October 18, 2018

Archives for March 2018

Tenth Circuit: Unpublished Opinions, 3/29/2018

On Thursday, March 29, 2018, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

Gregory v. Creekstone Farms Premium Beef, LLC

United States v. Manning

United States v. Perry

Bird v. Pacheco

United States v. Iverson

Progressive Northern Insurance Co. v. Pippin

United States v. Tyndall

United States v. Cash

United States v. James

Case summaries are not provided for unpublished opinions.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

On the Third Hand, Continued

Will the machines take over the jobs?

In a recent TED talk, scholar, economist, author, and general wunderkind Daniel Susskindl[1] says the question is distracting us from a much bigger and more important issue: how will we feed, clothe, and shelter ourselves if we no longer work for a living?:

If we think of the economy as a pie, technological progress makes the pie bigger. Technological unemployment, if it does happen, in a strange way will be a symptom of that success — we will have solved one problem — how to make the pie bigger — but replaced it with another — how to make sure that everyone gets a slice. As other economists have noted, solving this problem won’t be easy.

Today, for most people, their job is their seat at the economic dinner table, and in a world with less work or even without work, it won’t be clear how they get their slice. This is the collective challenge that’s right in front of us — to figure out how this material prosperity generated by our economic system can be enjoyed by everyone in a world in which our traditional mechanism for slicing up the pie, the work that people do, withers away and perhaps disappears.

Guy Standing, another British economist, agrees with Susskind about this larger issue. The following excerpts are from his book The Corruption of Capitalism. He begins by quoting Nobel prizewinning economist Herbert Simon’s 1960 prediction:

Within the very near future — much less than twenty-five years — we shall have the technical capacity of substituting machines for any and all human functions in organisations.

And then he makes these comments:

You do not receive a Nobel Prize for Economics for being right all the time! Simon received his in 1978, when the number of people in jobs was at record levels. It is higher still today. Yet the internet-based technological revolution has reopened age-old visions of machine domination. Some are utopian, such as the post-capitalism of Paul Mason, imagining an era of free information and information sharing. Some are decidedly dystopian, where the robots — or rather their owners — are in control and mass joblessness is coupled with a “panopticon” state[2] subjecting the proles to intrusive surveillance, medicalized therapy and brain control. The pessimists paint a “world without work.” With every technological revolution there is a scare that machines will cause “technological unemployment”. This time the Jeremiahs seem a majority.

Whether or not they will do so in the future, the technologies have not yet produced mass unemployment . . . [but they] are contributing to inequality.

While technology is not necessarily destroyed jobs, it is helping to destroy the old income distribution system.

The threat is technology-induced inequality, not technological unemployment.”

Economic inequality and income distribution (sharing national wealth on a basis other than individual earned income) are two sides of the issue of economic fairness — always an inflammatory topic.

When I began my study of economics 15 months ago, I had never heard of economic inequality, and income distribution was something socialist countries did. Now I find both topics all over worldwide economic news and commentary and still mostly absent in U.S. public discourse (such as it is) outside of academic circles. On the whole, most policy-makers on both the left and right maintain their allegiance to the post-WWII Mont Pelerin neoliberal economic model, supported by a cultural and moral bias in favor of working for a living, and if the plutocrats take a bigger slice of pie while the welfare rug gets pulled on the working poor, well then so be it. If the new robotic and super-intelligent digital workers do in fact cause massive technological unemployment among the humans, we’ll all be reexamining these beliefs, big time.

I began this series months ago by asking whether money can buy happiness, citing the U.N.’s World Happiness Report. The 2018 Report was issued this week, and who should be on top but… Finland! And guess what — among other things, factors cited include low economic inequality and strong social support systems (i.e., a cultural value for non-job-based income distribution). National wealth was also a key factor, but it alone didn’t buy happiness: the USA, with far and away the strongest per capita GDP, had an overall ranking of 18th. For more, see this World Economic Forum article or this one from the South China Morning Post.

