August 25, 2019

Archives for February 2019

Finding Your True Calling

The Summoner in Chaucer’s The Canterbury Tales,
Ellesmere MSS, circa 1400

According to the Online Etymology Dictionary, the notion of “calling” entered the English language around Chaucer’s time, originating from Old Norse kalla — “to cry loudly, summon in a loud voice; name, call by name.” A century and a half later, in the 1550’s, “calling” acquired the connotation of “vocation, profession, trade, occupation.” Meanwhile, “vocation” took on the meaning of “spiritual calling,” from Old French vocacio, meaning “call, consecration; calling, profession,” and Latin vocationem — “a calling, a being called” to “one’s occupation or profession.”

Put calling and vocation together, and you’ve got an appealing notion: that you would be summoned by name to a specific occupation as a matter of divine destiny: “Here, do this, it’s what you were born to do.”

What do you suppose are the odds? First, how many workers are there? The world today has about 7.7 billion people. A couple years ago, when there were about 7.2 billion, this comment string on Quora said that about 5.0 billion around the world had jobs.

Okay, that’s total jobs, but what about different jobs? says there are 40,000 careers. puts the number at 12,000. The U.S. Bureau of Labor Statistics tracks 820+ occupations. zeroed in on 31 jobs in 2019 that fit “almost every type of person.” says there are 13 most common flex-work jobs. listed ten most popular jobs for 2018. Business Insider listed seven hot jobs for 2018 and 2019. And on it goes.

That’s not particularly helpful, so let’s just play with some numbers. Suppose there are 40,000 different jobs distributed among 5.0 billion workers. If every one of them is a called vocation, then each represents 0.000008 of the total — eight in a million. That isn’t the same as the odds of it happening, but the chances seem pretty low, which we know experientially anyway.

No wonder Chaucer didn’t like the Summoner.[1]

Yet, despite the odds, we still hold onto the idea:

Amy Wrzesniewski, a professor at Yale School of Management and a leading scholar on meaning at work, told me that she senses a great deal of anxiety among her students and clients. ‘They think their calling is under a rock,’ she said, ‘and that if they turn over enough rocks, they will find it.’ If they do not find their one true calling, she went on to say, they feel like something is missing from their lives and that they will never find a job that will satisfy them. And yet only about one third to one half of people whom researchers have surveyed see their work as a calling. Does that mean the rest will not find meaning and purpose in their careers?

The Power of Meaning: Crafting a Life That Matters, Emily Esfahani Smith

“[O]ne third to one half of people whom researchers have surveyed see their work as a calling.” Does that seem high to anyone else? Does that mean “the rest [who] will not find meaning and purpose in their careers” should give up on the dream and follow advice like the following?

It is much easier to suppress a first desire than to satisfy those that follow. Benjamin Franklin

Freedom is not procured by a full enjoyment of what is desired, but by controlling the desire. Epictetus

The power of unfulfilled desires is the root of all man’s slavery. Paramahansa Yogananda

Maybe, but there’s a pervasive feeling among the Left Behind that they’re missing out big time. For them, cognitive neuroscientist Christian Jarrett offers some perspective from academic research:

  • There’s a difference between a harmonious and obsessive calling. The former gives you vitality, better work performance, flow, and positive mood. The latter is also energizing, but leads to anxiety and burnout.
  • As the quote above said, it’s better not to have a calling than to have one and let it go unanswered.
  • The work you already do might become a calling if you invest enough in it. But that doesn’t mean you should just Grit it out — so says U of Penn psychologist Angela Duckworth, who wrote the book on the topic. Don’t sit and wait for revelation, she says, instead get out and take on some new challenges — and besides, you might find your source of energy and determination elsewhere than in your job.

For more help, this Forbes article provides a daunting list of twelve things it takes to have a calling and not just a job. The writer also says this:

Years ago, I read a very thought-provoking article by Michael Lewis . . . about the difference between a calling and a job. He had some powerful insights. What struck me most were two intriguing concepts:

‘There’s a direct relationship between risk and reward. A fantastically rewarding career usually requires you to take fantastic risks.’

‘A calling is an activity that you find so compelling that you wind up organizing your entire self around it — often to the detriment of your life outside of it.’

Ah… now I think we might be onto something. We’ll explore Lewis’s ideas further next time.

