Featured News http://cbaclelegalconnection.com/?p=38961 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/wHNdUhFgbFc/ Job Satisfaction career transition economics inspiration job satisfaction job search mental health Utopia for Realists Dutchman Rutger Bregman is a member of the Forbes 30 Under 30 Europe Class of 2017. He’s written four books on history, philosophy, and economics. In his book Utopia for Realists (2016), he recognizes the dangers of utopian thinking: "True, history is full of horrifying forms of utopianism — fascism, communism, Nazism — just as every religion has also spawned fanatical sects. "According to the cliché, dreams have a way of turning into nightmares. Utopias are a breeding ground for discord, violence, even genocide. Utopias ultimately become dystopias." Thu, 10 May 2018 15:43:32 Z http://cbaclelegalconnection.com/2018/05/utopia-for-realists/#respond Kevin Rhodes <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2018/05/utopia-for-realists/utopia-for-realists/" rel="attachment wp-att-38962"><img class="alignleft size-full wp-image-38962" src="http://cbaclelegalconnection.com/wp-content/uploads/2018/05/utopia-for-realists.jpg" alt="" width="150" height="231" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2018/05/utopia-for-realists.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2018/05/utopia-for-realists-97x150.jpg 97w" sizes="(max-width: 150px) 100vw, 150px" /></a>Dutchman Rutger Bregman is a member of the <a href="https://www.forbes.com/30-under-30-europe-2017/#51a116783668">Forbes 30 Under 30 Europe Class of 2017</a>. He’s written four books on history, philosophy, and economics. In his book <em><a href="https://www.amazon.com/Utopia-Realists-How-Can-There/dp/1408890275/ref=tmm_pap_swatch_0?_encoding=UTF8&amp;qid=&amp;sr=">Utopia for Realists</a></em> (2016), he recognizes the dangers of utopian thinking:</p> <blockquote><p>True, history is full of horrifying forms of utopianism — fascism, communism, Nazism — just as every religion has also spawned fanatical sects.</p> <p>According to the cliché, dreams have a way of turning into nightmares. Utopias are a breeding ground for discord, violence, even genocide. Utopias ultimately become dystopias.</p></blockquote> <p>Having faced up to the dangers, however, he presses on:</p> <blockquote><p>Let’s start with a little history lesson: In the past, everything was worse. For roughly 99% of the world’s history, 99% of humanity was poor, hungry, dirty, afraid, stupid, sick, and ugly. As recently as the seventeenth century, the French philosopher Blaise Pascal (1623-62) described life as one giant vale of tears. &#8220;Humanity is great,&#8221; he wrote, &#8220;because it knows itself to be wretched.&#8221; In Britain, fellow philosopher Thomas Hobbes (1588-1679) concurred that human life was basically, &#8220;solitary, poor, nasty, brutish, and short.&#8221;</p> <p>But in the last 200 years, all that has changed. In just a fraction of the time that our species has clocked on this planet, billions of us are suddenly rich, well nourished, clean, safe, smart, healthy, and occasionally even beautiful.<a href="#_edn1" name="_ednref1">[1]</a></p> <p>Welcome, in other words, to the Land of Plenty. To the good life, where almost everyone is rich, safe, and healthy. Where there’s only one thing we lack: a reason to get out of bed in the morning. Because, after all, you can’t really improve on paradise. Back in 1989, the American philosopher Francis Fukuyama already noted that we had arrived in an era where life has been reduced to &#8220;economic calculation, the endless solving of technical problems, environmental concerns, and the satisfaction of sophisticated consumer demands.&#8221;<a href="#_edn2" name="_ednref2">[2]</a></p> <p>Notching up our purchasing power another percentage point, or shaving a couple off our carbon emissions; perhaps a new gadget — that’s about the extent of our vision. We live in an era of wealth and overabundance, but how bleak it is. There is &#8220;neither art nor philosophy,&#8221; Fukuyama says. All that’s left is the &#8220;perpetual caretaking of the museum of human history.&#8221;</p> <p>According to Oscar Wilde, upon reaching the Land of Plenty, we should once more fix our gaze on the farthest horizon and rehoist the sails. &#8220;Progress is the realization of utopias,&#8221; he wrote. But the farthest horizon remains blank. The Land of Plenty is shrouded in fog. Precisely when we should be shouldering the historic task of investing this rich, safe, and healthy existence with meaning, we’ve buried utopia instead.</p> <p>In fact, most people in wealthy countries believe children will actually be <em>worse</em> off than their parents. According to the World Health Organization, depression has even become the biggest health problem among teens and will be the number-one cause of illness worldwide by 2030.