December 13, 2018

Archives for November 2018

Colorado Gives: Legal Aid Foundation Promotes Justice for All

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Civil Legal Aid helps low-income Coloradans solve serious legal problems that threaten their most basic needs. You can make a difference for some of the least fortunate and most vulnerable members of our community by making a Colorado Gives Day donation to the Legal Aid Foundation here.

Contributions to the Legal Aid Foundation support Colorado Legal Services (CLS), which is the only agency in the state that provides free legal services to over 10,000 Coloradans every year, giving priority to the poor, elderly and disabled in the greatest economic and social need. Unfortunately, for every person served by CLS, at least one income-eligible person is turned away because of inadequate resources.

As lawyers, we know first-hand the value and necessity of quality legal representation when faced with a potentially life-changing legal problem.  This is especially true of low-income families, whose basic survival may depend on being able to stay in their home, protect themselves from abuse or exploitation, or secure food and necessary health care.

Making a Colorado Gives Day donation is a quick and easy, and all donations receive a proportional “boost” from a $1 Million Incentive Fund.  Please join lawyers from around the state today to move Colorado closer to fulfilling the American promise of justice for all.

To learn more about the Legal Aid Foundation, please visit www.legalaidfoundation.org.

Dawn Mann Appointed to Huerfano County Court in 3rd Judicial District

On Wednesday, November 28, 2018, Governor Hickenlooper announced the appointment of Dawn Mann to the Huerfano County Court in the 3rd Judicial District. Mann will fill a vacancy created by the appointment of Hon. John C. McKisson, III, to the district court bench, effective January 8, 2019.

Mann is currently a solo practitioner at The Mann Law Firm in Pueblo, where she has a general practice. She is also a contract attorney with the Colorado Office of the Child’s Representative and the Colorado Office of Dispute Resolution. She received her law degree from Nova Southeastern University and her undergraduate degree from Florida Atlantic University.

For more information about the appointment, click here.

Tenth Circuit: Unpublished Opinions, 11/29/2018

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

United States v. Sedillo

Estate of Duke v. Gunnison County Sheriff’s Office

United States v. Triplett

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

 

Colorado Gives: Rocky Mountain Children’s Law Center Compassionately Transforms the Lives of Children who Experience Abuse, Neglect or Trauma

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

For more than thirty-six years, the Rocky Mountain Children’s Law Center has improved the lives of more than 25,000 abused, neglected, and at-risk children and youth through compassionate legal advocacy, clinical services, education, and public policy reform.  Using a team of lawyers and social workers, the Children’s Law Center advocates for children in the courtroom, in the community, and at the Capitol.

The Children’s Law Center works to improve the child welfare and foster systems through policy advocacy, working to make children a political priority at the local, state, and national levels. The Children’s Law Center has made great progress in this area. Most recently, they launched Colorado’s first Baby Court in Pueblo – a specialty court providing wraparound services for children ages 0-3 and families involved in Dependency and Neglect cases. They also created the first Colorado Child Protection Ombudsman Program, promoted a 2013 Senate Bill to reduce the number of child abuse fatalities in the state, promoted a 2013 House Bill to streamline the process to report child abuse, and much more.

Here’s how their programs improve kids’ lives:

  • They help children with special education needs thrive in their appropriate school settings.
  • They help children heal and thrive with caregivers when parents are unable to care for their basic needs and wellbeing.
  • Their attorneys and social workers represent children who have experienced domestic violence.
  • They help young adults, most of whom have experienced foster care, obtain basic documentation such as social security cards and birth certificates.
  • Current and former foster youth in their Project Foster Power program advocate to improve the child welfare and foster care systems through policy advocacy.
  • Their Trauma-informed Bloom Yoga program helps kids process and heal from their trauma.

The Children’s Law Center relies heavily on donations to continue providing compassionate legal advocacy to children who have experienced abuse, neglect or trauma. Their annual operating expenses total over one million dollars per year. Please make a gift to the Children’s Law Center on Colorado Gives Day by clicking here or any day by filling out the form on this webpage.

There’s No Such Thing as a Free Lunch — True or False?

Last time, we were introduced to the idea of a universal basic income (UBI). We can assume that the pros and cons have been thoroughly researched and reasonably analyzed, and that each side holds its position with utmost conviction.

We can also assume that none of that reasonableness and conviction will convert anyone from one side to the other, or win over the uncommitted. Reason doesn’t move us: we use it to justify what we already decided, based on what we believe. SeeWhy Facts Don’t Change Our Minds,” The New Yorker (February 2017) and “This Article Won’t Change Your Mind,” The Atlantic (March 2017).

