December 13, 2018

Archives for December 2018

Colorado Supreme Court: Restitution Not Available for Losses for Which the Defendant Was Not Convicted

The Colorado Supreme Court issued its opinion in Cowan v. People on Monday, December 10, 2018.

Sentencing—Restitution—Compensable Losses.
The supreme court held that Colorado’s restitution statutes do not allow trial courts to order restitution for pecuniary losses caused by conduct that formed the basis of a charge of which the defendant has been acquitted. Even where the defendant has been convicted of a separate charge, this state’s restitution statutes do not permit a trial court to impose restitution for losses suffered as a result of the acquitted conduct. The prosecution’s contrary construction would both violate well-settled rules of statutory interpretation and run afoul of the Fourteenth Amendment’s guarantee of procedural due process. Because the court of appeals affirmed the order requiring defendant to pay restitution for losses caused by conduct supporting an acquitted charge, the supreme court reversed that court’s decision. The matter was remanded to the court of appeals for further proceedings consistent with this opinion.


Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Prejudgment Interest Applies in Garnishment Proceedings

The Colorado Supreme Court issued its opinion in Thompson v. Catlin Insurance Co. on Monday, December 10, 2018.

Appellate Mandate—Garnishment—Prejudgment Interest.
At issue in this garnishment proceeding was the amount of insurance proceeds owed to petitioners. The court of appeals grappled with the amount of this debt on four separate occasions. In Thompson v. United Securities Alliance Inc. (Thompson IV), 2016 COA 128 ¶ 27, __P.3d __, a division of the court of appeals upheld the district court’s determination of attorney fees and costs that the insurance company may deduct from the liability limit under its policy. It is this decision in Thompson IV about fees and costs that the supreme court reviewed here. First, it addressed whether the Thompson IV division erred when it upheld the district court’s decision to consider new evidence on remand from Thompson v. United Securities Alliance, Inc. (Thompson III), No. 13CA2037 (Colo. App. Oct. 16, 2014). Because the Thompson IV division reasonably construed the mandate issued by the Thompson III division, the supreme court perceived no error. Second, it addressed whether the Thompson IV division erred when it held that petitioners are not entitled to prejudgment interest in a garnishment proceeding. The court concluded that the division erred. Petitioners are entitled to prejudgment interest under C.R.S. § 5-12-102. Accordingly, as to the first issue, the court of appeals’ judgment was affirmed. As to the second, it was reversed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/11/2018

On Tuesday, December 11, 2018, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

United States v. Kelley

Turner Brothers, Inc. v. Conley

Jones v. Office of Administrative Hearings

Pemberton v. Patton

United States v. Rodriguez-Arroyo

Vigil v. Commissioner, SSA

United States v. Norwood

Lopez v. Sterling Correctional Facility

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

Tenth Circuit: Unpublished Opinions, 12/10/2018

On Monday, December 10, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Williams

Jackson v. Bryant

Crosby v. Fox

Marshall v. Harvanek

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

Colorado Supreme Court: Announcement Sheet, 12/10/2018

On Monday, December 10, 2018, the Colorado Supreme Court issued two published opinions.

Thompson v. Catlin Insurance Co.

Cowen v. People

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: Unnecessary Presence of Parents at Initial Consultation Voids Attorney-Client Privilege

The Colorado Supreme Court issued its opinion in In re Fox v. Alfini on Monday, December 3, 2018.

In this original proceeding pursuant to C.A.R. 21, the court reviews the district court’s order compelling production of a recording of the Petitioner’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that the Petitioner had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court’s ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Admission of “Overkill” Theory Without Specific Findings Was Error

The Colorado Supreme Court issued its opinion in Ruibal v. People on Monday, December 3, 2018. 

Ruibal petitioned for review of the court of appeals’ judgment affirming hisconviction for second degree murder. Over defense objection and without taking evidence or making any findings as to reliability, the trial court admitted expert testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a formal term describing multiple injuries focused on one area of the victim’s body, which includes blows about the head and face that are numerous and extensive, indicating that the assailant likely had either a real or perceived emotional attachment to the victim. Relying on case law from several other jurisdictions, a treatise dealing with related kinds of injuries, and the witness’s own experience with autopsies involving similar injuries, the court of appeals concluded that the expert opinion was sufficiently reliable and that the trial court had implicitly found as much by granting the prosecution’s proffer.
The supreme court holds that because the trial court made no specific finding that the theory of “overkill” espoused by the witness was reliable, nor was the reliability of that theory either supported by evidence in the record or already accepted in this jurisdiction, its admission amounted to an abuse of discretion. Because there was, however, overwhelming evidence of the defendant’s guilt quite apart from the expert testimony, the error was necessarily harmless. Accordingly, the judgment of the court of appeals is affirmed.

Summary provided courtesy of Colorado Lawyer.

10th Circuit: Unpublished Opinions, 12/7/2018

On Friday, December 7, 2018, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Layng v. Rael

Singh v. Sessions

Dailey v. Hecht

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

Basic Income on the Res

Thomas Sowell has a platinum resume: Marine Corps war vet, bachelor’s Harvard, master’s Columbia, Ph.D. U of Chicago, professor at Cornell and UCLA, Urban Institute and the Hoover Institute at Stanford, books, articles…. You get the point: when he talks economic and social policy, people listen.