<a href="#_edn3" name="_ednref3">[3]</a></p> <p>It’s a vicious cycle. Never before have so many young people been seeing a psychiatrist. Never before have there been so many early career burnouts. And we’re popping antidepressants like never before. Time and again, we blame collective problems like unemployment, dissatisfaction, and depression on the individual. If success is a choice, so is failure. Lost your job? You should have worked harder. Sick? You must not be leading a healthy lifestyle. Unhappy? Take a pill.</p> <p>No, the real crisis is that we can’t come up with anything better. We can’t imagine a better world than the one we’ve got. The real crisis of our times, of my generation, is not that we don’t have it good, or even that we might be worse off later on. &#8220;The best minds of my generation are thinking about how to make people click ads,&#8221; a former math whiz at Facebook recently lamented.<a href="#_edn4" name="_ednref4">[4]</a></p></blockquote> <p>After this assessment, Bregman shifts gears. “The widespread nostalgia, the yearning for a past that really never was,” he says, “suggest that we still have ideals, even if we have buried them alive.” From there, he distinguishes the kind of utopian thinking we do well to avoid from the kind we might dare to embrace. <em>We’ll follow him into that discussion next time.</em></p> <hr /> <p><a href="#_ednref1" name="_edn1">[1]</a> For a detailed (1,000 pages total) history of this economic growth from general nastiness to the standard of living we enjoy now, I’ll refer you again to two books I plugged a couple weeks ago: <em><a href="https://www.americana.tv/">Americana: A 400 Year History Of American Capitalism</a> </em>and <em><a href="https://press.princeton.edu/titles/10544.html">The Rise and Fall of American Growth</a></em>.</p> <p><a href="#_ednref2" name="_edn2">[2]</a> <em>See</em> <em><a href="http://world.time.com/2012/02/08/fukuyamas-future-of-history-is-liberal-democracy-doomed/">here</a></em> and <em><a href="https://www.washingtonpost.com/news/worldviews/wp/2017/02/09/the-man-who-declared-the-end-of-history-fears-for-democracys-future/">here</a></em> for a sampling of updates/opinions providing a current assessment of Fukuyama’s 1989 article.</p> <p><a href="#_ednref3" name="_edn3">[3]</a> World Health Organization, <em>Health for the World’s Adolescents</em>, June 2014. <a href="http://apps.who.int/adolescent/second-decade/files/1612_MNCAH_HWA_Executive_Summary.pdf">See this executive summary.</a></p> <p><a href="#_ednref4" name="_edn4">[4]</a> &#8220;<a href="https://www.bloomberg.com/news/articles/2011-04-14/this-tech-bubble-is-different">This Tech Bubble is Different,&#8221; <em>Bloomberg Businessweek</em>, April 14, 2011.</a></p> <p>&nbsp;</p> <div style="border: 1px solid #999999; background-color: #dadada;"> <p><em><a href="http://cbaclelegalconnection.com/2017/07/can-money-buy-happiness/photo-kevin-head-shot-thumbnail/" rel="attachment wp-att-37377"><img class="alignleft size-full wp-image-37377" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg" alt="" width="150" height="187" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/07/Photo-Kevin-Head-Shot-thumbnail-120x150.jpg 120w" sizes="(max-width: 150px) 100vw, 150px" /></a></em></p> <p><a href="https://www.linkedin.com/in/kevin-rhodes-b171117/">Kevin Rhodes</a> <em>would create workplace utopia if he could. But since he doesn’t trust himself to do that, he writes this blog instead. Thanks for reading!</em></p> </div> <p>&nbsp;</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/wHNdUhFgbFc" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/utopia-for-realists/feed/ 0 http://cbaclelegalconnection.com/2018/05/utopia-for-realists/ 2018-05-10 15:43 +00:00 2018-05-10 09:43 -06:00 http://cbaclelegalconnection.com/?p=38959 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/aR664PXdXZc/ Case Law board of assessment appeals Colorado Court of Appeals land parcels real estate law real property tax law Colorado Court of Appeals: Land Parcels Only Contiguous If They Touch, so Parcels Separated by Public Right-of-Way Not Contiguous The Colorado Court of Appeals issued its opinion in <em>Bringle Family Trust v. Board of Assessment Appeals</em> on Thursday, May 3, 2018. Thu, 10 May 2018 15:35:31 Z http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-land-parcels-only-contiguous-if-they-touch-so-parcels-separated-by-public-right-of-way-not-contiguous/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/17CA0435-PD.pdf" target="_blank" rel="noopener"><em>Bringle Family Trust v. Board of Assessment Appeals</em></a> on Thursday, May 3, 2018.</p> <blockquote><p><em>Property Tax—Classification—Residential—Vacant—Contiguous.</em></p> <p>The Bringle Family Trust (Trust) owns two parcels of land in Summit County that are platted lots in the Bills Ranch Subdivision. The “residential parcel” is separated from the “subject parcel” by a road. This road is a public right-of-way maintained by the Bills Ranch Subdivision Association. In early 2016, the Trust petitioned the Board of County Commissioners of Summit County (the County) for an abatement or refund of taxes, arguing that the subject parcel’s property tax assessment classification should be changed from vacant to residential for tax years 2013 to 2015. The County denied the Trust’s petitions. The Board of County Commissioners (Board) upheld this decision.