History doesn’t guide us either — see Why We Refuse to Learn From History from Big Think and Why Don’t We Learn From History, from military historian Sir Basil Henry Liddell Hart. The latter contains conventional wisdom such as this:

The most instructive, indeed the only method of learning to bear with dignity the vicissitude of fortune, is to recall the catastrophes of others.

History is the best help, being a record of how things usually go wrong.

There are two roads to the reformation for mankind— one through misfortunes of their own, the other through the misfortunes of others; the former is the most unmistakable, the latter the less painful.

I would add that the only hope for humanity, now, is that my particular field of study, warfare, will become purely a subject of antiquarian interest. For with the advent of atomic weapons we have come either to the last page of war, at any rate on the major international scale we have known in the past, or to the last page of history.

That’s seems like good advice, but it mostly goes unheeded. It seems we’d rather make our own mistakes.

If reasoned analysis and historical perspective don’t inform our responses to radically new ideas like UBI, then what does? Many things, but cultural belief is high on the list. Policy is rooted in culture, culture is rooted in shared beliefs, and beliefs are rooted in history. Cultural beliefs shape individual bias, and the whole belief system becomes sacred in the culture’s mythology. Try to subverts cultural beliefs, and the response is outrage and entrenchment.

All of which means that each of us probably had a quick true or false answer to the question in this week’s blog post title, and were ready to defend it with something that sounded reasonable. Our answer likely signals our kneejerk response to the idea of UBI. The “free lunch”— or, more accurately, “free money” — issue appears to be the UBI Great Divide: get to that point, and you’re either pro or con, and there’s no neutral option. (See this for more about where the “no free lunch” phrase came from.[1])

The Great Divide is what tanked President Nixon’s UBI legislation. The plan, which would have paid a family of four $1,600/year (equivalent to $10,428 today) was set to launch in the midst of an outpouring of political self-congratulation and media endorsement, only to be scuttled by a memo from a White House staffer that described the failure of a British UBI experiment 150 years earlier. UBI was in fact a free lunch; its fate was thus sealed.

As it turns out, whether the experiment failed or not was lost in a 19th Century fog of cultural belief, so that opponents of the experiment pounced on a bogus report about its impact to justify passing the Poor Law Amendment Act of 1834 — which is what they wanted to do anyway. The new Poor Law was that era’s version of workfare, and was generated by the worst kind of scarcity mentality applied to the worst kind of scarcity. Besides creating the backdrop to Charles Dickens’ writing, the new Poor Law’s philosophical roots still support today’s welfare system:

The new Poor Law introduced perhaps the most heinous form of “public assistance” that the world has ever witnessed. Believing the workhouses to be the only effective remedy against sloth and depravity, the Royal Commission forced the poor into senseless slave labor, from breaking stones to walking on treadmills. . . .

For the whole history lesson, see “The Bizarre Tale Of President Nixon’s Basic Income Plan.”

And so we’re back to asking whether UBI is a free lunch or not. If it is, then it’s an affront to a culture that values self-sufficiency. If it isn’t, then it requires a vastly different cultural value system to support it. The former believes that doing something — “making a living” at a job — is how you earn your daily bread. The latter believes you’re entitled do sustenance if you are something: i.e., a citizen or member of the nation, state, city, or other institution or community providing the UBI. The former is about activity, the latter is about identity. This Wired article captures the distinction:

The idea [of UBI] is not exactly new—Thomas Paine proposed a form of basic income back in 1797—but in this country, aside from Social Security and Medicare, most government payouts are based on individual need rather than simply citizenship.

UBI is about “simply citizenship.” It requires a cultural belief that everybody in the group shares its prosperity. Cultural identity alone ensures basic sustenance — it’s a right, and that right makes Poor Laws and workfare obsolete.

The notion of cultural identity invites comparison between UBI and the “casino money” some Native American tribes pay their members. How’s that working? We’ll look at that next time.


[1] Yes, Milton Friedman did in fact say it, although he wasn’t the only one. And in a surprising twist, he has been criticized for advocating his own version of UBI.

 

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, 11/29/2018

On Thursday, November 29, 2018, the Colorado Court of Appeals issued three published opinions and 30 unpublished opinions.

