pursuant to C.A.R. 21, the court reviews the district court’s order compelling production of a recording of the Petitioner’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that the Petitioner had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court’s ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Admission of “Overkill” Theory Without Specific Findings Was Error

The Colorado Supreme Court issued its opinion in Ruibal v. People on Monday, December 3, 2018. 

Ruibal petitioned for review of the court of appeals’ judgment affirming hisconviction for second degree murder. Over defense objection and without taking evidence or making any findings as to reliability, the trial court admitted expert testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a formal term describing multiple injuries focused on one area of the victim’s body, which includes blows about the head and face that are numerous and extensive, indicating that the assailant likely had either a real or perceived emotional attachment to the victim. Relying on case law from several other jurisdictions, a treatise dealing with related kinds of injuries, and the witness’s own experience with autopsies involving similar injuries, the court of appeals concluded that the expert opinion was sufficiently reliable and that the trial court had implicitly found as much by granting the prosecution’s proffer.
The supreme court holds that because the trial court made no specific finding that the theory of “overkill” espoused by the witness was reliable, nor was the reliability of that theory either supported by evidence in the record or already accepted in this jurisdiction, its admission amounted to an abuse of discretion. Because there was, however, overwhelming evidence of the defendant’s guilt quite apart from the expert testimony, the error was necessarily harmless. Accordingly, the judgment of the court of appeals is affirmed.

Summary provided courtesy of Colorado Lawyer.

10th Circuit: Unpublished Opinions, 12/7/2018

On Friday, December 7, 2018, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Layng v. Rael

Singh v. Sessions

Dailey v. Hecht

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