</p> <p>On appeal, the Trust contended that the Board erroneously denied its petition by misconstruing C.R.S. § 39-1-102(14.4)(a) to conclude that the subject parcel was not contiguous to the residential parcel or “used as a unit in conjunction with the residential improvements located thereon.” The subject parcel must be contiguous to the residential parcel to be classified as residential property for tax purpose. Parcels are contiguous only if they touch. The Trust’s subject and residential parcels are distinct parcels separated by a public road that the Trust does not own. The Trust failed to show that the subject parcel meets the C.R.S. § 39-1-102(14.4)(a) contiguity requirement, and thus the Board correctly declined to reclassify the subject parcel as residential property. Given this determination, the court of appeals did not address the Trust’s contention that the subject parcel meets the “used as a unit” requirement.</p> <p>The Board’s order was affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/aR664PXdXZc" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-land-parcels-only-contiguous-if-they-touch-so-parcels-separated-by-public-right-of-way-not-contiguous/feed/ 0 http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-land-parcels-only-contiguous-if-they-touch-so-parcels-separated-by-public-right-of-way-not-contiguous/ 2018-05-10 15:35 +00:00 2018-05-10 09:35 -06:00 http://cbaclelegalconnection.com/?p=38957 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/sTjJ6yIq3eA/ Case Law appellate law Colorado Court of Appeals domestic relations law family law jurisdiction Colorado Court of Appeals: District Court Retains Jurisdiction Over Allocation of Parental Responsibilities while Prior Order on Appeal The Colorado Court of Appeals issued its opinion in <em>In re Parental Responsibilities Concerning W.C.</em> on Thursday, May 3, 2018. Thu, 10 May 2018 15:32:22 Z http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-district-court-retains-jurisdiction-over-allocation-of-parental-responsibilities-while-prior-order-on-appeal/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/16CA0428-PD.pdf" target="_blank" rel="noopener"><em>In re Parental Responsibilities Concerning W.C.</em></a> on Thursday, May 3, 2018.</p> <blockquote><p><em>Parental Responsibilities—Jurisdiction—Appeal—Motion to Modify—Changed Circumstances.</em></p> <p>In this allocation of parental responsibilities case, father appealed the district court’s permanent orders granting mother sole decision-making authority and majority parenting time. Though his appeal is pending with this court, father filed verified motions to modify parenting time and decision-making in the district court. The district court concluded that it lacked jurisdiction to consider those motions while the appeal was pending; it decided to take no action on father’s motions unless and until the Court of Appeals finds that the district court has jurisdiction or remands and gives the court authority to consider the motions.</p> <p>The Court determined that under Colorado’s Uniform Dissolution of Marriage Act, a district court retains continuing jurisdiction over motions to modify parental responsibilities while the current allocation order is on appeal, as long as those motions are based on a material change in circumstances that occurred after the original order was entered.</p> <p>Father’s motion to clarify was granted and the case was remanded.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/sTjJ6yIq3eA" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-district-court-retains-jurisdiction-over-allocation-of-parental-responsibilities-while-prior-order-on-appeal/feed/ 0 http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-district-court-retains-jurisdiction-over-allocation-of-parental-responsibilities-while-prior-order-on-appeal/ 2018-05-10 15:32 +00:00 2018-05-10 09:32 -06:00 http://cbaclelegalconnection.com/?p=38955 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/3nRz9KbQh6k/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 5/9/2018 On Wednesday, May 9, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion. Thu, 10 May 2018 15:29:08 Z http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-9-2018/#respond Susan Hoyt <div class="pf-content"><p>On Wednesday, May 9, 2018, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.</p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-2024.pdf" target="_blank" rel="noopener"><em>United States v. Sepulveda</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/3nRz9KbQh6k" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-9-2018/feed/ 0 http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-9-2018/ 2018-05-10 15:29 +00:00 2018-05-10 09:29 -06:00 http://cbaclelegalconnection.com/?p=38950 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/Xdia5f_LEh4/ Case Law appellate law Colorado Court of Appeals Colorado Rules of Criminal Procedure criminal law statutory amendment Colorado Court of Appeals: Statutory Amendment Deprived State of Authority to Prosecute Conviction on Appeal The Colorado Court of Appeals issued its opinion in <em>People v. Cali</em> on Thursday, May 3, 2018. Wed, 09 May 2018 15:08:55 Z http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-statutory-amendment-deprived-state-of-authority-to-prosecute-conviction-on-appeal/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/15CA2082-PD.pdf" target="_blank" rel="noopener"><em>People v. Cali</em></a> on Thursday, May 3, 2018.