December 17, 2018

Archives for September 2018

Chad C. Miller Appointed to 4th Judicial District Court; John E. Scipione Appointed to 18th Judicial District Court

On Thursday, September 20, 2018, Governor Hickenlooper appointed Chad C. Miller to the 4th Judicial District Court and John E. Scipione to the 18th Judicial District Court. Miller will fill a vacancy created by the retirement of Hon. Theresa M. Cisneros, effective January 8, 2019, and Scipione will fill a vacancy created by the retirement of Hon. Kurt Horton, effective September 29, 2018.

Miller is currently at the Office of the State Public Defender in Colorado Springs, where he represents clients facing felony charges, including murder, sexual assault, kidnapping, child abuse, robbery, and other crimes of violence, and where he supervises other public defenders. Prior to his work at the public defender’s office, he worked at Sherman and Howard LLC and Hoffman, Reilly, Pozner, and Williamson LLP (now Reilly Pozner LLP). He received his undergraduate degree from Lehigh University and his law degree from the University of Denver Sturm College of Law.

Scipione is currently an Arapahoe County Court judge, where he oversees a docket of misdemeanor and traffic matters. Previously, he was a District Court Magistrate in the 18th Judicial District, and prior to his work as magistrate he was managing partner of the Denver office of Taussig, Scipione & Taussig, P.C. He has practiced in the areas of family law, dependency and neglect, criminal defense, commercial litigation, medical negligence, catastrophic injury and wrongful death, products liability, and employment/Title VII matters in both state and federal courts. He has also spoken at family law and litigation programs for CBA-CLE. He received his undergraduate degree from State University of New York at Binghamton and his law degree from the University of Colorado Law School.

For more information about these appointments, click here.

Colorado Court of Appeals: Four-part Gallion Test Properly Applied in Determining Driver’s Attempt to Retract Refusal Untimely

The Colorado Court of Appeals issued its opinion in Schulte v. Colorado Department of Revenue on Thursday, September 20, 2018.

Criminal Law—Motor Vehicle—Express Consent—Blood or Breath Test—Refusal Untimely as a Matter of Law.

Police responded to a report of a car parked in the middle of a field. When an officer arrived, he found Schulte asleep in the car with the engine running. A deputy sheriff contacted Schulte and had him perform voluntary roadside maneuvers. Schulte did not perform the tests like a sober person, so the deputy asked him to submit to a chemical test under Colorado’s express consent law. Schulte refused. The deputy later arrested him, drove him to jail, turned him over to booking officers, and drove back to the scene. When the deputy returned to the jail, he completed the license revocation paperwork and began to serve Schulte with the notice of revocation. Before he could do so, Schulte asked to take a blood test. The deputy told him that it was too late. Schulte requested a Division of Motor Vehicles hearing to contest his license revocation. The hearing officer revoked his driving privileges, and the district court upheld the revocation.

On appeal, Schulte contended that the hearing officer and the district court erred when they decided, as a matter of law, that his retraction of his refusal was untimely. Colorado’s express consent law requires a driver to cooperate with law enforcement’s request to take a blood or breath test. If a licensee refuses to submit to a test, law enforcement must serve a notice of revocation on him or her and then take possession of the driver’s license. If a licensee does not offer to retract an initial refusal while the officer remains engaged in requesting or directing the completion of the test, the attempted retraction is untimely as a matter of law. Here, substantial evidence supports the hearing officer’s determination that Schulte did not cooperate with the deputy while the deputy was engaged in requesting or directing the test. The retraction of the refusal was untimely as a matter of law.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Imposition of Valid Sentence Ends Criminal Court’s Subject Matter Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Chavez on Thursday, September 20, 2018.

Criminal Procedure—Post-Conviction Remedies—Search Warrant—Crim. P. 35—Return of Property—Sentencing—Jurisdiction.

In 2004, the police obtained a warrant to search Chavez’s house as part of an investigation and seized evidence they used to charge Chavez in five separate criminal cases, none of which underlie this appeal. In the case underlying this appeal, Chavez pleaded guilty to both sexual assault and kidnapping and was sentenced for those crimes. Three years later, Chavez moved the criminal court for the return of the items seized during the search of his house. The district court denied the motion on the merits.

On appeal, Chavez contended that the district court erred in denying his motion for return of property. The imposition of sentence ends a criminal court’s subject matter jurisdiction, with the sole exception of motions brought under Crim. P. 35. Because a motion for return of property is not authorized by Crim. P. 35, criminal courts do not have jurisdiction over such motions made after sentencing. Thus, the criminal court lacked jurisdiction to address the merits of Chavez’s motion.

