Legal Connection Blog Updates https://cbaclelegalconnection.com/?p=40502 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/dbkaogVPp4s/ Case Law 10th Circuit business law Ponzi scheme Securities and Exchange Commission securities law Tenth Circuit: SEC Asserted Sufficient Evidence that Defendants Were Operating Ponzi Scheme The Tenth Circuit Court of Appeals issued its opinion in Securities and Exchange Commission v. Traffic Monsoon, LLC on Thursday, January 24, 2019. Tue, 26 Mar 2019 16:00:57 Z https://cbaclelegalconnection.com/2019/03/tenth-circuit-sec-asserted-sufficient-evidence-that-defendants-were-operating-ponzi-scheme/#respond DU Law Student <div class="pf-content"> <p>The Tenth Circuit Court of Appeals issued its opinion in <em><a href="https://www.ca10.uscourts.gov/opinions/17/17-4059.pdf" target="_blank" rel="noreferrer noopener" aria-label="Securities and Exchange Commission v. Traffic Monsoon, LLC (opens in a new tab)">Securities and Exchange Commission v. Traffic Monsoon, LLC</a></em> on Thursday, January 24, 2019.</p> <p>The district court ordered the appointment of a receiver and granted a preliminary injunction enjoining Defendants from continuing business. On interlocutory appeal, the Tenth Circuit Court of Appeals affirmed the district court’s preliminary rulings. </p> <p>Traffic Monsoon is a Utah-based company that allegedly makes most of its money selling internet advertising packages to its members. Members who purchase the “Adpack” package also qualify to share in Traffic Monsoon’s revenue. Approximately 90% of Traffic Monsoon’s members reside outside the United States, and presumably bought the Adpacks while in their home countries.</p> <p>The SEC alleged that the sale of the Adpacks constituted an illegal Ponzi scheme in violation of § 10(b) of the Exchange Act and § 17 of the Securities Act. The SEC asserted that, regardless of where the transactions had occurred, the Dodd-Frank amendments allowed the SEC to pursue its claims based on significant, allegedly wrongful conduct in the United States.</p> <p>The SEC obtained from the district court an order for the appointment of a receiver over Defendants’ business and assets, and a preliminary injunction enjoining Defendants from continuing business. On interlocutory appeal, Defendants challenged the district court’s preliminary rulings on three theories.</p> <p>First, Defendants argued that the antifraud provisions of the federal securities acts do not reach Traffic Monsoon’s sales of, or offers to sell, Adpacks to people living outside the U.S., which amounted to 90% of Traffic Monsoon’s Adpack sales. </p> <p>The Court noted that while the originally enacted federal securities acts did not address the extraterritorial reach of the acts’ antifraud provisions, courts had historically applied the acts’ antifraud provisions extraterritorially when the “conduct-and-effects” test was satisfied, and treated the issue as a matter of subject-matter jurisdiction. However, <em>Morrison v. National Australia Bank </em>limited the substantive scope of the federal securities laws to U.S. based transactions, and held that the extraterritorial extent of U.S. law is not a jurisdictional issue, instead the issue goes to the substance of the securities laws. </p> <p>The Court noted that the initial versions of the Dodd-Frank amendments had been drafted before the <em>Morrison</em> decision, and while Congress is deemed to be familiar with Supreme Court precedent when it enacts legislation, in the instant case it was more reasonable to assume that <em>Morrison</em> was issued too late in the legislative process to reasonably permit Congress to react to it.</p> <p>The Court concluded that Congress had intended the Dodd-Frank amendments to allow the SEC and the United States to sue based on conduct or effects within the United States, regardless of where the securities transactions occurred. In other words, the SEC may bring an enforcement action based on allegedly foreign securities transactions involving non-U.S. residents if sufficient conduct occurred in the United States. The Court therefore applied the “conduct-and-effects” test, and concluded that the SEC’s allegations satisfied the test. Defendants had operated in the United States while allegedly defrauding foreign investors. </p> <p>Second, Defendants argued that Adpacks are not “securities” and are therefore not subject to federal securities laws. The Court first found that the Adpack is an investment because it offered its purchasers an opportunity to share in Traffic Monsoon’s revenue in addition to the purchased advertising service, and the revenue sharing was in fact the primary drive for purchasing the Adpack. Next, the Court found that the Adpack is a common enterprise, because the shared revenue was generated from the sale of Traffic Monsoon’s advertising services. Finally, the Court found that the revenue Adpack purchasers share is derived almost exclusively from Defendants’ efforts to sell advertising services. The Court therefore concluded that the Adpacks qualified as securities because they met the three-part test for investment contracts.