We’ll be looking further into all of this (and much more) in the weeks to come.


[1] If you’ve been following this column for awhile and the name “Susskind” sounds familiar, a couple years ago, I blogged about the future and culture of the law, often citing the work of Richard Susskind, whose opus is pretty much the mother lode of crisp thinking about the law and technology. His equally brilliant son Daniel joined him in a book that also addressed other professions, which that series also considered. (Those blogs were collected in Cyborg Lawyers.) Daniel received a doctorate in economics from Oxford University, was a Kennedy Scholar at Harvard, and is now a Fellow in Economics at Balliol College, Oxford. Previously, he worked as a policy adviser in the Prime Minister’s Strategy Unit and as a senior policy adviser in the Cabinet Office.

[2] The panopticon architectural structure was the brainchild of legal philosopher Jeremy Bentham. For an introduction to the origins of his idea and its application to the digital age, see this article in The Guardian.

 

Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Check out Kevin’s latest LinkedIn Pulse article: When We Move, We Can Achieve the Impossible.”

Colorado Court of Appeals: Subpoena Issued for Lawfully Authorized Purpose Despite Having Arisen from Different Agency

The Colorado Court of Appeals issued its opinion in Colorado Medical Board v. Boland on Thursday, March 22, 2018.

Physician—Subpoena—State Administrative Procedure Act—Medical Practice Act—Colorado Department of Public Health and Environment—Open Meetings Law—Disciplinary Procedures.

Dr. Boland, a licensed Colorado physician, received a subpoena duces tecum from the Colorado Medical Board (Board) to produce certain medical records. A letter accompanying the subpoena explained that the Board had received information regarding Dr. Boland’s conduct as a physician and a possible violation of the Medical Practice Act. The letter also noted that the Board had received a complaint from the Colorado Department of Public Health and Environment (CDPHE) related to Dr. Boland’s medical marijuana recommendations. In response, Dr. Boland sent a written objection to the Board, arguing that CDPHE’s referral policy was invalidly adopted, and on that basis he refused to produce the records. The Board filed an application for an order enforcing the subpoena, which was granted by the district court. The district court concluded that even if the referral policy was invalid, only CDPHE could be enjoined from enforcing it.

On appeal, Dr. Boland argued that the trial court erred in enforcing an unlawful subpoena. He alleged that because CDPHE based its referral on a policy that was unlawfully adopted, the subpoena caused by the referral had no lawful purpose. Even assuming the policy was adopted in violation of the Open Meetings Law, CDPHE’s conduct does not determine whether the Board acted lawfully in issuing the subpoena. The Board has a statutory duty to investigate whether a licensed physician engages in unprofessional conduct and is vested with authority to conduct investigations and issue administrative subpoenas. Thus, the subpoena in this case was issued for a lawful purpose.

The judgment enforcing the subpoena was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Board Had No Basis for Investigating Physician Based on Reasons Outside Subpoena

The Colorado Court of Appeals issued its opinion in Colorado Medical Board v. McLaughlin on Thursday, March 22, 2018.

Physician—Subpoena—State Administrative Procedure Act—Colorado Department of Public Health and Environment—Open Meetings Law—Disciplinary Procedures.

Dr. McLaughlin, a licensed Colorado physician, received a subpoena duces tecum from the Colorado Medical Board (Board) to produce certain medical records. The Board issued the subpoena after it had received a complaint from the Colorado Department of Public Health and Environment (CDPHE) related to Dr. McLaughlin’s medical marijuana recommendations. Dr. McLaughlin objected to the Board’s subpoena, arguing that CDPHE’s referral policy was invalidly adopted. On that basis, he refused to produce the subpoenaed records. The Board filed an application for an order enforcing the subpoena. The district court concluded that although the physician referral policy was invalid, the subsequent investigation and subpoena were for a lawfully valid purpose, and the court granted the Board’s application.

