December 11, 2018

Archives for June 2018

Several Judicial Vacancies Announced This Week

The Colorado State Judicial Branch announced several forthcoming vacancies on district and county courts throughout Colorado, due to the retirements of several judges. See below for details.

  • In the 13th Judicial District, Judge Michael J. Schingle will retire from the Morgan County Court, effective January 8, 2019. Judge Schingle was appointed to the Morgan County Court in 2000. Prior to his appointment, he was a private attorney in general practice with emphasis on criminal litigation. He has served as the president of the Morgan County local bar association and the Thirteenth Judicial District Bar Association. He received his undergraduate degree from the University of New Mexico and his law degree from the University of Tennessee Law School. Applications for this position are due no later than 4 p.m. on July 23, and anyone wishing to nominate another must do so no later than 4 p.m. on July 16.
  • In the 8th Judicial District, Judge Devin R. Odell will retire from the district court bench, effective October 6, 2018. Judge Odell was appointed to the bench in 2009. Prior to his appointment, he had a private general practice, worked for the Colorado State Attorney General’s Office, and clerked for the Alaska Supreme Court. He received his undergraduate degree from Yale University and his law degree from the University of California Davis School of Law. Applications for this vacancy are due no later than 4 p.m. on July 19, and anyone wishing to nominate another must do so no later than July 12.
  • In the 11th Judicial District, Judge Norman C. Cooling will retire from the Fremont County Court, effective January 8, 2019. Judge Cooling was appointed to the Fremont County Court in 2007. Prior to his appointment, he was a Deputy District Attorney in the 11th Judicial District for 21 years. He also worked in private practice and was a clerk for the Oklahoma Court of Criminal Appeals’ presiding judge. He received his undergraduate degree from Augustana College and his law degree from Tulsa College of Law. Applications for this position are due no later than 4 p.m. on July 19; anyone wishing to nominate another must do so no later than July 12.
  • In the 20th Judicial District, Judge Noel C. Blum will retire from the Boulder County Court, effective January 8, 2019. Judge Blum was appointed to the Boulder County Court in 2003. Prior to his appointment, Judge Blum was a Deputy District Attorney in Jefferson and Gilpin counties for 19 years. He received his undergraduate degree from the University of Vermont and his law degree from the University of Colorado School of Law. Applications for this position are due no later than 4 p.m. on July 20, and anyone wishing to nominate another must do so by July 13.
  • In the 20th Judicial District, Judge Karolyn Moore will retire from the Boulder County Court, effective January 8, 2019. Judge Moore was appointed to the Boulder County Court in 2011. Prior to her appointment, she was a Deputy District Attorney in Colorado’s First, Ninth, and Twentieth Judicial Districts. She received both her undergraduate and law degrees from the University of Colorado. Applications for this position are due no later than 4 p.m. on July 20; anyone wishing to nominate another must do so by July 13.

For all of these positions, eligible applicants must be qualified electors of the counties or judicial districts in which the vacancies will occur. For the vacancies in the 8th, 11th, and 20th Judicial Districts, applicants must have been admitted to practice law in Colorado for five years. For the Morgan County Court vacancy, applicants must have graduated from high school or obtained the equivalent. Application forms are available on the State Judicial website or from the ex officio chair of the district nominating commissions.

For more information about the individual vacancies, click on the links above. For information about all of the vacancies, click here.

Colorado Court of Appeals: Announcement Sheet, 6/28/2018

On Thursday, June 28, 2018, the Colorado Court of Appeals issued six published opinions and seven unpublished opinions.

People v. Wambolt

People v. Wester-Gravelle

People v. McCulley

Children’s Hospital Colorado v. Property Tax Administrator

Falcon Broadband Inc. v. Banning Lewis Ranch Metropolitan District No. 1

City of Boulder Fire Department v. Industrial Claim Appeals Office

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, 6/28/2018

On Thursday, June 28, 2018, the Tenth Circuit Court of Appeals issued three published opinions and four unpublished opinions.

Shields v. United States Postal Service

Maness v. Allbaugh

Hayes v. Bear

Robertson v. McCullough

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

Who Controls the World?

One fine afternoon autumn day in Cincinnati I watched transfixed as a gigantic flock of migratory birds swarmed over the woods across the street. I didn’t know it then, but I was watching a “complex, self-organizing system” in action. Schools of fish, ant colonies, human brains — and even the financial industry — all exhibit this behavior. And so does “the economy.”

James B. Glattfelder holds a Ph.D. in complex systems from the Swiss Federal Institute of Technology. He began as a physicist, became a researcher at a Swiss hedge fund, and now does quantitative research at Olsen Ltd. in Zurich, a foreign exchange investment manager. He begins his TED Talk with two quotes about the Great Recession of 2007-2008:

When the crisis came, the serious limitations of existing economic and financial models immediately became apparent.