</p> <blockquote><p><i>Theft—Theft by Receiving—Appeal—Statutory Amendment—Collateral Attack—Crim. P. 35(c)(2)(VI)—Postconviction Remedies.</i></p> <p class="Default">Cali was convicted of theft and theft by receiving, both class 4 felonies, as well as two habitual criminal counts. The trial court sentenced him to 18 years in the custody of the Department of Corrections. Cali directly appealed his convictions, and his theft conviction was vacated. After Cali had filed his notice of appeal in the direct appeal and while the appeal was still pending, the legislature reclassified theft by receiving, as committed by Cali, to a class 6 felony. After his direct appeal became final, Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant here, that he was entitled to the benefit of the changed statute. The postconviction court denied Cali’s motion without a hearing.</p> <p class="Default">On appeal, Cali argued that the trial court erred by analyzing his postconviction claim as a request for retroactive application of the statutory amendment. He contended that because the amendment took effect while his direct appeal was pending and before his conviction became final, he is entitled to the benefit of the amendment. The amended statute applied to Cali because before Cali’s conviction became final, the State lost the authority to prosecute him for committing the class 4 felony of theft by receiving. That a different statute classifying theft by receiving as a class 6 felony could then be applied to Cali does not change the fact that the State lost the authority to enforce the statute under which Cali had been convicted. Although Cali did not raise the State’s loss of authority to prosecute him before his conviction became final on appeal, he could collaterally attack his conviction under Crim. P. 35(c)(2)(VI). Cali asserted a timely postconviction claim that entitles him to reversal of his conviction. But the trial court must convict him of the class 6 felony and sentence him accordingly.</p> <p>The postconviction order was reversed. Cali’s conviction was vacated, and the case was remanded with directions.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/Xdia5f_LEh4" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-statutory-amendment-deprived-state-of-authority-to-prosecute-conviction-on-appeal/feed/ 0 http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-statutory-amendment-deprived-state-of-authority-to-prosecute-conviction-on-appeal/ 2018-05-09 15:08 +00:00 2018-05-09 09:08 -06:00 http://cbaclelegalconnection.com/?p=38952 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/WHUvCF-ISZw/ Case Law Colorado Court of Appeals criminal law restitution restitution agreement Colorado Court of Appeals: Disposition of Stolen Property Governed by Restitution Agreement, Not UCC or Conversion Principles The Colorado Court of Appeals issued its opinion in <em>People v. Madison</em> on Thursday, May 3, 2018. Wed, 09 May 2018 15:08:35 Z http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-disposition-of-stolen-property-governed-by-restitution-agreement-not-ucc-or-conversion-principles/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/16CA0192-PD.pdf" target="_blank" rel="noopener"><em>People v. Madison</em></a> on Thursday, May 3, 2018.</p> <blockquote><p><i>Restitution Agreement.</i></p> <p class="Default">Madison stole scores of bottles of expensive wine from multiple liquor stores. He pleaded guilty, and the court sentenced him to a two-year term of probation and ordered restitution. As part of the restitution agreement, Madison was permitted to take possession of the stolen property if he paid restitution to the victims within a contractual period of time. (The liquor stores declined to accept the recovered wine because the storage method could not be confirmed, and thus the wine was not marketable.) Madison and the prosecution also entered into an “Evidence Disposition Agreement.” Defendant did not pay the restitution and, five years later, the sheriff’s office moved for an order authorizing it to destroy the stolen property. The motion was granted by the court.