November 15, 2018

Archives for October 2018

Governor Hickenlooper Appoints Judges to Second and Fifth Judicial District Courts

On Tuesday, October 30, 2018, the governor’s office announced Governor Hickenlooper’s appointment of judges to the district courts in the Second and Fifth Judicial Districts.

Darryl Fitzgerald Shockley was appointed to the Second Judicial District Court. He will fill a vacancy occasioned by the retirement of Hon. William Robbins, effective December 31, 2018. Shockley is currently a Chief Deputy District Attorney in the Denver DA’s Office, where he serves in the Economic Crimes, Family Violence, and Gang Units. He has been a prosecutor for 14 years and spent many years focusing on white collar crimes, including computer crimes, embezzlement, identity theft, securities fraud, and organized crime. Before becoming a DA, Shockley was a civil defense litigator with White and Steele, where his practice included construction defect litigation and medical malpractice. He received his undergraduate degrees from the University of Missouri and his law degree from the University of Missouri School of Law.

Catherine Jane Cheroutes was appointed to the Fifth Judicial District Court. She will fill a vacancy created by the retirement of Hon. Wayne Patton, effective February 1, 2019. Cheroutes is currently the managing partner of Cheroutes Zweig PC, where she primarily practices domestic relations law. She also represents clients in criminal defense, and accepts court appointments in dependency and neglect, juvenile delinquency, and divorce cases. She received her undergraduate degree from Franklin & Marshall College and her law degree from the University of Colorado School of Law.

Reed Wilson Owens was also appointed to the Fifth Judicial District Court. He will fill a vacancy created by the retirement of Hon. Frederick Gannett, effective January 1, 2019. Owens is currently the Lead Deputy Public Defender in the Dillon Office of the Colorado State Public Defender. His practice consists of criminal defense, including juvenile delinquency, misdemeanor, and felony matters. He received his undergraduate degree from Colorado College and his law degree from the University of Denver Sturm College of Law.

For more information about the appointments, click here.

Tenth Circuit: Unpublished Opinions, 10/30/2018

On Tuesday, October 30, 2018, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Kucera v. Central Intelligence Agency

Nosewicz v. Janosko

Bruce v. Pacific Specialty Insurance Co.

Blair v. Raemisch

Sweeney v. Allred

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

Colorado Supreme Court: Balancing Test Appropriate when Deciding Competing Interests of Potential Parents in IVF Divorce Case

The Colorado Supreme Court issued its opinion in In re Marriage of Rooks on Monday, October 29, 2018.

Divorce—Assisted Reproduction—Embryos.

In this dissolution of marriage proceeding, the supreme court reviewed how courts should resolve disagreements over the disposition of a couple’s cryogenically preserved pre-embryos when that couple divorces. The court held that because the underlying interests at stake are the equivalently important, yet competing, right to procreate and right to avoid procreation, courts should strive, where possible, to honor both parties’ interests in procreational autonomy. Thus, courts should look first to any existing agreement expressing the spouses’ intent regarding disposition of the couple’s remaining pre-embryos in the event of divorce. In the absence of such an agreement, courts should seek to balance the parties’ respective interests in receipt of the pre-embryos. In balancing those interests, courts should consider the intended use of the party seeking to preserve the pre-embryos; a party’s demonstrated ability, or inability, to become a genetic parent through means other than use of the disputed pre-embryos; the parties’ reasons for undertaking in vitro fertilization in the first place; the emotional, financial, or logistical hardship for the person seeking to avoid becoming a genetic parent; any demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce process; and other considerations relevant to the parties’ specific situation. However, courts should not consider whether the party seeking to become a genetic parent using the pre-embryos can afford a child. Nor shall the sheer number of a party’s existing children, standing alone, be a reason to preclude preservation or use of the pre-embryos. Finally, courts should not consider whether the party seeking to become a genetic parent using the pre-embryos could instead adopt a child or otherwise parent non-biological children. The court reversed the judgment of the court of appeals and remanded the case with directions to return the matter to the trial court to apply the announced balancing framework.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Failure to Give Jury Instruction on “Penetration” Not Plain Error where Fact Not At Issue

The Colorado Supreme Court issued its opinion in People v. Lozano-Ruiz on Monday, October 29, 2018.

Plain Error—Criminal Jury Instructions.