[1] A SUMMONER was there with us in that place/ That had a fire-red cherubinnè’s face/ For saucèfleme he was with eyen narrow/ And hot he was and lecherous as a sparrow./ With scal èd browès black, and pilèd beard,/ Of his viság è children were afeared./ There n’as quicksilver, litharge nor brimstone,/ was no Boras, ceruse, nor oil of tartar none,/ Nor ointèment that wouldè cleanse and bite/ That him might helpèn of his whelkès white,/ Nor of the knobbès sitting on his cheeks./ Well loved he garlic, onion and eke leeks. / And for to drinkèn strong wine red as blood;/ Then would he speak and cry as he were wood.

If you like Kevin Rhodes’s posts, you might enjoy his new, which focuses on several themes that have appeared in this blog over the years, such as how belief creates culture and culture creates behavior, and why growth and change are difficult but doable. You can also follow on Facebook.

Colorado Court of Appeals: Involuntary Short-term Mental Health Commitment Is Not Equivalent to Court Order

The Colorado Court of Appeals issued its opinion in Interest of Ray v. People on Thursday, February 21, 2019.

Mental Health—Certification for Short-Term Treatment—Physician—National Instant Criminal Background Check System—Firearm Prohibitions—Court Order.

Ray voluntarily sought mental health treatment from a hospital. After he was admitted, a physician certified Ray for involuntary short-term mental health treatment under C.R.S. § 27-65-107, finding that he was a danger to himself or others and would discontinue mental health treatment absent such a certification. That certification caused Colorado officials to report Ray to the National Instant Criminal Background Check System (NICS) as a person subject to federal firearm prohibitions. The certifying physician terminated the mental health certification days after it was entered, and Ray was discharged from the hospital. Ray petitioned the probate court for removal from the NICS. The probate court denied the petition.

On appeal, Ray argued that because he was involuntarily certified by a physician, rather than a court, Colorado officials should not have reported his certification to the NICS. Colorado law requires certain persons and entities to make NICS reports for persons with respect to whom a court has entered an order for involuntary certification for short-term mental health treatment. The plain meaning of the term “court order” does not encompass certification by a professional person. Therefore, the certification made by the physician does not meet the plain definition of a court order.

The order was reversed and the case was remanded for the probate court and the parties to take reasonable steps to cause any record of Ray’s certification submitted by them under CRS § 13-9-123(1)(c) to be rescinded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Suddenly Hitting Officer’s Motorcycle Does Not Constitute “Threat”

The Colorado Court of Appeals issued its opinion in People v. Denhartog on Thursday, February 21, 2019.

Criminal Law—First Degree Assault of a Peace Officer—Threaten—Prior Acts Evidence—Merger—Lesser Included Offense—Prosecutorial Misconduct.

A motorcycle patrol officer observed defendant speeding and pulled him over. The officer parked about 12 feet behind defendant’s vehicle. As the officer prepared to dismount from his bike, defendant suddenly reversed his vehicle and drove into the motorcycle, pushing the bike backward and causing the officer to fall and sustain minor injuries. Defendant left the scene and broke into an unoccupied apartment, where he damaged the tenant’s belongings and set fire to contraband he was carrying. Defendant was charged with 15 felony, misdemeanor, and traffic offenses. As relevant here, the jury convicted him of first degree assault of a peace officer, two counts of second degree assault, vehicular eluding, first degree criminal trespass, and second degree burglary.

On appeal, defendant argued that the evidence was insufficient to support his conviction for first degree assault because the prosecution failed to prove he used the vehicle to threaten the officer. “Threaten” means to express a purpose or intent to cause harm or injury. To obtain a conviction for first degree assault of a peace officer, the prosecution had to prove that, by use of a deadly weapon, defendant expressed a purpose or intent to cause injury or harm to the officer or the officer’s property. Here, the act of suddenly hitting the officer’s motorcycle, without more, did not constitute a threat. Accordingly, the evidence was insufficient to sustain the first degree assault conviction.

Next, defendant contended that the trial court erred in admitting evidence under CRE 404(b) of his prior assault of a peace officer. The prior and current incidents were similar enough that the prior act evidence was admissible for the nonpropensity purpose of rebutting defendant’s defense that his conduct was accidental rather than intentional. Thus, the evidence was relevant to establish defendant’s intent to commit assault. The district court did not abuse its discretion.
Defendant also contended that his assault and eluding convictions should be reversed due to prosecutorial misconduct during closing argument. However, the prosecutor did not err in commenting on the strength of defense counsel’s arguments and using the facts in evidence to support his argument. Although the prosecutor improperly appealed to the emotions of the jury and misstated one piece of evidence during his closing argument, the two instances of misconduct were not egregious and did not warrant reversal.