</p> <p class="Default">On appeal, Madison argued that he had an ownership interest in the wine. He contended that the court should have either permitted him to sell the wine or ordered the sheriff’s office to sell it, with any proceeds applied to his restitution obligation. Disposition of the wine was governed by the restitution agreement, which expressly provided for the destruction of the wine if Madison failed to both pay the restitution and pick up the wine within 90 days. Because Madison failed to meet that deadline, the sheriff’s office had the right to dispose of the wine without seeking approval from the court or notifying Madison. Further, the agreement did not give Madison the right to determine the particular disposition of the wine or to demand that any proceeds from the disposition be distributed to the victims and then applied to reduce his restitution balance.</p> <p class="Default">Madison also contended that the agreement gave him an ownership interest in the wine, notwithstanding his failure to satisfy its requirements, based on the Uniform Commercial Code (UCC) and conversion principles. Disposition of the stolen property is governed by the agreement, not by the UCC or conversion principles. Madison had a right to obtain the property only upon satisfaction of conditions precedent, which he failed to satisfy.</p> <p>The order was affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/WHUvCF-ISZw" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-disposition-of-stolen-property-governed-by-restitution-agreement-not-ucc-or-conversion-principles/feed/ 0 http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-disposition-of-stolen-property-governed-by-restitution-agreement-not-ucc-or-conversion-principles/ 2018-05-09 15:08 +00:00 2018-05-09 09:08 -06:00 http://cbaclelegalconnection.com/?p=38948 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/aR9KOObc2ak/ Case Law Colorado Court of Appeals criminal law dui law reasonable suspicion search testimony Colorado Court of Appeals: Finding of Half-empty Schnapps Bottle in Vehicle Did Not Negate Police Officers’ Reasonable Suspicion The Colorado Court of Appeals issued its opinion in <em>People v. Kessler</em> on Thursday, May 3, 2018. Wed, 09 May 2018 15:08:07 Z http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-finding-of-half-empty-schnapps-bottle-in-vehicle-did-not-negate-police-officers-reasonable-suspicion/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/14CA1390-PD.pdf" target="_blank" rel="noopener"><em>People v. Kessler</em></a> on Thursday, May 3, 2018.</p> <blockquote><p><i>DUI—Evidence—Possession of a Controlled Substance—Search and Seizure—Search Incident to Arrest—Motor Vehicle—Reasonable Suspicion—Cross-Examination.</i></p> <p class="Default">Defendant was pulled over by the police for speeding. Upon approaching the car with a flashlight, an officer spotted a half-empty schnapps bottle on the floor behind the passenger’s seat. The officer asked defendant for his license, registration, and proof of insurance multiple times before defendant presented his registration and proof of insurance. Defendant admitted he did not have a valid driver’s license. Because defendant showed signs of intoxication, the officer asked him to step out of the vehicle. Defendant needed to use the car door for support to get out of the car, and he eventually admitted he had drunk from the schnapps bottle. Defendant performed roadside sobriety maneuvers unsatisfactorily, and his breath test registered .154g/210L. Defendant was arrested for DUI and placed in the back of the police car. Two other officers then searched the car for further evidence of alcohol consumption and found a bag of cocaine in the console, inches from where defendant sat. Among other things, defendant was convicted of possession of a controlled substance (cocaine).</p> <p class="Default">On appeal, defendant contended that the evidence was insufficient to convict him of possessing a controlled substance (cocaine). He argued that he was not in exclusive possession of the car on the date in question and denied knowing the cocaine was on the car. The possibility that someone else was in the car earlier that day does not change the fact that defendant was in exclusive possession of the vehicle when it was stopped and searched, making him subject to the inference that he knowingly possessed the cocaine. Further, the location of the cocaine and defendant’s testimony that no one else had interacted with the console support the inference. There was sufficient evidence for the jury to convict him on this charge.</p> <p class="Default">Defendant next contended that the trial court should have suppressed evidence related to the recovery of cocaine from his car because the police lacked sufficient grounds to search the car once they seized the half-empty bottle of schnapps. The police are permitted to search a vehicle incident to a lawful arrest. Here, the officer had probable cause to arrest defendant on a DUI charge, defendant initially denied consuming alcohol, and it was likely the officers would find evidence of alcohol while searching defendant’s vehicle. The officers’ reasonable suspicion that the car contained alcohol did not evaporate once the officers found some alcohol. Therefore, the search that uncovered the cocaine was proper.