The people at The Institute for Family Studies (IFS) were listening when they published a blog post earlier this year entitled “What We Can Learn From Native Americans About a Universal Basic Income.” The article describes the Seneca tribe’s practice of distributing casino money to its members, and focuses on the particularly disastrous provisions pertaining to the money for minors:

Half the money for children under 18 is given to their parents, and the other half is put into a trust. When a Seneca youth turns 18 and can show that he or she has graduated from high school or earned a GED, he or she receives a lump sum of $30,000. Those who don’t get a high-school degree have to wait until they’re 21 to receive the money.

Government officials and other members of the nation tell me that the best thing most young adults do with this money is to buy a new truck. These are kids who have never had very much before; so when someone hands them a huge check, they clearly don’t know what to do. Store owners report that young people will come in to buy candy, handing $50 or $100 without expecting any change. These young people seem to have no concept of saving or investing.

I used to practice estate planning, and need to point out that the Seneca approach to minor beneficiaries unfortunately borrows the worst kind of legislation drafting laziness from intestacy law, uniform gifts to minors acts, and similar laws involving minors and money. Their experience therefore has nothing to do with UBI specifically. Of course dropping a wad of cash on an unprepared 18 or 21 year-old is a dumb idea. Of course the kids “have no concept of saving or investing.” (Like the rest of us do.) Moving on, the article cites more disasters:

The money “is almost never saved for education.

“Despite a vast apparatus to help Seneca members set up businesses, almost no one starts one.

“Unless people are employed by the tribe (either through the casino or in tribal government), they are largely unemployed.

“Theft is also a problem. One official told me that they have had reports of elder abuse where children and grandchildren were stealing payments from older members of the tribe.

“The results of all this can be seen in the poverty rates for the Senecas, which have continued to rise. Their territory is divided into two reservations. As of 2011, the Allegany reservation poverty rate was 33.3 percent and the Cattaraugus reservation poverty rate was 64.9 percent, the highest in Cattaraugus County. During the first decade that the casino was operating, the poverty rate in Cattaraugus County, which includes part of the Seneca Territory, increased from 12.8 in 2000 to 18.7 in 2011.”

Finally, the article ends by citing Thomas Sowell:

Writing about the concept of a Universal Basic Income last year, Thomas Sowell summed up the situation: ‘The track record of divorcing personal rewards from personal contributions hardly justifies more of the same, even when it is in a more sophisticated form. Sophisticated social disaster is still disaster—and we already have too much of that.’

The Sowell article cited by the IFS blogger was “Is Personal Responsibility Obsolete?” (Investor’s Business Daily, June 6, 2016). It begins this way:

Among the many disturbing signs of our times are conservatives and libertarians of high intelligence and high principles who are advocating government programs that relieve people of the necessity of working to provide their own livelihoods.

Generations ago, both religious people and socialists were agreed on the proposition that ‘he who does not work, neither shall he eat.’ Both would come to the aid of those unable to work. But the idea that people who simply choose not to work should be supported by money taken from those who are working was rejected across the ideological spectrum.

And so we see the standard anti-UBI fightin’ words:

“divorcing personal reward from personal contributions”

“government programs that relieve people of the necessity of working to provide their own livelihoods”

“people who simply choose not to work”

“money taken from those who are working”

I confess, I can’t help but wonder what people who say those things think they would do with UBI money. Again moving along….

Other tribes also distribute casino money. The following is from What Happens When the Poor Receive a Stipend?”, published by The New York Times as part of a 2017 series on economic inequality called “The Great Divide.”

Scientists interested in the link between poverty and mental health, however, often face a more fundamental problem: a relative dearth of experiments that test and compare potential interventions.

So when, in 1996, the Eastern Band of Cherokee Indians in North Carolina’s Great Smoky Mountains opened a casino, Jane Costello, an epidemiologist at Duke University Medical School, saw an opportunity. The tribe elected to distribute a proportion of the profits equally among its 8,000 members. Professor Costello wondered whether the extra money would change psychiatric outcomes among poor Cherokee families.

Same idea, different tribe. How’d they do? We’ll find out next time.

 

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, 12/6/2018

On Thursday, December 6, 2018, the Colorado Court of Appeals issued no published opinion and 34 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, 12/4/2018

On Tuesday, December 4, 2018, the Tenth Circuit Court of Appeals issued no published opinions and eight unpublished opinions.

Vallina v. Petrescu

United States v. Marker

Capital Development Associates LLC v. Thigpen

United States v. Smith

United States v. Angulo-Lopez

Carr v. El Paso County

Bustos-Chaves v. Hansen

Estate of Vallina v. Teller County Sheriff’s Office

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

Matthew D. Grove Appointed to Colorado Court of Appeals

On Thursday, November 29, 2018, Governor Hickenlooper appointed Matthew D. Grove to the Colorado Court of Appeals. Grove will fill a vacancy created by the retirement of Chief Judge Alan M. Loeb, effective December 28, 2018.

Currently, Grove is a Senior Assistant Attorney General in the Public Officials Unit of the State Services Section of the Colorado Attorney General’s Office. He is also an Assistant Solicitor General for the Public Officials Unit, where he has served since 2009. Prior to his work at the Colorado Attorney General’s Office, Grove was an attorney with Bjork Lindley Little PC from 2007 to 2009, an Assistant Attorney General with the Appellate Division of the Colorado Attorney General’s Office from 2003 to 2007, and a law clerk to Hon. Nathan B. Coats of the Colorado Supreme Court. Grove received his law degree from the University of Colorado School of Law and his undergraduate degree from Duke University.

For more information about the appointment, click here.