Defendant further contended, the People conceded, and the court of appeals agreed that his two convictions for second degree assault must merge for multiplicity.

Lastly, defendant contended that first degree criminal trespass is a lesser included offense of second degree burglary and therefore these convictions must merge. However, the supreme court has expressly held that first degree criminal trespass is not a lesser included offense of second degree burglary.

The case was remanded to (1) vacate the conviction and sentence for first degree assault and for entry of a judgment of acquittal on that charge; (2) merge the convictions for second degree assault and vacate the conviction entered under C.R.S. § 18-3-203(1)(c); and (3) resentence defendant. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/27/2019

On Wednesday, February 27, 2019, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Lopez v. Stanley Black & Decker

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

Colorado Court of Appeals: Students and Teachers in Youth Corrections Classroom “Members of the Public” for Purposes of Public Indecency Statute

The Colorado Court of Appeals issued its opinion in People in Interest of D.C. on Thursday, February 21, 2019.

Juvenile Law—Delinquency—Public Indecency—Members of the Public.

D.C. and E.L. were committed to the Division of Youth Corrections (DYC). During their DYC science class, D.C. exposed one of his testicles to E.L. As a result, D.C. was adjudicated delinquent for committing an act that, if committed by an adult, would constitute public indecency.

On appeal, D.C. argued that insufficient evidence supported the adjudication because the prosecution failed to establish that the DYC classroom in which D.C. exposed his testicle was a “public place” under the public indecency statute.A person commits public indecency by knowingly exposing his genitals to the view of another under circumstances that are likely to cause affront or alarm “in a public place or [in a place] where the conduct may reasonably be expected to be viewed by members of the public.” Here, other students and a teacher were present when D.C. exposed himself. Therefore, sufficient evidence established that D.C. exposed his genitals in a public place under the indecency statute.

The adjudication was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Admission of Blind Expert Testimony Not Harmless Where Issues Irrelevant to Facts of Case

The Colorado Court of Appeals issued its opinion in People v. Cooper on Thursday, February 21, 2019.

Criminal Law—Evidence—“Blind” Expert Testimony—Relevance—Prejudice—Unanimity.

Cooper and L.K. were in an intimate relationship and lived together. They had a physical altercation that resulted in Cooper being charged with, among other things, third degree assault and harassment. At trial, over Cooper’s repeated objections, the prosecution presented extensive testimony from a “blind” expert witness about the characteristics of domestic violence relationships and the “power and control wheel,” a tool developed purportedly to explain how an abusive partner can use power and control to manipulate a relationship. A jury convicted Cooper of third degree assault and harassment.

On appeal, Cooper asserted that the trial court erred in admitting the blind expert witness testimony both on reliability and relevance grounds. Expert testimony should be admitted only when the expert’s opinions will help the factfinder. A blind or “cold” expert knows little or nothing about the facts of a particular case, often has not met the victim, and has not performed any forensic or psychological examination of the victim (or the defendant). Here, no evidence presented to the jury proved or suggested that before the charged incident Cooper had assaulted L.K., had physically or non-physically abused L.K., or had exercised improper control over L.K. physically, emotionally, or economically. The only way the jury could have found there was a pattern of abuse was from the testimony of the blind expert, who purportedly knew nothing about the facts of the case. There was no record evidence that related to the vast majority of the blind expert’s opinions, and the trial court abused its discretion in admitting this testimony. This error was not harmless.

Cooper also contended that the trial court erred in not instructing the jury on the requirement of unanimity. Here, the evidence “does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed” regarding the third degree assault charge. Therefore, Cooper was not entitled to a unanimity instruction.
The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/26/2019

On Tuesday, February 26, 2019, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

Spradley v. LeFlore County Detention Ctr

United States v. Stubbs

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

Colorado Supreme Court: Unenforceable 1909 Water Decree Fails to Set Forth Indicia of Enforceability, Including Appropriation Date, Priority Number, and Quantification Information

The Colorado Supreme Court issued its opinion in Dill v. Yamasaki Ring, LLC on Monday, February 25, 2019.

Water Law—Adjudicated Water Rights—Indicia of Enforceability. 

The supreme court considered whether a 1909 water decree adjudicates a water right in certain springs. Because the decree failed to set forth required indicia of enforceability—including an appropriation date, a priority number, and quantification information—with respect to the springs, the court answered the question in the negative. A decree must measure, limit, and define both the nature and extent of a water right. The priority, the location of diversion at the supply’s source, and the amount of water for application to a beneficial use are all essential elements of the appropriative water right. Of these, priority is the most important stick in the water rights bundle because priority is a function of appropriation and adjudication; indeed, the purpose of adjudication is to fix the priority of a water right. 