</p> <p>Finally, Defendants argued that the SEC could not show that Defendants engaged in a fraudulent securities scheme with the requisite scienter. The Court rejected this argument, and found that the SEC had presented sufficient evidence that Defendants were operating an illegal Ponzi scheme with the required scienter, as Defendant’s were operating a Ponzi scheme, which is inherently deceptive because it gives the false appearance of profitability by using money from new investors to generate returns for earlier investors. </p> <p>In a concurring opinion, Justice Briscoe rejected the premise that the Adpacks were foreign sales outside of the U.S., abating the need to address whether the antifraud provisions of the securities act apply extraterritorially. Instead, the SEC’s allegations satisfied <em>Morrison’s</em> transactional test, because Defendants had sold their products over the internet and had incurred irrevocable liability in the United States to deliver the products to the buyers, wherever located. Therefore, the SEC had sufficiently established that the Defendants sold securities in the United States in violation of the antifraud provisions of the securities acts. </p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/dbkaogVPp4s" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/tenth-circuit-sec-asserted-sufficient-evidence-that-defendants-were-operating-ponzi-scheme/feed/ 0 https://cbaclelegalconnection.com/2019/03/tenth-circuit-sec-asserted-sufficient-evidence-that-defendants-were-operating-ponzi-scheme/ 2019-03-26 16:00 +00:00 2019-03-26 10:00 -06:00 https://cbaclelegalconnection.com/?p=40500 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/87HkaMewnNw/ Case Law 10th Circuit criminal law habeas corpus prosecutorial misconduct Tenth Circuit: Prejudicial Nature of Prosecutor’s Improper Conduct Did Not Significantly Affect Outcome of Proceedings The Tenth Circuit Court of Appeals issued its opinion in Simpson v. Carpenter on Thursday, December 27, 2018. Tue, 26 Mar 2019 15:40:29 Z https://cbaclelegalconnection.com/2019/03/tenth-circuit-prejudicial-nature-of-prosecutors-improper-conduct-did-not-significantly-affect-outcome-of-proceedings/#respond DU Law Student <div class="pf-content"> <p>The Tenth Circuit Court of Appeals issued its opinion in <em><a href="https://www.ca10.uscourts.gov/opinions/16/16-6191.pdf" target="_blank" rel="noreferrer noopener" aria-label="Simpson v. Carpenter (opens in a new tab)">Simpson v. Carpenter</a> </em>on Thursday, December 27, 2018.</p> <p>Oklahoma prisoner Kendrick Simpson sought federal habeas relief from his death sentence for two counts of first-degree murder. The district court denied Simpson’s petition and on appeal, the Court of Appeals found no reversible error and affirmed. </p> <p>Following an altercation in a night club, Mr. Simpson had fired multiple shots at a moving vehicle containing three passengers. Two of the three passenger victims died at the scene from their gunshot wounds. The State of Oklahoma charged Mr. Simpson with the first-degree murders of the two passenger victims, and with discharging a firearm with intent to kill the third passenger. The prosecution sought a penalty of death for each murder.</p> <p>The jury convicted Mr. Simpson of two counts of first-degree murder, and sentenced him to death. Mr. Simpson appealed his convictions and sentences, and sought federal post-conviction relief. The district court granted a Certificate of Appealability (“COA”) on two of Mr. Simpson’s eighteen grounds for relief, and the Tenth Circuit subsequently granted a COA on five additional issues.</p> <p>Mr. Simpson first asserted he was entitled to federal habeas relief because the trial court erroneously excluded expert testimony regarding his PTSD diagnosis and dissociative episodes. Mr. Simpson claimed the testimony was necessary to support the defense that he was incapable of forming the specific intent necessary to commit first-degree murder, and that the Oklahoma Criminal Court of Appeals’ (“OCCA”) determination that the PTSD evidence was irrelevant was both contrary to and an unreasonable application of clearly established federal law. The State countered that the claims were unexhausted, and therefore Mr. Simpson was barred from presenting the arguments on appeal. </p> <p>The Court rejected the State’s argument that