In this case, the supreme court reviewed the trial court’s reversal of a sexual assault conviction for failure to provide a jury instruction containing the statutory definition of “sexual penetration.” The court concluded that because the question of whether sexual penetration had occurred was not a contested issue at trial, the county court did not plainly err by failing to give a corresponding instruction to the jury. Accordingly, the court reversed the trial court’s order and affirmed Lozano-Ruiz’s conviction.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/29/2018

On Monday, October 29, 2018, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Johnson v. City of Roswell

Elder v. Farris

United States v. Elliott

United States v. Underwood

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

Colorado Supreme Court: Announcement Sheet, 10/29/2018

On Monday, October 29, 2018, the Colorado Supreme Court issued two published opinions.

In re Marriage of Rooks

People v. Lozano-Ruiz

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, 10/26/2018

On Friday, October 26, 2018, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Collins v. Diversified Consultants, Inc.

Martin v. Greisman

Reid v. United States

Martinez v. Trani

Corley v. Commissioner, SSA

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

Poverty Gets Personal

“In the sixties we waged a war on poverty and poverty won.” – Ronald Reagan

“Poverty is a ‘personality defect.’” – Margaret Thatcher

The Gipper was referring to LBJ and his Great Society, but he got it wrong: the Great Society failed to eliminate poverty because it never got all the way to dealing with it. Instead it took a more politically acceptable path focused on education and community involvement — not bad things, but there’s a difference. As for the Iron Lady, there’s actually some truth in what she said (we’ll look at that in a moment), but I suspect not in the way she probably meant it. She was more likely voicing the common attitude that the poor are intellectually impaired, morally flawed, prone to bad lifestyle choices, and criminally inclined, and therefore worthy of only the most grudging kind of help. That attitude and the Great Society’s reputed loss[1] in its War on Poverty explain a lot about today’s prevailing approach to poverty relief.

Rutger Bregman tackles this tough subject in his book Utopia for Realists: And How We Can Get There (2017):

A world without poverty— it might be the oldest utopia around. But anybody who takes this dream seriously must inevitably face a few tough questions. Why are the poor more likely to commit crimes? Why are they more prone to obesity? Why do they use more alcohol and drugs? In short, why do the poor make so many dumb decisions?

He continues with more tough questions:

What if the poor aren’t actually able to help themselves? What if all the incentives, all the information and education are like water off a duck’s back? And what if all those well-meant nudges [toward self-help and away from government assistance] only make the situation worse?

He then profiles the work of Eldar Shafir, a psychologist at Princeton, and Sendhill Mullainathan, an economist at Harvard, who formulated a theory of poverty based on the concept of “scarcity mentality.” Their research shows that the chronic poor are really good at scrambling after short term solutions, but tend to be inept at sustainable long-term thinking. It’s a matter of mental bandwidth: today’s urgency gets all the attention, leaving other matters to go begging (sometimes literally). In fact, their research estimates that poverty costs a person about 13-14 IQ points. In other words, living in a chronic state of being poor can eventually rewire the human brain to the point where clear thinking and prudent behavior are challenged.

Hence the grain of truth in Margaret Thatcher’s comment.

One problem with that attitude, though, is that it uses the terms “poor” and “poverty” interchangeably. But not everyone who’s poor is also impoverished. At the simplest level, the poor are poor because they lack money. But poverty goes further: it’s a chronic condition that generates a specific outlook and way of approaching life. When that condition is shared, it becomes a culture. You know it when you’re around poverty; you might not know it when you’re around poor.

Government assistance programs don’t make that distinction. As a result, as Bregman states, social welfare has “devolved into a behemoth of control and humiliation.”

An army of social services workers is needed to guide people through the jungle of eligibility, application, approval, and recapture procedures. . . . The welfare state, which should foster people’s sense of security and pride, has degenerated into a system of suspicion and shame.

Is it really that bad? Try applying for food stamps sometime.

Our bank account was thin after a business failure and some health issues. Following the advice of family, my wife applied for food stamps. Her experience was everything Bregman describes. Case in point: after two mandatory daylong job search classes (how to write a resume, set up a LinkedIn page, use the internet to check out online job postings…), she had to prove her willingness to work by reporting for 8 hours per week of wall-washing duty at a church community center. She washed the same walls every week — the same walls that other people were also washing every week — the cleanest walls in Denver. Washing walls — pointlessly, needlessly, endlessly — to prove you’re not a slacker.

Help with the grocery bill was bittersweet for a couple months, then we opted out. It’s easy to intellectualize and debate about “all the information and education” and “the jungle of eligibility, application, approval, and recapture procedures.” It’s not so easy when they get personal. We were poor but not impoverished, and the system was just too demoralizing to continue. Maybe that was the point.