People v. Johnston

People v. Lancaster

In re Estate of Little

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, 11/28/2018

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

Bilder v. Mathers

United States v. Daniels

United States v. Magnan

Leon v. Summit County

Agrawal v. Ogden

McDonald v. Arapahoe County

Vue v. Whitaker

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

Colorado Gives: Rocky Mountain Immigrant Advocacy Network Promotes a Humane Immigration System

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

The Rocky Mountain Immigrant Advocacy Network (RMIAN, pronounced “remain”) is a nonprofit legal services organization that believes justice for immigrants means justice for all. RMIAN provides life-changing legal services to vulnerable immigrant children in Colorado, and to adults in immigration detention. Without this assistance from RMIAN’s attorneys, RMIAN’s child clients and individuals in detention would be forced to face immigration court hearings entirely on their own, an injustice by any standard. A national study, headed by a federal judge, found that immigrants with lawyers are five times more likely to win their cases than those without. For many, a loss in immigration court means deportation and a forced return to the persecution, abuse, or other violence from which they fled. For many others, it signifies a permanent and heartbreaking separation from spouses, partners, children, siblings, and other loved ones.  RMIAN’s programs are dedicated to ensuring legal representation, due process, and support.

RMIAN’s Detention Program has a daily presence at the immigration detention center in Aurora, Colorado, where over 900 individuals are detained on civil immigration charges every day. RMIAN’s attorneys provide know-your-rights presentations before detained individuals have to go before the immigration judge for the first time, assist with applications and case preparation, refer cases to pro bono attorneys, represent clients, and provide social service support for the most vulnerable detainees. Recent RMIAN cases involving clients in detention include a man from Somalia granted asylum on the basis of his political opinion; a longtime lawful permanent resident granted a second chance by the immigration judge to stay with his family in Colorado; a young man from Honduras granted asylum based on the persecution he would face because of his sexual orientation; and numerous clients who won bond reductions with RMIAN’s representation. In 2015, RMIAN’s Detention Program provided 209 know-your-rights presentations to over 1,700 individuals in detention, conducted over 800 individual intakes, held 33 workshops for over 100 individuals fighting their cases on their own, and provided intensive individual assistance to over 500 detainees. In addition, RMIAN’s staff attorneys and volunteer attorneys represented 59 clients in their complete immigration court cases.

RMIAN’s Children’s Program provides immigration legal services to children through Colorado. Recent clients include a young man who was granted a T visa based on being a victim of human trafficking; several children who won Special Immigrant Juvenile Status as a result of being abused, abandoned, or neglected; several young crime victims and their family members who were granted U Visas; and numerous youth who were granted Deferred Action for Childhood Arrivals. In the past several years, RMIAN’s Children’s Program has seen an exponential increase in its representation of unaccompanied children who fled horrors in their home countries and who are now seeking asylum and other immigration relief before the Denver Immigration Court. In 2015, RMIAN’s Children’s Program directly represented 288 children, conducted 658 intakes and consultations, and referred 205 cases to pro bono attorneys. By providing free legal services to immigrant children, as well as outreach efforts to community partners, RMIAN educates children and their families on the rights and protections to which they are entitled under federal immigration law and works to ensure that Colorado’s communities are safe.

In addition to direct legal services, RMIAN provides community education and training about immigration law, particularly as it relates to individuals in immigration detention and immigrant children. In 2015, RMIAN gave 66 presentations to 2,210 community members.

Please consider making a donation to RMIAN today to help us fulfill our values statement, “We believe that justice for immigrants means justice for all.” Donations may be mailed directly to RMIAN at 3489 West 72nd Avenue, Suite 211, Westminster, CO 80030, or via RMIAN’s website at www.rmian.org. RMIAN is participating in Colorado Gives Day on Tuesday, December 4, 2018.

Colorado Court of Appeals: Anonymous Juror’s Response to Post-Verdict Attorney Evaluation Inadmissible Under CRE 606(b)

The Colorado Court of Appeals issued its opinion in People v. Burke on Thursday, November 15, 2018.

Post-Verdict Juror Attorney EvaluationMotion for New TrialCRE 606(b).

Burke was convicted of burglary. After trial, the jury commissioner sent an attorney performance evaluation form to the jurors. Responses are anonymous. On one of the responses directed to Burke’s counsel, an anonymous juror wrote, “Hard to believe a client when they choose to remain silient [sic].”  Burke moved for a new trial, arguing that at least one juror had disregarded the court’s instructions and based her decision on an impermissible basis. The trial court found the statement was evidence there had been jury misconduct and concluded that CRE 606(b) did not render the statement inadmissible. Without taking additional evidence, the trial court granted the motion for a new trial.

On appeal, the People argued that CRE 606(b) precluded the trial court from considering the anonymous juror’s statement as a basis to grant a new trial. The rule bars admission of any juror testimony or statement to impeach a verdict where the testimony or statement concerns what occurred during jury deliberations, with three exceptions. The anonymous juror’s statement was inadmissible under CRE 606(b) and the exceptions were not applicable. The trial court erred in granting the motion for a new trial.