The order denying Chavez’s motion was vacated for lack of jurisdiction.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Court Need Not Make Findings Regarding Whether Restitution Would Cause “Serious Hardship or Injustice” to Juvenile

The Colorado Court of Appeals issued its opinion in People in Interest of A.V. on Thursday, September 20, 2018.

Juvenile Delinquency—Sentencing—Restitution—Waiver—Evidence—Reasonableness.

A.V. was arrested in connection with a series of home and business burglaries. The victim businesses included Animal Attractions Pet Store (Animal Attractions) and the Country Inn Restaurant (Country Inn). Country Inn sustained extensive fire damage in the burglary, and the fire destroyed most of the business. As part of a global case disposition, A.V. pleaded guilty to some counts in exchange for dismissal of other counts, stipulating to a factual basis and agreeing to pay restitution to all victims, including those in the dismissed cases. The juvenile court ordered restitution of $1,000 to Country Inn’s owner for the deductible and $681,600 to Country Inn’s insurer for the repair work. The juvenile court further found that the loss amounts submitted by Animal Attractions and its insurer in the victim impact statements sufficiently established the victims’ losses to order restitution in the amount requested.

On appeal, A.V. contended that no facts exist to show that he caused the Country Inn fire and that the prosecution failed to meet its burden of proving proximate cause for these claimed losses. Here, A.V. waived his challenge to proximate cause by (1) stipulating to a factual basis in the plea agreement and at the providency hearing; (2) stipulating to pay restitution to the victims of the dismissed counts (in this case the arson count) in the plea agreement; (3) agreeing with the prosecutor before the restitution hearing that A.V.’s stipulated factual bases in all cases included a stipulation to causation; and (4) asking the court to order $470,874.47 for losses related to the dismissed arson count.

A.V. next contended that the juvenile court erroneously ordered him to pay the estimated repair costs to Country Inn’s insurer, rather than actual costs incurred to date. Here, the prosecution presented competent evidence of the estimated expenses, which A.V. did not rebut. Therefore, the juvenile court did not err.

A.V. also contended that the invoices submitted with Animal Attractions’ victim impact statement were insufficient to establish restitution and that the prosecution was required to present witness testimony to satisfy its burden. The restitution statute does not require the prosecution to present evidence in the form of testimony. Here, because the documents support the court’s order and A.V. offered no rebuttal evidence, the juvenile court’s order was not an abuse of discretion.

A.V. last contended that the juvenile court was required to make specific reasonableness findings before ordering restitution and that $692,806.20 was not a reasonable amount of restitution to be awarded against an incarcerated juvenile. However, the statute’s plain language mandates that the juvenile court order full restitution for the victims’ losses, and the juvenile court is not required to make specific reasonableness findings before imposing restitution.

The restitution orders were affirmed.

Summary provided courtesy of Colorado Lawyer.

The Landlord’s Game

“Buy land – they aren’t making it anymore.”
Mark Twain

You know how Monopoly games never end? A group of academicians wanted to know why. Here’s an article about them, and here’s their write-up. Their conclusion? Statistically, a game of Monopoly played casually (without strategy) could in fact go on forever.

I once played a game that actually ended. I had a strategy: buy everything you land on, build houses and hotels as fast as possible, and always mortgage everything to the hilt to finance acquisition and expansion. I got down to my last five dollars before I bankrupted everybody else. It only took a couple hours. Okay, so the other players were my kids. Some example I am. Whatever economic lessons we might have gained from the experience, they certainly weren’t what the game’s creator had in mind.

While Andrew Carnegie and friends were getting rich building American infrastructure, industry, and institutions, American society was experiencing a clash between the new rich and those still living in poverty. In 1879, economist Henry George proposed a resolution in his book Progress and Poverty: An Inquiry into the Cause of Industrial Depressions and of Increase of Want with Increase of Wealth: The Remedy.

Travelling around America in the 1870s, George had witnessed persistent destitution amid growing wealth, and he believed it was largely the inequity of land ownership that bound these two forces — poverty and progress — together. So instead of following Twain by encouraging his fellow citizens to buy land, he called on the state to tax it. On what grounds? Because much of land’s value comes not from what is built on the plot but from nature’s gift of water or minerals that might lie beneath its surface, or from the communally created value of its surroundings: nearby roads and railways; a thriving economy, a safe neighborhood; good local schools and hospitals. And he argued that the tax receipts should be invested on behalf of all.

