October 21, 2018

Archives for 2018

Tenth Circuit: Under New Mexico State Law, Defendants Were Responsible for Timeliness of Arraignments

The Tenth Circuit Court of Appeals issued its opinion in Moya v. Garcia on Tuesday, April 24, 2018.

On August 27, 2014, a bench warrant was issued for Mr. Moya after he failed to appear for his scheduled arraignment. He was subsequently arrested on the outstanding bench warrant and booked into the Santa Fe County Adult Correctional Facility (SFCACF) on September 15, 2014. Mr. Moya was not brought before the district court for an arraignment until November 17, 2014—63 days after he was detained.

On July 21, 2015, a bench warrant was issued for Mr. Petry after he failed to appear for his scheduled arraignment. He was arrested the following day on unrelated charges and booked into the SFCACF. On July 27, 2015, shortly before he was to be released on the unrelated charges, Mr. Petry was served with the July 21 bench warrant and further detained by SFCACF. Mr. Petry was not brought before the district court for an arraignment until August 21, 2015—30 days after he was first detained.

These arraignments were in violation of New Mexico’s Rules of Criminal Procedure, which entitles defendants to arraignment within 15 days following arrest. Under the belief that Santa Fe County and Santa Fe County officials had a systematic policy and practice of failing to take action that would ensure detainees receive timely bail hearings as required by law, Mr. Moya and Mr. Petry filed a class action complaint under 42 U.S.C. § 1983, alleging their unlawful detainment was a deprivation of due process.

The district court granted the defendants’ motion to dismiss for failure to state a claim, finding that the complaint did not plausibly allege facts showing the sheriff or wardens had been personally involved in the untimely arraignments, either through their own participation or supervisory control. The district court also denied plaintiffs’ request to amend, reasoning that as the individual defendants’ were entitled to qualified immunity, any amendment would be futile.

On appeal, the plaintiffs argued that the sheriff and wardens were responsible for the delays in the arraignments under the theory of supervisory liability. The Tenth Circuit disagreed, finding that the sheriff and wardens were not the cause of the arraignment delays. After their arrests, jail officials notified the court that Mr. Moya and Mr. Petry were in custody. Once the court had been notified, it became the exclusive responsibility of the court to comply with the fifteen-day arraignment requirement—only the state trial court has the power to schedule arraignments. In further support of its conclusion that jail officials had not caused the arraignment delays, the Tenth Circuit brought attention to the fact that the plaintiffs had not alleged a failure by the defendants to tell the court of the arrests in a sufficient time to conduct the arraignment within the requisite fifteen days. There simply was no alleged conduct of the defendants that had prevented the court from scheduling the arraignments.

The Tenth Circuit next examined whether the defendants had any duty to ensure arraignments are timely scheduled. In the Tenth Circuit, the determination of the scope of defendant’s responsibility to ensure prompt hearings correctly focuses on state law. New Mexico law imposes no duty on the sheriff or warden to bring an arrestee to court in the absence of a scheduled arraignment. Further, the plaintiffs presented no authority that would provide guidance on what the sheriffs and wardens could have done to ensure timely court proceedings and avoid the due process violations, short of reminding the court of the court’s own failure to schedule an arraignment. But the Tenth Circuit reasoned that even with such a reminder, the arraignments could still only be scheduled by the court. Because the sheriff and wardens had no power to schedule the arraignments, the sheriff and wardens had no power to prevent or cure the alleged constitutional violations.

The dissent argued that the majority wrongly focused only on the arraignment and overlooked the detention. The dissent agreed that the sheriff and wardens were powerless to cause timely arraignments as the arraignments could only be schedule by the court, but theorized that the jail officials could have simply released Mr. Moya and Mr. Petry. The majority countered, stating that the plaintiffs had expressly disavowed this theory and had therefore waived any reliance on such theory as a basis for reversal. The majority noted than even if the issue was raised, under New Mexico law jailers commit a misdemeanor and must be removed from office if they deliberately release a prisoner absent a court order. Even in this scenario, the Tenth Circuit opined that the dismissal of the § 1983 action should be affirmed because the state law required detention absent a court order and the plaintiffs had not challenged the constitutionality of the law.

In addressing the plaintiffs’ claims against the county for failing to adopt a policy that would ensure timely arraignments, the Tenth Circuit found that as the sheriff and wardens did not cause the arraignment delays, the county could not incur liability under §1983 on the basis of the alleged inaction of the sheriff and wardens.

The issue of whether Mr. Moya and Mr. Petry had adequately alleged a deprivation of due process was not reached.