There is also a strong belief, which I share, that bad or over simplistic and overconfident economics helped create the crisis.

Then he tells us where they came from:

You’ve probably all heard of similar criticism coming from people who are skeptical of capitalism. But this is different. This is coming from the heart of finance. The first quote is from Jean-Claude Trichet when he was governor of the European Central Bank. The second quote is from the head of the UK Financial Services Authority. Are these people implying that we don’t understand the economic systems that drive our modern societies?

That’s a rhetorical question, of course:  yes they are, and no we don’t. As a result, nobody saw the Great Recession coming, with its layoffs carnage and near-collapse of the global economy, or its “too big to fail” bailouts and generous bonuses paid to its key players.

Glattfelder tackles what that was about, from a complex systems perspective. First, he dismisses two approaches we’ve already seen discredited.

Ideologies: “I really hope that this complexity perspective allows for some common ground to be found. It would be really great if it has the power to help end the gridlock created by conflicting ideas, which appears to be paralyzing our globalized world.  Ideas relating to finance, economics, politics, society, are very often tainted by people’s personal ideologies.  Reality is so complex, we need to move away from dogma.”

Mathematics: “You can think of physics as follows. You take a chunk of reality you want to understand and you translate it into mathematics. You encode it into equations. Then, predictions can be made and tested. But despite the success, physics has its limits. Complex systems are very hard to map into mathematical equations, so the usual physics approach doesn’t really work here.”

Then he lays out a couple key features of complex, self-organizing systems:

It turns out that what looks like complex behavior from the outside is actually the result of a few simple rules of interaction. This means you can forget about the equations and just start to understand the system by looking at the interactions.

And it gets even better, because most complex systems have this amazing property called emergence. This means that the system as a whole suddenly starts to show a behavior which cannot be understood or predicted by looking at the components. The whole is literally more than the sum of its parts.

Applying this to the financial industry, he describes how his firm studied the Great Recession by analyzing a database of controlling shareholder interests in 43,000 transnational corporations (TNCs). That analysis netted over 600,000 “nodes” of ownership, and over a million connections among them. Then came the revelation:

It turns out that the 737 top shareholders have the potential to collectively control 80 percent of the TNCs’ value. Now remember, we started out with 600,000 nodes, so these 737 top players make up a bit more than 0.1 percent. They’re mostly financial institutions in the US and the UK. And it gets even more extreme. There are 146 top players in the core, and they together have the potential to collectively control 40 percent of the TNCs’ value.

737 or 146 shareholders — “mostly financial institutions in the U.S. and the U.K.” — had the power to control 80% or 40% of the value of 43,000 multinational corporations. And those few hundreds — for their own accounts and through the entities they controlled — bought securitized sub-prime mortgages until the market imploded and nearly brought down the global economy valued in the tens of trillions dollars — giving a whole new meaning to the concept of financial leverage. In what might be the economic understatement of the 21st Century, Glattfelder concludes:

This high level of concentrated ownership means these elite owners possess an enormous amount of leverage over financial risk worldwide. The high degree of control you saw is very extreme by any standard. The high degree of interconnectivity of the top players in the core could pose a significant systemic risk to the global economy.

It took a lot of brute number-crunching computer power and some slick machine intelligence to generate all of that, but in the end there’s an innate simplicity to it all. He concludes:

[The TNC network of ownership is] an emergent property which depends on the rules of interaction in the system. We could easily reproduce [it] with a few simple rules.

The same is true of the mesmerizing flock of birds I watched that day; here’s a YouTube explanation of the three simple rules that explain it[1].


[1] What I saw was a “murmuration” of birds — see this YouTube video for an example. It is explained by a form of complex system analysis  known as “swarm behavior.”

 

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 his latest LinkedIn Pulse article: “Rolling the Rock: Lessons From Sisyphus on Work, Working Out, and Life.”

Colorado Supreme Court: Attorney Violated Colo. RPC 1.8(a)(3) by Not Obtaining Informed Consent for Business Transaction

The Colorado Supreme Court issued its opinion in In the Matter of James C. Wollrab on Monday, June 25, 2018.

Colorado Rules of Professional Conduct—Attorney Discipline—Colo. RPC 1.8—Colo. RPC 4.2.

In this attorney discipline proceeding, the supreme court was confronted with questions as to what Colorado Rules of Professional Conduct 1.8 and 4.2 require of an attorney who enters into a business relationship with his client. The court concluded that the attorney in this case violated Rule 1.8(a)(1) when he signed a lease with his client’s company without complying with any of Rule 1.8(a)’s prophylactic requirements. The attorney also violated Rule 1.8(a)(3) when he entered into an option agreement with his client without obtaining his client’s informed, written consent to his role in the deal. However, because the attorney had the implied consent of his client’s independent counsel for the purposes of the option agreement, he did not violate Rule 1.8(a)(1) or (2) or Rule 4.2 in that transaction. The court remanded the case to the hearing board for determination of the appropriate sanction in light of its conclusions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Appellant Must Adjudicate New Water Right Rather than Amend Existing Augmentation Plans

The Colorado Supreme Court issued its opinion in Coors Brewing Co. v. City of Golden on Monday, June 25, 2018.