As the water court concluded, the 1909 decree clearly and unambiguously sets forth an unenforceable entitlement to receive and conduct water from the springs. Without indicia of enforceability, and in particular a priority number, the 1909 decree cannot be deemed to adjudicate a water right in the springs that can be enforced and administered. Therefore, the court affirmed the water court’s judgment.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/25/2019

On Monday, February 25, 2019, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Milner v. Mares

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

Colorado Supreme Court: Announcement Sheet, 2/25/2019

On Monday, February 25, 2019, the Colorado Supreme Court issued one published opinion.

Dill v. Yamasaki Ring, LLC

The summary of this case is 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, 2/22/2019

On Friday, February 22, 2019, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Jiricko v. Frankenburg Jensen Law Firm

Hardeman v. Smith

Gaedeke Holdings VII v. Baker

United States v. Thornbrugh

Linton v. CIR

Patterson v. Jefferson County

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

Governor Polis Signs First Bills of 2019 Legislative Session Into Law

On Wednesday, February 20, 2019, Governor Polis signed seven bills into law. These bills were the first bills signed during this 2019 legislative session. The bills signed Wednesday are summarized here.

  • HB 19-1005: “Concerning an Income Tax Credit for Certain Early Childhood Educators,” by Reps. Janet Buckner & James Wilson and Sens. Nancy Todd & Kevin Priola. The bill provides an income tax credit to eligible early childhood educators who hold an early childhood professional credential and who, for at least 6 months of the taxable year, are either the head of a family child care home or are employed with an eligible early childhood education program or a family child care home. 
  • HB 19-1015: “Concerning the Recreation of the Colorado Water Institute,” by Rep. Jeni James Arndt and Sen. Joann Ginal. The Colorado water institute was created in 1981 and automatically repealed in 2017. The bill recreates the institute.
  • SB 19-018: “Concerning the Age Requirement to Drive a Commercial Vehicle in Interstate Commerce,” by Sens. Ray Scott & Vicki Marble and Reps. Barbara McLachlan & Lori Saine. The bill authorizes the department of revenue to adopt rules authorizing a person who is at least 18 years of age but under 21 years of age to be licensed to drive a commercial vehicle in interstate commerce if the person holds a commercial driver’s license and operation of a commercial vehicle in interstate commerce by a person in that age range is permitted under federal law.
  • SB 19-021: “Concerning Eliminating the Requirement that the State Board of Health Approve the Retention of Counsel in Certain Circumstances,” by Sen. Dominick Moreno and Rep. Hugh McKean. The bill removes the requirement that the State Board of Health approve the retention of counsel when the executive director of the Department of Public Health and Environment seeks to bring an action to enjoin, prosecute, or enforce public health laws or standards and the local district attorney fails to act.
  • SB 19-028: “Concerning the Authority of Licensing Authorities to Continue to Issue Certain Fermented Malt Beverage Retail Licenses in Rural Areas,” by Sens. Chris Holbert & Jeff Bridges and Reps. Hugh McKean & Julie McCluskie. Recent legislation (Senate Bill 18-243) terminated the licensing of retailers to sell fermented malt beverages (formerly known as “3.2 beer” but now including all beer) for consumption on and off a licensed premises, requiring the holder of such a license to combine its renewal application with an application to convert the license into either a license to sell for consumption on the licensed premises or a license to sell for consumption off the licensed premises.The bill lifts the requirement to convert an existing license, and reinstates the availability of new licenses, in specified areas with low populations.
  • SB 19-045: “Concerning Clarifying that Members of the Radiation Advisory Committee are Reimbursed for Expenses Incurred for Authorized Business of the Committee,” by Sen. Dominick Moreno and Rep. Edie Hooten. The bill clarifies that members of the radiation advisory committee are reimbursed for necessary and actual expenses incurred in attendance at meetings or for authorized business of the committee.
  • SB 19-058: “Concerning the Enactment of the Colorado Revised Statutes 2018 as the Positive and Statutory Law of the State of Colorado,” by Sen. Pete Lee and Rep. Leslie Herod. This bill enacts the softbound volumes of the Colorado Revised Statutes 2018 and the Special Supplement 2018 as the positive and statutory law of the state of Colorado and establishes the effective date of said publications.

For more information about the signed bills, click here.