The Tenth Circuit also found the district court did not abuse its discretion in denying leave to amend, as the plaintiffs had failed to explain how they could have cured the deficiencies in the complaint identified by the district court.

The Tenth Circuit Court of Appeals affirmed the district court’s dismissal of Plaintiffs’ claims for failure to state a valid claim.

Colorado Court of Appeals: Announcement Sheet, 10/18/2018

On Thursday, October 18, 2018, the Colorado Court of Appeals issued three published opinions and 27 unpublished opinions.

Rocky Mountain Gun Owners v. Hickenlooper

Garrett v. Credit Bureau of Carbon County

Hernandez v. City & County of Denver

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, 10/18/2018

On Thursday, October 18, 2018, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

Nanda v. Phillips 66 Co.

Palmer v. Kaiser Foundation Hospitals Technology Risk Office

United States v. Banks

United States v. Lopez

Hall v. State Farm Insurance

Webb v. Commissioner, Social Security Administration

United States v. Thompson

Mills v. Allbaugh

United States v. Thomas

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

Archeconomics

I made up the term “archeconomics.” I’m using “arch” in the sense of “first principles” — e.g., as in “archetype.” An “arch” is the larger version of the smaller expressions of itself — e.g., not just a villain but an arch-villain, not just an angel but an archangel. Life goes big when an arch-something is at work: experience expands beyond circumstance, meaning magnifies, significance is exaggerated.

Archeconomics is therefore the larger story behind economics.

I ended last week’s post by referring to the larger story behind the rentier economy. As usually happens when I’m on a research trail, several commentaries have appeared in my various feeds lately that look beyond the usual opinionated mash of current events and instead address over-arching ideas and issues. All of them deal in one way or another with the current status and possible future of the liberal worldview — an arch-topic if there ever was one.

The term “liberal” in this context doesn’t refer to political liberal vs. conservative, but rather to historical liberalism, which among other things gave us post-WWII neo-liberal economics. Mega-bestselling author Yuval Noah Harari describes this kind of liberalism in his latest book 21 Lessons for the 21st Century:

In Western political discourse the term “liberal” is sometimes used today in a much narrower sense, to denote those who support specific causes such as gay marriage, gun control, and abortion rights. Yet most so-called conservatives also embrace the broad liberal worldview.

The liberal story cherishes human liberty as its number one value. It argues that all authority ultimately stems from the free will of individual humans, as expressed in their feelings, desires, and choices. In politics, liberalism believes that the voter knows best. It therefore upholds democratic elections. In economics, liberalism maintains that the customer is always right. It therefore hails free-market principles. In personal matters, liberalism encourages people to listen to themselves, be true to themselves, and allow their hearts — as long as they do not infringe on the liberties of others. This personal freedom is enshrined in human rights.

If you read Harari’s books Sapiens and Homo Deus. you have a sense of what you’ll find in 21 Lessons, but I found it worth reading on its own terms. Two recent special magazine editions also take on the fate of liberalism: “Is Democracy Dying? from The Atlantic andA Manifesto for Renewing Liberalism” from The Economist. The titles speak for themselves, and both are offered by publications with nearly two centuries of liberal editorial perspectives.

Another historical liberal offering from a conservative political point of view is “How Trumpism Will Outlast Trump,” from Time Magazine. Here’s the article’s précis:

These intellectuals are committed to a new economic nationalism . . . They’re looking past Trump . . . to assert a fundamental truth: whatever you think of him, Donald Trump has shown a major failing in the way America’s political parties have been serving their constituents. The future of Trump’s revolution may depend on whether this young group can help fix the economy.

Finally, here’s a trio of offerings that invoke environmental economics — the impact of the global ecology on global economics being another archeconomics topic. The first is a scientific study published last week that predicted significant environmental degradation within a surprisingly short time. Second is an article about the study that wants to know “Why We Keep Ignoring Even the Most Dire Climate Change Warnings.” Third is last week’s announcement that the winner of this year’s Nobel Prize in Economics is an environmental economist.

Some or all of those titles should satisfy if you’re in the mood for some arch-reading.

Next time, we’ll return to plain old economics, with a look at how the low income social strata is faring in all the dust-up over rentiers and economic inequality, robotcs and machine learning, and the sagging paycheck going to human labor.

 

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.”

Tenth Circuit: Unpublished Opinions, 10/17/2018

On Wednesday, October 17, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

CNSP, Inc. v. City of Santa Fe

United States v. Sanchez-Rivas

In re Garcia: Davis v. Tyson Prepared Foods, Inc.