From “Monopoly Was Invented To Demonstrate The Evils Of Capitalism,by new economist Kate Raworth.[1]

George’s book eventually reached the hands of Elizabeth Magie, the daughter of newspaperman James Magie and a social change rabble-rouser in her own right. Influenced by her father’s politics and Henry George’s vision, she created The Landlord’s Game in 1904 and gave it two sets of rules, intending for it to be an economic learning experience. Again quoting from Ms. Raworth’s article:

Under the ‘Prosperity’ set of rules, every player gained each time someone acquired a new property (designed to reflect George’s policy of taxing the value of land), and the game was won (by all!) when the player who had started out with the least money had doubled it. Under the ‘Monopolist’ set of rules, in contrast, players got ahead by acquiring properties and collecting rent from all those who were unfortunate enough to land there — and whoever managed to bankrupt the rest emerged as the sole winner (sound a little familiar?).

The purpose of the dual sets of rules, said Magie, was for players to experience a ‘practical demonstration of the present system of land grabbing with all its usual outcomes and consequences’ and hence to understand how different approaches to property ownership can lead to vastly different social outcomes.

The game was soon a hit among Left-wing intellectuals, on college campuses including the Wharton School, Harvard and Columbia, and also among Quaker communities, some of which modified the rules and redrew the board with street names from Atlantic City. Among the players of this Quaker adaptation was an unemployed man called Charles Darrow, who later sold such a modified version to the games company Parker Brothers as his own.

Once the game’s true origins came to light, Parker Brothers bought up Magie’s patent, but then re-launched the board game simply as Monopoly, and provided the eager public with just one set of rules: those that celebrate the triumph of one over all. Worse, they marketed it along with the claim that the game’s inventor was Darrow, who they said had dreamed it up in the 1930s, sold it to Parker Brothers, and become a millionaire. It was a rags-to-riches fabrication that ironically exemplified Monopoly’s implicit values: chase wealth and crush your opponents if you want to come out on top.

“Chase wealth and crush your opponents” — that was my winning Monopoly strategy. It requires a shift away from the labor economy — selling things workers make or services they provide — to the rentier economy — owning assets you can charge other people to access and use. The scarcer the assets, the more you can charge. Scarcity can be natural, as is the case with land, or it can be artificial, the result of the kind of “regressive regulation” we looked at last time, that limits access to capital markets, protects intellectual property, bars entry to the professions, and concentrates high-end land development through zoning and land use restrictions.

Artificial scarcity can also be the result of cultural belief systems — such as those that underlie the kind of stuff that shows up in your LinkedIn and Facebook feeds: “7 Ways to Get Rich in Rental Real Estate” or “How to Create a Passive Income From Book Sales and Webinars.” In fact, it seems our brains are so habitually immersed in Monopoly thinking that proposals such as Henry George’s land ownership  tax — or its current equivalents such as superstar economist Thomas Piketty’s wealth tax, Harvard law and ethics professor Lawrence Lessig’s notions of a creative commons, or the widely-studied and broadly-endorsed initiation of a “universal basic income” — are generally tossed off as hopelessly idealistic and out of touch.

More to come.


[1] Kate Raworth holds positions at both Oxford and Cambridge. We previously looked at her book Doughnut Economics: Seven Ways to Think Like a 21st-Century Economist  (2017).

 

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: Error in Denying Defendant His Tendered Self-Defense Instruction Not Harmless

The Colorado Court of Appeals issued its opinion in People v. Koper on Thursday, September 20, 2018.

Criminal Law—Jury Instructions—Self-Defense—Transferred Intent—Affirmative Defense—Prosecutorial Misconduct.

While at a bar, defendant said something to Abram’s sister that offended Abram. Defendant tried to make amends by offering Abram a beer. Abram responded by punching defendant twice in the face. Defendant then drew his firearm, for which he had a concealed carry permit, and aimed it at Abram. After a short standoff, defendant handed the gun to his fiancée and the two left the bar. A jury found defendant guilty of two counts of felony menacing and prohibited possession of a firearm. The first count of felony menacing named the alleged victim as a security guard who had stepped between defendant and Abram after defendant drew his weapon; the second count named the alleged victim as another bar patron who had been sitting near Abram.