</p> <p class="Default">Finally, at trial, the amount of alcohol in the schnapps bottle when the officer discovered it was contested: the officer said it was half full, while defendant testified it was two-thirds full. During cross-examination, the prosecution asked defendant if the officer “made up” the amount of schnapps in the bottle. Although the prosecution’s question was improper, it did not cast doubt on the reliability of the conviction. The error was not substantial and did not warrant reversal under the plain error rule.</p> <p>The judgment of conviction was affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/aR9KOObc2ak" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-finding-of-half-empty-schnapps-bottle-in-vehicle-did-not-negate-police-officers-reasonable-suspicion/feed/ 0 http://cbaclelegalconnection.com/2018/05/colorado-court-of-appeals-finding-of-half-empty-schnapps-bottle-in-vehicle-did-not-negate-police-officers-reasonable-suspicion/ 2018-05-09 15:08 +00:00 2018-05-09 09:08 -06:00 http://cbaclelegalconnection.com/?p=38946 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/HWrJ6GxIxwY/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 5/8/2018 On Tuesday, May 8, 2018, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions. Wed, 09 May 2018 15:07:43 Z http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-8-2018/#respond Susan Hoyt <div class="pf-content"><p>On Tuesday, May 8, 2018, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.</p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-1039.pdf" target="_blank" rel="noopener"><i>Raup v. Vail Summit Resorts, Inc.</i></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-7015.pdf" target="_blank" rel="noopener"><em>United States v. Jenkins</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-3013.pdf" target="_blank" rel="noopener"><em>Davis v. State of California</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/HWrJ6GxIxwY" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-8-2018/feed/ 0 http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-8-2018/ 2018-05-09 15:07 +00:00 2018-05-09 09:07 -06:00 http://cbaclelegalconnection.com/?p=38944 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/hcP0mVt_46I/ Legal Writing appellate law Connection Partners law practice management legal writing litigation motions Forging New Writing Conventions: Parentheticals (And How We Use Them) Putting citations after sentences sacrifices readability for credibility. The convention has critics but is here for the immediate future. Its sister convention is putting parentheticals after citations. This convention rarely gets any discussion. It should. Tue, 08 May 2018 15:23:57 Z http://cbaclelegalconnection.com/2018/05/forging-new-writing-conventions-parentheticals-and-how-we-use-them/#respond Michael Blasie <div class="pf-content"><p><a href="http://cbaclelegalconnection.com/2017/09/lawless-landscape-legal-writing/michael-blasie-legal-writing/" rel="attachment wp-att-37648"><img class="alignleft wp-image-37648 size-full" src="http://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing.jpg" alt="" width="170" height="171" srcset="http://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing.jpg 170w, http://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing-150x150.jpg 150w, http://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing-70x70.jpg 70w, http://cbaclelegalconnection.com/wp-content/uploads/2017/09/Michael-Blasie-Legal-Writing-100x100.jpg 100w" sizes="(max-width: 170px) 100vw, 170px" /></a>Putting citations after sentences sacrifices readability for credibility. The convention has critics but is here for the immediate future.<a href="#_ftn1" name="_ftnref1">[1]</a> Its sister convention is putting parentheticals after citations. This convention rarely gets any discussion. It should.</p> <p><strong>When to Use Parentheticals </strong></p> <p>Every law student learns to use parentheticals. They take different forms. Often they are incomplete sentences explaining a point about the source, usually starting with a present participle—an “ing” word like “holding,” “finding,” or “concluding.” We use them often. Why?</p> <p>Any answer includes a need to convey information about the source. But why convey that information in a parenthetical? This is the question you need to answer before using one.</p> <p>There is a difference between each of the following:</p> <blockquote><p>“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.” <em>People In Interest of S.N. v. S.N.</em>, 2014 CO 64, ¶ 16.</p> <p><em>People In Interest of S.N. v. S.N.</em>, 2014 CO 64, ¶ 16. (“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.”)</p> <p>Summary judgment is only appropriate when there are no disputed material facts. <em>People In Interest of S.N. v. S.N.</em>, 2014 CO 64, ¶ 16.</p> <p><em>People In Interest of S.N. v. S.N.</em>, 2014 CO 64, ¶ 16 (summary judgment is only appropriate when there are no disputed material facts).</p></blockquote> <p>When you include a parenthetical you make a series of choices. First, you choose to include rather than exclude information. Second, you decide how to phrase the information, either quoting, paraphrasing, or a little of both. Third, you determine where to put the information, either in the main text before the citation or in a parenthetical after the citation. That placement has consequences.