Mr. Simpson’s PTSD claim was unexhausted, concluding instead that although his claim was now more refined, the core of his argument was the same. However, his argument with respect to the dissociative episodes resulting from his PTSD were new. The Court therefore found that Mr. Simpson had properly exhausted his PTSD argument, but that he had failed to properly preserve his argument concerning his dissociative episodes. Turning to the merits, the Court found that the expert testimony regarding Mr. Simpson’s PTSD diagnosis was devoid of any detail on the impact Mr. Simpson’s PTSD had on his ability to form the intent to kill as well as the interactive effects of PTSD and intoxicants. The Court therefore found that the OCCA was reasonable in its determination that the expert testimony regarding Mr. Simpson’s PTSD was irrelevant.</p> <p>Mr. Simpson next asserted an alleged <em>Brady</em> violation by the prosecutor’s withholding of impeachment evidence as to a jailhouse informant, which he argued was critical to support the Continuing Threat Aggravator. The OCCA had ruled Mr. Simpson’s <em>Brady</em> claim had been waived because Mr. Simpson did not present his <em>Brady </em>claim until his second application for post-conviction relief, in violation of state procedural rules. </p> <p>Focusing on whether Mr. Simpson was prejudiced by the suppressed evidence, the Court found that the State’s other evidence presented at trial was strong enough to support the Continuing Aggravating Threat factor, even without their reliance on the testimony of the jailhouse informant. The Court concluded that there was no reasonable probability that the jury would have returned a different verdict had the testimony been impeached, therefore the evidence was not material under <em>Brady</em>, and Mr. Simpson could not demonstrate prejudice. Accordingly, the Court held Mr. Simpson’s <em>Brady</em> claim was precluded from federal habeas review, as he could not establish both cause and prejudice as necessary to overcome the state procedural bar.&nbsp;&nbsp;&nbsp;&nbsp; </p> <p>Mr. Simpson also claimed that the trial court’s jury instructions and the prosecutor’s improper arguments unconstitutionally limited the jury’s consideration of mitigating evidence. The Court rejected Mr. Simpson’s argument as to the jury instructions, citing its decision in <em>Hanson v. Sherrod</em>,which addressed the constitutionality of the same instructions. The Court went on to explain that because the jury instructions permitted the jury to consider mitigating circumstances other than those enumerated for them, there was no reasonable likelihood the jury would have felt precluded from considering other mitigating evidence, and the OCCA was therefore reasonable in its finding of the same.</p> <p>With respect to the prosecutor’s improper arguments, Mr. Simpson contended that the prosecutor not only argued that the evidence did not sufficiently mitigate the conduct, the prosecutor suggested that the evidence should not be considered by the jury at all, thus unfairly limiting the jury’s consideration of the mitigating evidence offered. While the Court noted that there were significant and troubling prosecutorial comments (and went so far as to chastise the conduct in a related footnote), the Court found the OCCA was reasonable in its decision that the jury was not precluded from considering the evidence offered by Mr. Simpson because of the language of the jury instructions.</p> <p>Mr. Simpson next claimed that prosecutorial misconduct denied him a fundamentally fair sentencing proceeding. While the Court acknowledged that the prosecutorial statements at issue were improper, the Court relied on the State having presented significant aggravating evidence to conclude that the OCCA acted reasonably in deciding that the prejudicial impact of these comments did not render the sentencing trial fundamentally unfair. </p> <p>Mr. Simpson also argued that there was insufficient evidence to support the heinous, atrocious, or cruel aggravating factor determination, and the finding was therefore unconstitutional and unreasonable. Although no evidence was presented with respect to how long the victim remained conscious after having been shot or as to whether the victim appeared to be in pain, the Court found that the jury could have reasonably inferred that the victim experienced conscious physical suffering based on the evidence about the victim’s wounds, therefore OCCA was reasonable in deciding there was sufficient evidence to support the jury’s finding with respect to the HAC Aggravating factor.