On appeal, defendant contended that the trial court erred in rejecting his jury instructions on the affirmative defense of self-defense. Here, defendant raised credible evidence that he acted in self-defense against Abram. Defendant’s intent to defend himself against Abram would, if the jury believed his testimony, allow the intent as to Abram to transfer to the encounter with the alleged victims. Thus, the trial court erred in rejecting defendant’s jury instructions on self-defense as an affirmative defense to the menacing charges. Further, the error was not harmless because while the defense’s theory of the case instruction referred generally to self-defense, the instruction did not require the prosecution to disprove self-defense beyond a reasonable doubt.

Defendant also contended that prosecutorial misconduct required reversal of his conviction for possession of a firearm while intoxicated. Here, the prosecutor asked defendant 44 times whether another witness’s testimony was incorrect, wrong, or untrue, or whether the witness had lied; this went beyond asking non-prejudicial questions designed to highlight discrepancies in the evidence. The error was plain and warranted reversal.

The judgment was reversed and the case was remanded for a new trial on all charges.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Due Process Violated When Jury Could Not See Defendant During Children’s Testimony

The Colorado Court of Appeals issued its opinion in People v. Aldridge on Thursday, September 20, 2018.

Criminal Law—Right to Confrontation—Right to be Present During Trial—Child Testimony—Closed Circuit Television.

C.O. and L.A. spent about three weeks camping alone with Aldridge, their maternal grandfather. At the time, C.O. was 4 years old and L.A. was 9 years old. Both girls alleged that they had touched Aldridge’s penis during the camping trip and that it got stiff. A jury found Aldridge guilty of two counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, two counts of sexual assault on a child as part of a pattern of abuse, four counts of sexual assault on a child by one in a position of trust—victim under 15, four counts of sexual assault on a child, and two counts of aggravated incest. The trial court sentenced him to 116 years to life in the custody of the Department of Corrections.

On appeal, Aldridge contended that the trial court erred by excluding him from the courtroom while C.O. and L.A. testified. Before trial, the People moved for C.O. and L.A. to testify by closed-circuit television under C.R.S. § 16-10-402. Over Aldridge’s objection, the trial court granted the motion. Neither the trial court nor the parties indicated that Aldridge, rather than the children, would be removed from the courtroom. At trial, rather than having the witnesses testify from another room, the trial court permitted the children to testify in the courtroom while the judge and defendant watched from the judge’s chambers. The jury could not see or hear defendant during the children’s testimony. Aldridge’s exclusion from the courtroom during the children’s testimony, in the absence of a stipulation, violated C.R.S. § 16-10-402, and this procedure violated defendant’s due process right to be present because he was denied an opportunity to exert a psychological influence on the jury. This error was not harmless beyond a reasonable doubt.

The judgment and sentence were reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 9/27/2018

On Thursday, September 27, 2018, the Colorado Court of Appeals issued no published opinion and 28 unpublished opinions.

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, 9/26/2018

On Wednesday, September 26, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Green v. Life Insurance Company of North America

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

Colorado Supreme Court: Dead Man’s Statute Now Applies in “All Civil Actions”

The Colorado Supreme Court issued its opinion in Estate of Brookoff v. Clark on Monday, September 24, 2018.

Statutory Interpretation—Dead Man’s Statute.

In this case, the supreme court interpreted Colorado’s “Dead Man’s Statute” in light of recent amendments that removed language limiting the statute’s applicability to matters in which a decedent’s estate was a party. Discerning no ambiguity in the current version of the statute, the court held that these amendments expand the scope of the statute such that it is now applicable “in all civil actions.” The court also held that because the statute applies irrespective of the potential impact of a judgment on an estate, the existence of insurance coverage is not a factor militating for or against the applicability of the statute.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Strict Privity Rule Bars Claims Against Attorneys by Non-Clients

The Colorado Supreme Court issued its opinion in Bewley v. Semler on Monday, September 24, 2018.

Strict Privity—Standing—Pleading.

In this case, the supreme court considered whether the strict privity rule bars claims against attorneys by non-clients absent a showing of fraud, malicious conduct, or negligent misrepresentation. The court held that, absent any wrongdoing, the strict privity rule does bar claims against attorneys by non-clients because holding otherwise may force attorneys to place non-clients’ interests ahead of clients’ interests. Here, because Semler did not allege any fraud, malicious conduct, or negligent misrepresentation, he lacked standing to assert a breach-of-contract claim.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/25/2018

On Tuesday, September 25, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Almarez

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