On appeal, Dr. McLaughlin contended that the subpoena was not issued for a lawful purpose because the policy prompting the Board’s investigation was adopted in violation of Colorado’s Open Meetings Law. Here, the subpoena was issued solely as a result of a physician referral policy promulgated in violation of the Open Meetings Law and the State Administrative Procedure Act. Because the Board had no basis for investigating the physician apart from the invalid physician referral policy, the subpoena had no lawful purpose and the district court erred in enforcing the subpoena.

The judgment was reversed. However, the dissent agreed with the majority in Colorado Medical Board v. Boland, 2018 COA 39, and would affirm the district court’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Oil and Gas Commission’s Warrantless Inspections of Locations Does Not Violate Constitution

The Colorado Court of Appeals issued its opinion in Maralex Resources, Inc. v. Colorado Oil and Gas Conservation Commission on Thursday, March 22, 2018.

Administrative Law—Constitutional Law—Fourth Amendment—Search and Seizure—Warrantless Search—Administrative Search.

O’Hare was the president of Maralex, a Colorado corporation licensed to conduct oil and gas operations in the state. Maralex operated over 200 oil wells in Colorado. Maralex operated wells located on the O’Hares’ ranch. The O’Hares owned both the surface and mineral rights, but leased the mineral rights to Maralex. The Colorado Oil and Gas Conservation Commission (COGCC) obtained an administrative search warrant authorizing entry and inspection of certain Maralex locations, and after conducting inspections, COGCC issued multiple notices of alleged violations to Maralex and O’Hare. After an administrative hearing, the COGCC issued an order finding violation (OFV), concluding that Maralex had violated several rules, and Maralex was assessed a penalty of $94,000. Maralex and the O’Hares sought judicial review of COGCC’s order. The district court denied their request for injunctive and declaratory relief and affirmed the OFV in full.

On appeal, Maralex and the O’Hares contended that COGCC Rule 204 permitting unannounced, warrantless searches of oil and gas locations violated the U.S. and Colorado Constitutions. There are exceptions to the requirement that searches be conducted pursuant to a warrant issued upon probable cause. One exception is in the context of administrative searches made pursuant to a regulatory scheme of a closely regulated industry. A warrantless inspection conducted pursuant to a regulatory scheme of a closely regulated industry is reasonable if (1) the scheme is informed by a substantial government interest, (2) it is necessary to further that government interest, and (3) the scheme provides a “constitutionally adequate substitute” for a warrant. The Court of Appeals concluded that the oil and gas industry is closely regulated; the state has a substantial interest in regulating oil and gas operations; warrantless searches are necessary to further the state’s substantial interest in the safe and efficient operation of oil and gas facilities; and COGCC’s inspection regime provides a constitutionally adequate substitute for a warrant. Therefore, warrantless inspections made pursuant to Rule 204 do not violate either the Colorado or U.S. Constitution.

The O’Hares also raised constitutional challenges to Rule 204 in their capacity as surface owners of land including oil and gas locations subject to COGCC oversight. They first contended that Rule 204 is unconstitutional as applied to surface owners because, unlike operators of oil and gas locations, they have an expectation of privacy in the property searched. In this case, the O’Hares granted Maralex a very broad set of rights under the surface agreement. By granting the corporation an unlimited easement on the surface estate, the O’Hares substantially lessened any objective expectation of privacy in the property over which they willingly transferred access and control rights to Maralex. The Court also rejected the O’Hares’ broader challenge to the facial constitutionality of Rule 204 as to all surface owners, concluding that where a surface owner grants a mineral lessee a broad surface easement, warrantless entry of the surface estate would not necessarily violate the surface owner’s rights.