</p> <p>Mr. Simpson also alleged his trial counsel was constitutionally ineffective during both the guilt and sentencing stages of the trial. The Court disagreed, and discussed each instance of alleged ineffective counsel individually. First, with respect to the trial counsel’s alleged failure to investigate and present mitigating evidence, the Court concluded that the State had presented strong evidence in support of the death sentence, and the additional mitigating evidence would have done little if anything to undermine the jury’s findings. Second, the Court found that Mr. Simpson’s trial counsel was not required to request an instruction for second-degree murder, as the offense was not reasonably supported by the evidence. Third, with respect to the trial counsel’s failure to object to improper prosecutorial argument, the Court noted it had already been determined that the prosecutor’s misconduct did not deprive Mr. Simpson of a fundamentally fair sentencing trial, therefore Mr. Simpson could not show that he was actually prejudiced by counsel’s deficient performance. Finally, the Court concluded that the trial counsel did not perform deficiently in failing to object to the jury instruction on mitigation evidence because the mitigation instruction was a correct statement of law. The Court therefore concluded that the OCCA’s adjudication of Mr. Simpson’s ineffective assistance of counsel claim was reasonable.</p> <p>Mr. Simpson’s final claim was that the cumulative errors in his trial denied him a fundamentally fair trail and sentencing proceeding. Despite the identified errors, the jury was presented with copious amounts of aggravating evidence, overwhelming evidence of guilt, and proper instructions from the trial court. The Court therefore found the OCCA was reasonable in its finding that the cumulative effect of the prosecutorial misconduct and instances of his counsel’s deficient performance was harmless.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/87HkaMewnNw" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/tenth-circuit-prejudicial-nature-of-prosecutors-improper-conduct-did-not-significantly-affect-outcome-of-proceedings/feed/ 0 https://cbaclelegalconnection.com/2019/03/tenth-circuit-prejudicial-nature-of-prosecutors-improper-conduct-did-not-significantly-affect-outcome-of-proceedings/ 2019-03-26 15:40 +00:00 2019-03-26 09:40 -06:00 https://cbaclelegalconnection.com/?p=40498 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/zCIMq0M7sPs/ Case Law Colorado Supreme Court Colorado Supreme Court: Announcement Sheet, 3/25/2019 On Monday, March 25, 2019, the Colorado Supreme Court issued one published opinion. Tue, 26 Mar 2019 15:30:47 Z https://cbaclelegalconnection.com/2019/03/colorado-supreme-court-announcement-sheet-3-25-2019/#respond Susan Hoyt <div class="pf-content"> <p>On Monday, March 25, 2019, the Colorado Supreme Court issued one published opinion.</p> <p><em><a rel="noreferrer noopener" aria-label="In re People v. Roina (opens in a new tab)" href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2018/18SA257.pdf" target="_blank">In re People v. Roina</a></em></p> <p>The summary of this case is forthcoming.</p> <p>Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is <a href="https://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2019/6692163.25.191.pdf">available here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/zCIMq0M7sPs" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/colorado-supreme-court-announcement-sheet-3-25-2019/feed/ 0 https://cbaclelegalconnection.com/2019/03/colorado-supreme-court-announcement-sheet-3-25-2019/ 2019-03-26 15:30 +00:00 2019-03-26 09:30 -06:00 https://cbaclelegalconnection.com/?p=40496 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/MtXSza133yE/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 3/25/2019 On Monday, March 25, 2019, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions. Tue, 26 Mar 2019 15:28:05 Z https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-25-2019/#respond Susan Hoyt <div class="pf-content"> <p>On Monday, March 25, 2019, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.</p> <p><a rel="noreferrer noopener" href="https://www.ca10.uscourts.gov/opinions/18/18-1402.pdf" target="_blank"><em>United States v. Chica-Orellana</em></a></p> <p><a rel="noreferrer noopener" href="https://www.ca10.uscourts.gov/opinions/18/18-5096.pdf" target="_blank"><em>United States v. Johnson</em></a></p> <p><a rel="noreferrer noopener" href="https://www.ca10.uscourts.gov/opinions/18/18-5098.pdf" target="_blank"><em>United States v. Hamilton</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are&nbsp;<a href="https://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/MtXSza133yE" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-25-2019/feed/ 0 https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-25-2019/ 2019-03-26 15:28 +00:00 2019-03-26 09:28 -06:00 https://cbaclelegalconnection.com/?p=40492 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/4T8Vlo22p88/ Case Law Colorado Court of Appeals Colorado Court of Appeals: Announcement Sheet, 3/21/2019 On Thursday, March 21, 2019, the Colorado Court of Appeals issued 10 published opinions and 28 unpublished opinions. Fri, 22 Mar 2019 14:48:35 Z https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-announcement-sheet-3-21-2019/#respond Susan Hoyt <div class="pf-content"> <p>On Thursday, March 21, 2019, the Colorado Court of Appeals issued 10 published opinions and 28 unpublished opinions.