Amendment of Augmentation Plans—Return Flows.

This case concerns appellant’s application to amend its decreed augmentation plans to authorize the reuse and successive use of return flows from water that appellant diverts out of priority pursuant to those plans. On competing motions for determinations of questions of law, the water court ruled that (1) any amount of water not beneficially used by appellant for the uses specified in its decreed augmentation plans must be returned to the stream; (2) appellant’s decreed augmentation plans did not authorize the reuse or successive use of such water; and (3) appellant may not obtain the right to reuse or make successive use of such water by way of amendment to its augmentation plans but could only obtain such rights by adjudicating a new water right.

The supreme court affirmed the water court’s judgment. To obtain the right to reuse and make successive use of the return flows at issue, appellant must adjudicate a new water right and may not circumvent this requirement by amending its decreed augmentation plans. Further, the diversion of native, tributary water under an augmentation plan does not change its character. Accordingly, the general rule, which provides that return flows belong to the stream, applies. The water court also correctly construed appellant’s augmentation plans.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/27/2018

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

Hodson v. Reams

United States v. Byers

Gatewood v. Pennicol

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

Judge Nancy Lichtenstein to Retire from Colorado Court of Appeals

On Monday, June 25, 2018, the Colorado State Judicial Branch announced the upcoming retirement of Hon. Nancy Lichtenstein from the Colorado Court of Appeals, effective January 8, 2019.

Judge Lichtenstein was appointed to the Colorado Court of Appeals in 2008. Prior to her appointment, she was a Deputy State Public Defender in both the appellate and trial divisions. Before her service as a public defender, she was in private practice. Judge Lichtenstein was also a guest lecturer at both the University of Colorado and University of Denver law schools, where she lectured on appellate advocacy. She volunteers for East High School’s “We the People: The Citizen and the Constitution” competition, and is an author for West’s Colorado Criminal Practice and Procedure series. She received her undergraduate degree from Northwestern University and her law degree from the University of Denver College of Law.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of the State of Colorado and must have been admitted to practice law in Colorado for five years. Application forms are available on the State Judicial website or from the ex officio chair of the Supreme Court Nominating Commission, Chief Justice-delegate Nathan B. Coats. Application forms must be received no later than 4 p.m. on July 20, 2018; anyone wishing to nominate another must do so no later than July 13, 2018.

For more information on the vacancy and application process, click here.

Colorado Supreme Court: Announcement Sheet, 6/25/2018

On Monday, June 25, 2018, the Colorado Supreme Court issued four published opinions.

In re Rains

Castillo v. People

Coors Brewing Co. v. City of Golden

In the Matter of James C. Wollrab

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: Trial Court Erred in Instructing Jury on Initial Aggressor Exception to Self-Defense With No Supporting Evidence

The Colorado Supreme Court issued its opinion in Castillo v. People on Monday, June 25, 2018.

Self-Defense—Initial Aggressor—Jury Instructions.

Defendant fired a gun at several people in a parking lot. He asserted that he did this in self-defense. Over defendant’s objection, the trial court instructed the jury on two exceptions to the affirmative defense of self-defense: initial aggressor and provocation. The jury convicted defendant of several criminal charges. The supreme court concluded the division of the court of appeals erred when it determined that the trial court correctly instructed the jury on the initial aggressor exception to self-defense. The court further concluded the error was not harmless in light of the prosecution’s repeated references to the initial aggressor exception during closing argument. Accordingly, defendant is entitled to a new trial. The court of appeals’ judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Erred in Granting New Trial for Reasons Not Enumerated in C.R.C.P. 59(d)

The Colorado Supreme Court issued its opinion in In re Rains on Monday, June 25, 2018.

C.R.C.P. 59(d)—Proper Grounds for New Trial.

In this case, the supreme court considered whether the trial court abused its discretion when it granted plaintiffs’ motion for a new trial after a jury found that defendants, two pilots, were not negligent during a near collision that resulted in one plane crashing and killing all five passengers on board. The court concluded that the trial court’s stated reasons did not meet the grounds enumerated in C.R.C.P. 59(d) and that a trial court may not grant a new trial for reasons other than those enumerated in C.R.C.P. 59(d). Thus, the trial court abused its discretion in granting a new trial. The court made its rule to show cause absolute and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/26/2018

On Tuesday, June 26, 2018, the Tenth Circuit Court of Appeals issued four published opinions and seven unpublished opinions.

United States v. Younger

United States v. Marquez

United States v. Ezeah

McElhaney v. Bear

United States v. DeWilliams

Gutierrez Torres v. Sessions

Peavy v. Labor Source

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