Maralex also challenged the COGCC’s order concluding that it violated multiple rules in relation to certain wells. The COGCC’s finding that Maralex violated Rule 204 on March 20, 2014 was arbitrary and capricious because the inspection supervisor agreed to delay the inspection until the next day. Thus, there was not substantial evidence to support COGCC’s determination that Maralex failed to provide access to its wells at all reasonable times. As to the remaining dates at issue, the evidence supports COGCC’s determination that Maralex violated Rule 204 for the duration of that six-day period.

The Court also found record support for COGCC’s determination that Maralex violated Rules 603.f, 905(a), and 907(a)(1).

The district court’s order affirming that part of the OFV concluding Maralex violated Rule 204 on March 20, 2014 and the corresponding penalty were reversed. In all other respects, the order was affirmed. The case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/28/2018

On Wednesday, March 28, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Tinoco

Johnson v. School District No. 1

Calvin v. Chang

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

Colorado Court of Appeals: District Court Erred by Terminating Parental Rights Without Establishing Treatment Plan

The Colorado Court of Appeals issued its opinion in People in Interest of B.C. on Thursday, March 22, 2018.

Dependency and Neglect—Required Findings—Termination of Parental Rights—Appropriate Treatment Plan.

In this dependency and neglect proceeding, mother admitted that the child’s environment was injurious to his welfare and stipulated to an adjudication. She also stipulated to a preliminary treatment plan, but no dispositional hearing was held. Based on the stipulation, the trial court entered an order adjudicating the child dependent and neglected. The court further ordered the Pueblo County Department of Social Services to submit a formal treatment plan within 20 days that would be adopted and made an order of the court if no objections were filed. There was no finding that the plan was “appropriate.” Mother did not object to the submitted treatment plan.

The Department later moved to terminate mother’s parental rights. Mother objected and asserted she was in compliance with the treatment plan. Approximately a year after the petition was filed, following a contested hearing, the court entered judgment terminating mother’s parental rights. The court found that mother had not complied with the treatment plan.

On appeal, mother contended that the trial court erred by not conducting a dispositional hearing or adopting a formal treatment plan that was found to be appropriate. C.R.S. § 19-3-508(1) requires the court to “approve an appropriate treatment plan,” and C.R.S. § 19-3-604(1)(c)(I) requires a finding that “an appropriate treatment plan approved by the court has not been reasonably complied with” before parental rights are terminated. Here, there was no dispositional hearing, and the trial court did not approve an appropriate treatment plan nor make a finding that the proposed plan was appropriate.

The order was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Amendment of Information to Add Crime of Violence Designation would Require Proof of Additional Element and Carry Harsher Sentence

The Colorado Court of Appeals issued its opinion in People v. Palmer on Thursday, March 22, 2018.

Murder—Arson—Amendment of Information—Crime of Violence—Crim. P. 7(e)—Discovery Violation.

When Palmer found out that the man she had been dating was having sex with another woman, she set fire to a bag of his things outside the front door of his apartment. The fire spread from the bag, and soon the entire apartment complex was ablaze. Palmer was charged with five counts of attempted first degree murder and one count of first degree arson. After the trial began, the trial court granted the prosecution’s motion to amend the information to add a crime of violence designation. The amended information alleged that Palmer committed arson by means of a deadly weapon (a lighter and lighter fluid). Because of the amendment, Palmer faced a longer prison sentence if convicted. The jury acquitted Palmer of attempted murder but convicted her of first degree arson and the lesser nonincluded offense of fourth degree arson. The jury also found that first degree arson was a crime of violence because Palmer used a deadly weapon.

On appeal, Palmer contended that the trial court abused its discretion by allowing the prosecutor to amend the information. She argued that the amendment was one of substance and thus had to be made before trial. Crim. P. 7(e) permits amendments only as to form once trial has begun and provides that the trial court may reject an amendment during trial if it charges an additional or different offense or prejudices the defendant’s substantial rights. Here, the amendment required proof of an additional element, use of a deadly weapon, and carried a harsher minimum and maximum sentence, so the trial court abused its discretion in granting the motion to amend once trial was underway.