</p> <p>Those consequences come from how we read briefs. We all learn to write using parentheticals. But we do not necessarily learn to read parentheticals, or at least not to read them how the writer intends.</p> <p>Here’s the writer’s perspective. The information is important enough to go in the brief, and belongs at the source’s hip.</p> <p>But this placement has other consequences to the reader. The parenthetical is separate the main text. Because it stands apart, the reader must connect the main text information and the parenthetical information. A parenthetical placement may also suggest the information is less important than the main text. Indeed, part of Bryan Garner’s argument for putting citations in footnotes is that important authorities should be named and discussed in the main text, and “discussion of governing and persuasive authorities is enhanced because it can no longer be buried in parentheticals following citations.”<a href="#_ftn2" name="_ftnref2">[2]</a> Plus, a parenthetical lengthens the citation, often by several lines. That lengthening causes greater disruption. Remember, main text citations trade readability for credibility. The longer the citation, the less readable the pros, the more unbalanced the trade.</p> <p>Applying these factors, here are some scenarios that tempt readers to skip or gloss over parentheticals.</p> <p><em>The main text suggests the parenthetical is unnecessary</em>: If the main text sentence states an obvious or well-known proposition, a parenthetical seems unnecessary. Readers are always more tempted to skip portions that seem unnecessary. For example:</p> <blockquote><p>The statute of limitations for a bad faith tort claim is two years. <em>Brodeur v. American Home Assur. Co.</em>, 169 P.3d 139, 151 (2007) (dismissing claim filed over two years and ten months after cause of action arose).</p></blockquote> <p>We all know what a statute of limitations is and the consequences of filing a tardy claim. The information in the parenthetical adds nothing. But that’s just the reader’s guess.</p> <p>The reader’s triage comes before reading the parenthetical. Based on the main text sentence, the reader determines the parenthetical probably adds nothing and therefore is not worth reading. So the takeaway is to make sure the main text sentence preceding the citation sets up the need for a parenthetical. Great information does you no good if the reader never reads it. Secondarily, make sure the parenthetical’s information adds to your brief so when the reader does get to it, the information advances your argument.</p> <p><em>The parenthetical is very long</em>: Lengthy parentheticals rarely work. They are too much. They squeeze lists of facts or reasons into a run-on incomplete sentence. At the same time they drag out a citation, which disrupts the main text’s flow and often makes it difficult to find the next sentence. A common example is a parenthetical that tries to single-handedly apply a multi-factor test. For instance, a parenthetical applying <em>People v. Humphrey’s</em> twelve-factor assessment to determine if a <em>Miranda</em> waiver is valid.<a href="#_ftn3" name="_ftnref3">[3]</a> Or a single parenthetical discussing how <em>Effland v. People</em> found five factors weighing against a finding of custody and fifteen in favor.<a href="#_ftn4" name="_ftnref4">[4]</a> A parenthetical about one factor may be appropriate. But a discussion of the entire analysis or several factors is too much for one incomplete sentence bracketed by parentheses.</p> <p>When to use parentheticals, what information to put in them, and how to convey that information requires judgment. But odds are you overuse them. To refine your judgment analyze <em>People v. Brooks</em>, which has over sixty case citations and only one with a substantive parenthetical explanation.<a href="#_ftn5" name="_ftnref5">[5]</a> <em>People v. Howard-Walker</em> has over one-hundred case citations, only four with explanatory parentheticals.<a href="#_ftn6" name="_ftnref6">[6]</a></p> <p><strong>How to Phrase Parentheticals </strong></p> <p>An equally valid question is why we start parentheticals with a present participle (those “ing” words). Law school taught us this probably because the <em>Bluebook</em> rule on parentheticals says explanations not quoting the source “usually begin with a present participle.”<a href="#_ftn7" name="_ftnref7">[7]</a> Why the <em>Bluebook</em> takes this position is unclear. Even if you live and die by the <em>Bluebook</em>, “usually” means not always.</p> <p>Given the widespread use of “ing” words, would cutting them throw the reader or alter the meaning? See for yourself.</p> <blockquote><p>For all these reasons, we conclude that the issue was sufficiently preserved. <em>See People v. Syrie</em>, 101 P.3d 219, 223 n.7 (Colo.2004) (an issue is preserved where the trial court has “adequate opportunity to make factual findings and legal conclusions on any issue that is later raised on appeal”)</p> <p style="text-align: center;">. . .