</p> <p><em><a rel="noreferrer noopener" aria-label="People v. Cohen (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/15CA0982-PD.pdf" target="_blank">People v. Cohen</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="People v. Murphy (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA0397-PD.pdf" target="_blank">People v. Murphy</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="In re Adoption of I.E.H. (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA0956-PD.pdf" target="_blank">In re Adoption of I.E.H.</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="Tisch v. Tisch (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA1591-PD.pdf" target="_blank">Tisch v. Tisch</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="Gagne v. Gagne (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA2036-PD.pdf" target="_blank">Gagne v. Gagne</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="In re Parental Responsibilities Concerning A.C.H. (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA2105-PD.pdf" target="_blank">In re Parental Responsibilities Concerning A.C.H.</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="Whiting-Turner Contracting Co. v. Guarantee Co. of North America USA (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA2160-PD.pdf" target="_blank">Whiting-Turner Contracting Co. v. Guarantee Co. of North America USA</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="Rinker v. Colina-Lee (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA2260-PD.pdf" target="_blank">Rinker v. Colina-Lee</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="People in Interest of A.N.-B. (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/18CA0417-PD.pdf" target="_blank">People in Interest of A.N.-B.</a></em></p> <p><em><a rel="noreferrer noopener" aria-label="Bolton v. Industrial Claim Appeals Office (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/18CA0888-PD.pdf" target="_blank">Bolton v. Industrial Claim Appeals Office</a></em></p> <p>Summaries of these cases are forthcoming.</p> <p>Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is <a href="https://www.courts.state.co.us/Courts/Court_Of_Appeals/Case_Announcements/Files/2019/37F4BA03-21-19.pdf" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">available here</a>.</p> <p><em><br></em></p> <p><em><br></em></p> <p></p> <p><em><br></em></p> <p><em><br></em></p> <p></p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/4T8Vlo22p88" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-announcement-sheet-3-21-2019/feed/ 0 https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-announcement-sheet-3-21-2019/ 2019-03-22 14:48 +00:00 2019-03-22 08:48 -06:00 https://cbaclelegalconnection.com/?p=40490 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/O35lzr2ywDg/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 3/21/2019 On Thursday, March 21, 2019, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion. Fri, 22 Mar 2019 14:23:35 Z https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-21-2019/#respond Susan Hoyt <div class="pf-content"> <p>On Thursday, March 21, 2019, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.</p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are&nbsp;<a href="https://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/O35lzr2ywDg" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-21-2019/feed/ 0 https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-21-2019/ 2019-03-22 14:23 +00:00 2019-03-22 08:23 -06:00 https://cbaclelegalconnection.com/?p=40487 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/hEGEQVy0pxg/ Case Law administrative law Administrative Law Judge Colorado Court of Appeals Industrial Claim Appeals Office maximum medical improvement workers' compensation law Colorado Court of Appeals: ALJ Cannot Determine MMI Where No Physician Has Placed Claimant at MMI The Colorado Court of Appeals issued its opinion in Burren v. Industrial Claim Appeals Office on Thursday, March 7, 2019. Wed, 20 Mar 2019 15:40:02 Z https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-alj-cannot-determine-mmi-where-no-physician-has-placed-claimant-at-mmi/#respond CBA-CLE Staff <div class="pf-content"> <p>The Colorado Court of Appeals issued its opinion in <em><a rel="noreferrer noopener" aria-label="Burren v. Industrial Claim Appeals Office (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/18CA0565-PD.pdf" target="_blank">Burren v. Industrial Claim Appeals Office</a></em> on Thursday, March 7, 2019.