Palmer also argued that the trial court should have granted her motion for mistrial because the prosecution failed to timely disclose two fire investigators’ reports. During testimony, the prosecution discovered and promptly disclosed two previously undisclosed reports from the fire lieutenants. The trial court found that the discovery violation was inadvertent. Instead of granting a mistrial, the trial court prohibited the prosecution from calling a second fire lieutenant and permitted Palmer to re-examine the first fire lieutenant based on the newly discovered information. The trial court did not abuse its discretion in denying Palmer’s motion for mistrial and imposing other remedies for the discovery violation.

The sentence was reversed and the case was remanded for resentencing. The judgment was affirmed in all other respects.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Self-Defense Instruction Warranted if Evidence Shows Defendant Acted in Self-Defense

The Colorado Court of Appeals issued its opinion in People v. Wakefield on Thursday, March 22, 2018.

Second Degree Murder—Self-Defense—Jury Instruction—Voluntary Statements—Photographic Evidence.

Defendant and the victim were longtime friends, and the victim was visiting defendant from out of state. The victim and defendant argued and were involved in a series of increasingly violent physical fights. Defendant shot the victim, killing him. Right after the shooting defendant indicated to two people that he had acted in self-defense. Defendant testified at trial that when the victim stepped forward and reached for the shotgun defendant was holding, defendant pulled the gun up and away from the victim’s reach, and the gun “went off.” According to defendant, he thought that the victim was going to grab the gun and hurt him with it. Defendant maintained that he did not intend to shoot or hurt the victim. Defendant was tried for first degree murder, but was convicted of the lesser included offense of second degree murder.

On appeal, defendant first argued that the trial court erred by declining to give his tendered jury instruction on self-defense. Article II, section 3 of the Colorado Constitution recognizes the right of a person to act in self-defense, and under binding case law, when a defendant presents at least a scintilla of evidence in support of a self-defense instruction, the court must instruct the jury on self-defense. Here, defendant’s claim of accident in the course of self-defense was not so inconsistent as to deprive him of the right to have the jury instructed on self-defense, and counsel’s tendering of the self-defense instruction was sufficient to preserve the issue for appeal. The trial court’s error warrants reversal of the conviction.

Defendant also argued that the trial court erred by declining to suppress statements he made to both a private security guard and the police following his apprehension. The trial court did not err in declining to suppress the statements under Miranda v. Arizona because they were (1) made to a private security guard and not subject to Miranda; (2) based on Miranda’s public safety exception; or (3) volunteered and therefore not the product on an interrogation. However, the trial court did not make the required findings as to whether defendant’s statements to the police warranted suppression because of defendant’s assertion that the statements were involuntary.

Defendant further argued that the trial court erred by admitting photographs showing a large amount of marijuana in his apartment. Because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, it should have been excluded under CRE 403, and the court erred in admitting the photos.

The judgment of conviction was reversed and the case was remanded for a new trial. On remand, the court must conduct an evidentiary hearing on the voluntariness and admissibility of defendant’s statements to the police officers, and photos depicting marijuana should be excluded from evidence.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/27/2018

On Tuesday, March 27, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Lindsay Manor Nursing Home, Inc. v. Commissioner of Internal Revenue

United States v. Jimenez

United States v. Molina

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

Colorado Supreme Court: Narrowing of Time Frame for Charged Acts was Amendment of Form, Not Substance

The Colorado Supreme Court issued its opinion in People v. Sandoval on Monday, March 26, 2018.

Plain Error Review—Sentencing.

The supreme court held that Blakely v. Washington, 542 U.S. 296 (2004), applies to a direct sentence to community corrections. The court further held that it was plain error for the trial court to sentence defendant to an aggravated sentence to community corrections without meeting Blakely’s requirements. The court affirmed the decision of the court of appeals and remanded the case for resentencing.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/26/2018

On Monday, March 26, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Chavez v. State of New Mexico

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