Plus, earning money reduces or eliminates benefits — a result which economist Guy Standing calculates is equivalent to the imposition of an 80% tax. The quandary is obvious: earn money or opt out of the system— either way, you pay the tax. Most people — even the cognitively-impaired — wouldn’t agree to a deal like that.

How did “Brother, can you spare a dime?” turn into this? Curiously, the current welfare system derived from the same post-WWII economic surge that rewarded working people. We’ll look at how that happened next week. In the meantime, have a listen:

This week’s post uses portions of a LinkedIn Pulse article I wrote last year about poverty, crime, and homelessness. Next week’s post will also tap that source. You might like to jump ahead and read the article: Why Don’t We Just solve Some Problems For a Change?


[1] Not everyone agrees that we lost the War on Poverty. See this article that considers both sides.

 

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, 10/25/2018

On Thursday, October 25, 2018, the Colorado Court of Appeals issued no published opinion and 32 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, 10/24/2018

On Wednesday, October 24, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Dopp v. Martin

United States v. Shaw

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

Colorado Court of Appeals: Sovereign Immunity Under CGIA Waived for Injuries Suffered During Operation of Jail

The Colorado Court of Appeals issued its opinion in Hernandez v. City & County of Denver on Thursday, October 18, 2018.

Negligence—Willful and Wanton Conduct—Colorado Governmental Immunity Act—Public Employee—Waiver of Sovereign Immunity—Jail Operation.

Hernandez sustained injuries while a pretrial detainee at the Denver Detention Center. She sued six of the jail’s employees, including Deputy Sheriff Dodson, alleging, as relevant to this appeal, willful and wanton conduct. Following an evidentiary hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), and pursuant to C.R.C.P. 12(b)(1), the district court found that Dodson and another defendant had not engaged in willful and wanton conduct and therefore enjoyed immunity from suit on those allegations.

On appeal, Hernandez alleged that the district court erred in finding Dodson was entitled to immunity. The Colorado Governmental Immunity Act provides that a public employee may not assert immunity in an action for injuries resulting from the negligent operation of a jail, regardless of whether the employee engaged in willful and wanton conduct. Because the allegations of willful and wanton conduct here do not raise an issue of sovereign immunity, the district court erred in dismissing them before trial via Rule 12(b)(1) and a Trinity hearing.

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

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Collection Agency’s Bold and All-Caps Statement Would Be Confusing to Least Sophisticated Consumer

The Colorado Court of Appeals issued its opinion in Garrett v. Credit Bureau of Carbon County on Thursday, October 18, 2018.

Debt CollectionColorado Fair Debt Collection Practices ActLeast Sophisticated Consumer.

Credit Bureau of Carbon County (Credit Bureau) is an agency that collects or attempts to collect debts owed, due, or asserted to be owed or due to another. It sent Garrett two collection notices demanding payment on a consumer debt. Garrett sued Credit Bureau, asserting that the language of its communications overshadowed and contradicted the statutory requirements of the Colorado Fair Debt Collection Practices Act (the Act). The district court concluded that Credit Bureau’s notices had not violated the Act and denied Garrett’s motion for judgment on the pleadings, granted Credit Bureau’s motion for summary judgment, and dismissed the case.

On appeal, Garrett contended that the district court wrongly concluded that Credit Bureau did not violate the Act because the format and content of Credit Bureau’s notices overshadowed or contradicted the statutorily required disclosures. The Act requires debt collectors to provide a debt validation notice describing the debt. It prohibits debt collectors from using false, deceptive, or misleading representations when collecting a debt. Overshadowing occurs when a collection letter contains the requisite validation notice, but that information is obscured or diminished by the letter’s presentation or format. Contradiction occurs when language accompanying the validation notice is inconsistent with the substance of the rights and duties that the statute imposes. In Flood v. Mercantile Adjustment Bureau, LLC, 176 P.3d 769 (Colo. 2008), the Supreme Court adopted the “least sophisticated consumer” test to determine whether a collection agency’s notice was confusing with respect to the statutorily required disclosures. Here, Credit Bureau’s use of the bold and capitalized phrase “WE CANNOT HELP YOU UNLESS YOU CALL” in the second notice would confuse the least sophisticated consumer because it was capable of being reasonably interpreted as changing the manner in which the consumer was required by law to dispute the debt or its amount. As a matter of law, the notice was deceptive or misleading in violation of the Act.

The judgment was reversed and the case was remanded for the district court to enter judgment for Garrett and award her statutory damages, costs, and a reasonable amount of attorney fees incurred on appeal.

Summary provided courtesy of Colorado Lawyer.