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

Colorado Supreme Court: Totality of Circumstances, Including Drug Dog’s Alert, Provided Probable Cause for Car Search

The Colorado Supreme Court issued its opinion in People v. Bailey on Monday, October 15, 2018.

Searches and Seizures—Probable Cause—Search Without Warrant—Odor Detection—Use of Dogs.

In this interlocutory appeal, the supreme court considered whether the trial court erred in ruling that state troopers lacked probable cause to search defendant’s car when they placed Mason, a narcotics-detecting dog, inside the car to sniff around. The court held that the totality of the circumstances, including Mason’s alert to the odor of narcotics while sniffing the exterior of defendant’s car, provided the troopers with probable cause to search the car. The fact that Mason’s alert was not a final indication did not render it irrelevant to the troopers’ probable cause determination. Therefore, the court reversed the trial court’s order suppressing evidence collected by the troopers during a subsequent hand search of the car.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unique Facts of Case Permit Use of Self-Defense Instruction for Robbery of Taxi Services

The Colorado Supreme Court issued its opinion in People v. DeGreat on Monday, October 15, 2018.

Self-Defense—Aggravated Robbery—Jury Instructions—Affirmative Defenses.

This case required the supreme court to decide whether a division of the court of appeals erred in concluding that the statutory right to self-defense can apply to justify a defendant’s robbery of taxi cab services. On the unique facts presented, the court concluded that the division correctly determined that defendant was entitled to a self-defense instruction as to the aggravated robbery charge, although the court’s reasoning differed from that on which the division relied. The court concluded that defendant presented some credible evidence to allow a reasonable jury to conclude that the robbery of services that he allegedly committed was committed in self-defense. Accordingly, the court affirmed the division’s judgment, albeit based on different reasoning.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/16/2018

On Tuesday, October 16, 2018, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Rahimi v. Sweat

United States v. Martinez

United States v. Foy

Lamar v. O’Dell

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

Colorado Supreme Court: Competency Records of Other Defendant in Related Case were Protected by Privilege

The Colorado Supreme Court issued its opinion in Zapata v. People on Monday, October 15, 2018.

Physician-Patient Privilege—Psychologist-Client Privilege—Competency Evaluations—Res Gestae.

In this case, the trial court declined to give defendant access to, or to review in camera, competency reports regarding another defendant in a factually related but separate case. Over objection, the trial court also admitted uncharged misconduct evidence as res gestae.

The supreme court held that competency reports are protected by the physician-patient or psychologist-client privilege and that the examinee did not waive the privilege as to defendant when he put his competency in dispute in his own case. The court also held that defendant’s confrontation right was not implicated and that defendant did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court pursuant to due process or Crim. P. 16.

The court further held that any error in admitting the uncharged misconduct evidence as res gestae was harmless given the strong evidence of defendant’s guilt.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Tort Cannot Be Transaction Giving Rise to Obligation to Pay Money, Therefore Not Debt Per Fair Debt Collection Practices Act

The Colorado Supreme Court issued its opinion in Ybarra v. Greenberg & Sada, P.C. on Monday, October 15, 2018.

Finance, Banking, and Credit—Insurance—Statutory Interpretation—Torts.

Ybarra petitioned for review of the court of appeals’ judgment affirming the dismissal of her Colorado Fair Debt Collection Practices Act action against Greenberg & Sada, P.C. The district court dismissed for failure to state a claim, finding that damages arising from a subrogated tort claim do not qualify as a debt within the contemplation of the Act. The court of appeals agreed, reasoning that the undefined term “transaction” in the Act’s definition of “debt,” required some kind of business dealing, as distinguished from the commission of a tort; and to the extent an insurance contract providing for the subrogation of the rights of an insured constitutes a transaction in and of itself, that transaction is not one obligating the debtor to pay money, as required by the Act.

The supreme court held that because a tort does not obligate the tortfeasor to pay damages, a tort cannot be a transaction giving rise to an obligation to pay money, and is therefore not a debt within contemplation of the Act; and because an insurance contract providing for the subrogation of the rights of a damaged insured is not a transaction giving rise to an obligation of the tortfeasor to pay money, it also cannot constitute a transaction creating a debt within contemplation of the Act.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/15/2018

On Monday, October 15, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Powell

Thompson v. Bryant

United States v. Wells

United States v. Mitchell

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

Colorado Supreme Court: Announcement Sheet, 10/15/2018

On Monday, October 15, 2018, the Colorado Supreme Court issued four published opinions.

Ybarra v. Greenberg & Sada, P.C.

Zapata v. People

People v. DeGreat

People v. Bailey

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.