</p> <p>In all of them, the courts considered extrinsic circumstances only to determine whether the images were created to be viewed for sexual gratification. <em>See Batchelor</em>, 800 P.2d at 604 (that the defendant concealed the photos of his naked nine-year-old daughter, took the pictures at night, posed the child, and took the pictures secretly showed that he took the pictures for his own sexual gratification); <em>T.B.</em>, ¶ 34 (that the defendant had texted the victims a picture of his erect penis when he solicited nude pictures from the victims showed that the pictures taken by the victims were intended for the defendant’s sexual gratification); <em>Grady</em>, 126 P.3d at 222 (the defendant produced photos of teenage models that he also posted on a website entitled “True Teen Babes”); <em>Gagnon</em>, 997 P.2d at 1284 (in deciding whether pictures taken by the defendant of a teenage girl in sexually suggestive poses and clothing were produced for sexual gratification, the court considered that “the pictures of the victim were found along with a large collection of other material the trial court described as adult pornography”).”</p> <p style="text-align: center;">. . .</p> <p>Images that are otherwise constitutionally protected images could become unprotected based merely on the subjective response of a particular viewer. <em>See Batchelor</em>, 800 P.2d at 602 (pictures depicting nude children for legitimate purposes are constitutionally protected).<a href="#_ftn8" name="_ftnref8">[8]</a></p></blockquote> <p>This excerpt shows “ing” words are often not needed. Commonly used present participles like “holding,” “finding,” and “concluding” are usually unnecessary because they are implied. In fact, it is difficult to imagine an example where such words make a difference. Take a look:</p> <blockquote><p><em>Smith v. Jones</em>, 123 F.2d 345 (12th Cir. 2018) (finding statute of limitations barred claim).</p> <p><em>Smith v. Jones</em>, 123 F.2d 345 (12th Cir. 2018) (statute of limitations barred claim).</p></blockquote> <p>By contrast, openings like “comparing,” “reaching,” and “distinguishing” add meaning to a parenthetical.</p> <p>You can decide when a present participle adds to the parenthetical. But omit them when they are unnecessary. Break the habit.</p> <hr /> <p><a href="#_ftnref1" name="_ftn1">[1]</a> Antonin Scalia &amp; Bryan A. Garner, <em>Making Your Case: The Art of Persuading Judges</em> 132-33 (Thomson/West 2008).</p> <p><a href="#_ftnref2" name="_ftn2">[2]</a> <em>Id.</em> at 132.</p> <p><a href="#_ftnref3" name="_ftn3">[3]</a> 132 P.3d 352, 356 (2006).</p> <p><a href="#_ftnref4" name="_ftn4">[4]</a> 240 P.3d 868, 875 (2010).</p> <p><a href="#_ftnref5" name="_ftn5">[5]</a> 2017 COA 80.</p> <p><a href="#_ftnref6" name="_ftn6">[6]</a> 2017 COA 81M.</p> <p><a href="#_ftnref7" name="_ftn7">[7]</a> <em>The Bluebook: A Uniform System of Citation</em> R. 1.5(a)(i), at 59 (Columbia Law Review Ass’n et al., eds., 19th ed. 2010).</p> <p><a href="#_ftnref8" name="_ftn8">[8]</a> <em>People v. Henley</em>, 2017 COA 76, ¶¶16, 28-29.</p> <p>&nbsp;</p> <div style="border: 1px solid #999999; background-color: #dadada;"> <p><em>Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O&#8217;Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.<br /> </em></p> </div> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/hcP0mVt_46I" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/forging-new-writing-conventions-parentheticals-and-how-we-use-them/feed/ 0 http://cbaclelegalconnection.com/2018/05/forging-new-writing-conventions-parentheticals-and-how-we-use-them/ 2018-05-08 15:23 +00:00 2018-05-08 09:23 -06:00 http://cbaclelegalconnection.com/?p=38942 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/iJLv1L8n3Ww/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 5/7/2018 On Monday, May 7, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions. Tue, 08 May 2018 15:18:21 Z http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-7-2018/#respond Susan Hoyt <div class="pf-content"><p>On Monday, May 7, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.</p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-1424.pdf" target="_blank" rel="noopener"><em>Quintana v. Hansen</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-1349.pdf" target="_blank" rel="noopener"><em>Packard v. Goodrich</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-4124.pdf" target="_blank" rel="noopener"><em>Oviatt v. Reynolds</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-1222.pdf" target="_blank" rel="noopener"><em>Kerner v. City &amp; County of Denver</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="http://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/iJLv1L8n3Ww" height="1" width="1" alt=""/> http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-7-2018/feed/ 0 http://cbaclelegalconnection.com/2018/05/tenth-circuit-unpublished-opinions-5-7-2018/ 2018-05-08 15:18 +00:00 2018-05-08 09:18 -06:00