</p> <blockquote class="wp-block-quote"><p><em>Workers’ Compensation—Maximum Medical Improvement.</em></p><p>Burren sustained admitted work-related injuries to her arm and shoulder in 2014. Several physicians treated her for her injuries into 2017, but Burren complained that her pain continued to worsen and that none of the treatment improved her condition. None of her physicians placed her at maximum medical improvement (MMI).</p><p>In 2015 employer retained Dr. Fall to perform a medical examination of Burren. She did not find Burren at MMI, but in 2016 she found Burren had reached MMI. Employer then requested Dr. Henke to perform a 24-month division-sponsored independent medical examination (DIME) because no treating physician had placed Burren at MMI. Dr. Henke determined that Burren was not at MMI.</p><p>Employer then applied for a hearing to dispute Dr. Henke’s DIME opinion. The ALJ ruled that employer had clearly and convincingly overcome the DIME and found MMI was reached in 2016. An Industrial Claim Appeals Office panel (the Panel) upheld the ALJ’s order.</p><p>On appeal, Burren argued that the Panel and the ALJ misinterpreted C.R.S. § 8-42-107(8)(b) because an ALJ cannot determine a claimant’s MMI as a matter of fact without an authorized treating physician (ATP) placing her at MMI. She contended that if a DIME performed under the statute finds a claimant is not at MMI, treatment should proceed until an MMI determination is made. The court of appeals analyzed the statute and the Panel’s historical practices and concluded that when the DIME and the ATP agree that a claimant is not at MMI, treatment should continue until either the DIME or the ATP places the claimant at MMI. Thus, the ALJ and the Panel misinterpreted C.R.S. § 8-42-107(8)(b)(II). While the court’s conclusion effectively precludes an employer from challenging a 24-month DIME when the DIME agrees with the ATP that a claimant is not at MMI, it does not prohibit an employer from re-invoking the 24-month DIME process at an appropriate future time.</p><p>The order was set aside and the case was remanded to the Panel with directions to return it to the ALJ to enter an order consistent with the opinion. </p></blockquote> <p><em>Summary provided courtesy of&nbsp;</em><a href="https://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noreferrer noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/hEGEQVy0pxg" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-alj-cannot-determine-mmi-where-no-physician-has-placed-claimant-at-mmi/feed/ 0 https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-alj-cannot-determine-mmi-where-no-physician-has-placed-claimant-at-mmi/ 2019-03-20 15:40 +00:00 2019-03-20 09:40 -06:00 https://cbaclelegalconnection.com/?p=40485 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/OjfW8v-n9XY/ Case Law Americans with Disabilities Act Colorado Court of Appeals dependency and neglect disability law juvenile law termination of parental rights Colorado Court of Appeals: Juvenile Court Must Make Reasonable Accommodations Under ADA in Crafting Treatment Plan for Parents The Colorado Court of Appeals issued its opinion in People in Interest of S.K. on Thursday, March 7, 2019. Wed, 20 Mar 2019 15:36:14 Z https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-juvenile-court-must-make-reasonable-accommodations-under-ada-in-crafting-treatment-plan-for-parents/#respond CBA-CLE Staff <div class="pf-content"> <p>The Colorado Court of Appeals issued its opinion in <em><a rel="noreferrer noopener" aria-label="People in Interest of S.K. (opens in a new tab)" href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/18CA0118-PD.pdf" target="_blank">People in Interest of S.K.</a></em> on Thursday, March 7, 2019.</p> <blockquote class="wp-block-quote"><p><em>Americans with Disabilities Act—Reasonable Accommodations—Termination of Parental Rights—Dependency and Neglect—Rehabilitation Act of 1973.</em></p><p>The Gunnison County Department of Health and Human Services (Department) received reports that S.K. was failing to thrive. The Department initiated a dependency and neglect case and took custody of S.K.