Burke argued that the trial court’s order should be affirmed because the juror intentionally concealed bias during voir dire. But because the statement was inadmissible, it cannot be used to impeach a verdict on any ground, including a claim that a juror concealed bias during voir dire.

Finally, Burke argued that the court of appeals should recognize a constitutional exception to CRE 606(b) where the juror’s statement reflects a bias against the defendant for the exercise of a fundamental constitutional right. The U.S. Supreme Court’s recent recognition of a limited constitutional exception to Rule 606(b) in a case of racial animus does not support an exception under the circumstances of this case.

The order for a new trial was reversed and the case was remanded for reinstatement of the jury’s verdict.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Grandparent Has No Constitutionally Protected Liberty Interest in Society or Custody of Child

The Colorado Court of Appeals issued its opinion in People in Interest of C.N. on Thursday, November 15, 2018.

Dependency and NeglectGrandparentsFourteenth AmendmentDue ProcessStanding.

In 2015, the Jefferson County Division of Children, Youth, and Families filed a petition in dependency and neglect due to concerns about mother’s mental health. Mother’s newborn was placed in foster care and mother’s parental rights were terminated a year later. A division of the court of appeals affirmed the judgment and a mandate was issued in February 2017. That same month, grandmother filed a motion to intervene in the case and then filed a motion for the child to be placed with her. The juvenile court held a contested hearing on the motion and found it was in the child’s best interest to permanently remain with the foster parents. The court also terminated grandmother’s visitation with the child. The child was adopted by the foster parents in January 2018.

On appeal, grandmother argued that mother did not receive reasonable accommodations to address her mental health issues and the child had a fundamental right of association with grandmother. Also, she asserted that as an intervenor in the case she was a real party interest as to these issues. The court construed grandmother’s arguments to be that she had standing in the case. Grandmother cited no substantive law granting her standing to assert the rights of mother and the child. Further, courts have consistently held that in dependency and neglect appeals parents and intervenors lack standing to assert the rights of other parties. Grandmother lacked standing to raise the issues on appeal regarding mother and the child.

Grandmother also argued the juvenile court lacked subject matter jurisdiction to hear the case because the child never resided or was present in Jefferson County. The allegation that the child was dependent or neglected conferred subject matter jurisdiction with the juvenile court; the question then turned on whether venue was proper. When mother gave birth to the child, she was asked at the hospital where she lived and she provided an address in Arvada, which is within Jefferson County. Thus, venue was proper.

Grandmother further argued that her fundamental associational rights with the child required that she be fully considered for placement of the child and it was error for her not to receive notice of the termination hearing. Grandmother did not have a constitutionally protected liberty interest in the society or custody of the child because she had only limited visitation rights derived from statute and had no existing custodial relationship. Grandmother did not have placement of the child and was not entitled to notice of the termination hearing.

The court also rejected grandmother’s argument that it was error to not allow grandmother to file a petition for the adoption of the child in the dependency and neglect case. There is no such right in the dependency and neglect proceeding, and grandmother was not precluded from timely filing an adoption petition in a separate proceeding. Accordingly, the juvenile court did not err in disallowing the filing of the adoption petition.

The court further rejected grandmother’s argument that the juvenile court erred in terminating her visitation rights with the child. Grandmother’s visitation rights were terminated at the time mother’s parental rights were terminated.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/27/2018

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

United States v. Martinez-Romero

McNelly v. Cline

United States v. McCoy

United States v. Joseph

Davis v. U.S. Government

United States v. Jackson

Rodriguez v. Nationwide Homes, Inc.

United States v. Waldron

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

Colorado Gives: Disability Law Colorado Empowers Individuals and Recognizes the Inherent Value of All People

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Disability Law Colorado (formerly known as The Legal Center for People with Disabilities and Older People) was created in 1976 out of the dream of a small group of parents who came together to secure equal rights for their children with developmental disabilities who were living in state institutions. These parents wanted a better life for their children and believed that all people with disabilities deserved the right to live full and rewarding lives. Disability Law Colorado’s early successes included requiring school districts to pay for children’s education in public schools, allowing children with severe disabilities to attend school for the first time. Disability Law Colorado also succeeded in preventing sterilization of people with developmental disabilities and preventing workplace discrimination against people with disabilities.

In 1977, the governor designated Disability Law Colorado to be Colorado’s Protection and Advocacy (P&A) System for people with developmental disabilities. Today, Disability Law Colorado is recognized as a leader in the National Disability Rights Network made up of Protection and Advocacy programs from all the states and territories.

For Colorado Gives Day, Disability Law Colorado has a $15,000 fundraising goal. By donating through Colorado Gives, your gift will go further thanks to a $1 million dollar incentive fund. Click here to donate.