</p><p>The parents stipulated that the child was dependent and neglected because she was without proper care through no fault of their own. The juvenile court adopted treatment plans for the parents and appointed a guardian <em>ad litem</em> for each parent. Ultimately, the Department moved to terminate the legal relationships between S.K. and the parents. Mother and father filed a joint motion requesting (1) a finding that the Department had not made reasonable efforts to reunify them with the child, (2) dismissal of the termination motion, and (3) amendment of the treatment plans to provide reasonable accommodations under the Americans with Disabilities Act (ADA). Following a hearing, the court rejected the parents’ arguments and terminated their parental rights.</p><p>On appeal, the parents challenged the appropriateness of their treatment plans, the efforts the Department made to reunify them with the child, and the extent of reasonable accommodations required under the ADA. An appropriate treatment plan is one that is approved by the court and is reasonably calculated to render the parent fit to provide adequate parenting within a reasonable time and that relates to the child’s needs. When evaluating parental unfitness and the likelihood that a parent’s conduct or condition will change, the court must consider whether reasonable efforts have been unable to rehabilitate the parent. The reasonable efforts standard is met when services are provided in accordance with C.R.S. § 19-3-208, including appropriate assessments and referrals and mental health and substance abuse treatment services, if funding is available. Title II of the ADA prohibits a public entity from discriminating against a qualified individual with disabilities in the provision or operation of public services, programs, or activities. Section 504 of the Rehabilitation Act of 1973 applies the same requirement to entities that receive federal financial assistance. There is an affirmative duty placed on a public entity to make reasonable accommodations for qualified individuals with disabilities.</p><p>Whether a parent is a qualified individual with a disability under the ADA is a case-by-case determination. When a parent in a dependency and neglect proceeding has a disability under the ADA, the Department and the juvenile court must make reasonable accommodations for the parent’s disability in the treatment plan and the rehabilitative services provided. When deciding whether to terminate parental rights, the juvenile court must consider whether reasonable accommodations were made for the parent’s disability in determining whether the parent’s treatment plan was appropriate and reasonable efforts were made to rehabilitate the parent. The juvenile court’s primary concern is the child’s health and safety. </p><p>Here, it was undisputed that both parents had serious intellectual and developmental disabilities. Though these were disabilities under the ADA, the ADA does not restrict a court from terminating parental rights when the parent, even after reasonable accommodations, is unable to meet his child’s needs. The juvenile court considered the many services offered to the parents in concluding that the Department provided services that reasonably accommodated the parent’s limitations; the parents’ treatment plans were appropriate; and the Department made reasonable efforts to rehabilitate the parents. These conclusions were supported by the record. </p><p>Mother contended that the juvenile court erred in finding that she was an unfit parent and her conduct or condition was unlikely to change in a reasonable time. The record evidence, including the opinions of professional evaluators, did not support this argument. The juvenile court did not err in concluding that mother was an unfit parent and her conduct or condition was unlikely to change in a reasonable time.</p><p>Father argued that placing the child with the paternal grandmother was a less drastic alternative to termination. The record showed that a home study resulted in the paternal grandmother being denied placement for the child and otherwise supported the juvenile court’s determination that there was no less drastic alternative to termination.</p><p>The judgment was affirmed. </p></blockquote> <p><em>Summary provided courtesy of&nbsp;</em><a href="https://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noreferrer noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/OjfW8v-n9XY" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-juvenile-court-must-make-reasonable-accommodations-under-ada-in-crafting-treatment-plan-for-parents/feed/ 0 https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-juvenile-court-must-make-reasonable-accommodations-under-ada-in-crafting-treatment-plan-for-parents/ 2019-03-20 15:36 +00:00 2019-03-20 09:36 -06:00 https://cbaclelegalconnection.com/?p=40483 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/sCWHQKOnrbw/ Case Law Colorado Court of Appeals education law licensing mandatory reporter Colorado Court of Appeals: Teacher Must Report Child Abuse Regardless of Circumstances in Which He or She Learns of Abuse The Colorado Court of Appeals issued its opinion in Heotis v. Colorado State Board of Education on Thursday, March 7, 2019. Wed, 20 Mar 2019 15:31:44 Z https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-teacher-must-report-child-abuse-regardless-of-circumstances-in-which-he-or-she-learns-of-abuse/#respond CBA-CLE Staff <div class="pf-content"> <p>The Colorado Court of Appeals issued its opinion in <em><a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/18CA0057-PD.pdf" target="_blank" rel="noreferrer noopener" aria-label="Heotis v. Colorado State Board of Education (opens in a new tab)">Heotis v. Colorado State Board of Education</a></em> on Thursday, March 7, 2019.</p> <blockquote class="wp-block-quote"><p><em>Teacher’s License—C.R.S. § 19-3-304(2)(l) Reporting Duties—Constitutionality.</em></p><p>Several months before the expiration of her teacher’s license, Hoetis submitted a renewal application to the Colorado State Board of Education (the Board). The Board denied her application because while Heotis was employed as a public school teacher, she did not report to authorities that her then-husband had sexually abused their daughter. The Board determined her failure to report the abuse was unethical under Colorado’s Teacher Licensing Act, C.R.S. § 22-60.5-107(4) (the Act). An administrative law judge (ALJ) upheld the Board’s decision, and the district court upheld the Board’s final order.</p><p>On appeal, Heotis argued that the Act violates due process on its face and as applied because the disciplinary options provided to the Board by the Act are too limited as compared to the greater disciplinary flexibility provided to other licensing boards. The court of appeals found no authority to support the proposition that the greater flexibility in other licensing statues represents a constitutional minimum. Hoetis failed to establish that the Act is unconstitutional.</p><p>Hoetis also contended that there was insufficient evidence to support the conclusion that she engaged in unethical behavior. She argued that she was not required to report the abuse of her daughter. C.R.S. § 19-3-304(2)(l) required Heotis, as a public school teacher, and thus a mandatory reporter, to immediately report any known or suspected child abuse or neglect. This duty applies irrespective of the circumstances in which the reporter learns of or suspects abuse or neglect. The statute reflects a moral standard in the community for teachers. Substantial evidence in the record supported the Board’s conclusion that Heotis engaged in unethical conduct through her failure to report because it offended the morals of the community.</p><p>Hoetis further argued that she was excused from reporting based on evidence that she suffered from battered woman syndrome. The statute does include an exception for persons suffering from battered woman syndrome. Moreover, there was substantial evidence in the record that Hoetis did not report because she was trying to keep her family together, not because of battered woman syndrome.</p><p>The judgment was affirmed. </p></blockquote> <p><em>Summary provided courtesy of&nbsp;</em><a href="https://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noreferrer noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/sCWHQKOnrbw" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-teacher-must-report-child-abuse-regardless-of-circumstances-in-which-he-or-she-learns-of-abuse/feed/ 0 https://cbaclelegalconnection.com/2019/03/colorado-court-of-appeals-teacher-must-report-child-abuse-regardless-of-circumstances-in-which-he-or-she-learns-of-abuse/ 2019-03-20 15:31 +00:00 2019-03-20 09:31 -06:00 https://cbaclelegalconnection.com/?p=40481 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/I7ABOUtWGXs/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 3/19/2019 On Tuesday, March 19, 2019, the Tenth Circuit Court of Appeals issued two published opinions and no unpublished opinions. Wed, 20 Mar 2019 15:23:54 Z https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-19-2019/#respond Susan Hoyt <div class="pf-content"> <p>On Tuesday, March 19, 2019, the Tenth Circuit Court of Appeals issued two published opinions and no unpublished opinions.</p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are&nbsp;<a href="https://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/I7ABOUtWGXs" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-19-2019/feed/ 0 https://cbaclelegalconnection.com/2019/03/tenth-circuit-unpublished-opinions-3-19-2019/ 2019-03-20 15:23 +00:00 2019-03-20 09:23 -06:00