Tag Archives: law

Letter to Town of Basalt

The Aspen Daily News has a story today on the revised demands of the Workers for Justice and Diversity in Basalt. Yesterday I posted WJDB’s official statement.

The letter I wrote yesterday to the attorney for the Town of Basalt, Tom Smith, is below in its entirety. One thing to note is that I am ethically prohibited from contacting Town Manager Mike Scanlon or others at Town Hall directly because they are represented parties.

Tom,

It is disheartening to read in the Aspen Daily News today that the Town has decided to punish our clients for hiring an attorney. There is no ethical, moral or legal principle to support the Town’s refusal to speak with our clients. The glaring problem with that strategy is that Section 16-418 requires relocation assistance regardless of whether a resident is represented by legal counsel. If the Town refuses to pay our clients, then 45% of their homes will need to be replaced.

As I’ve repeatedly said and wrote, we’re not a law firm that shoots first and aims later. We do not want to file a lawsuit against the Town or the Roaring Fork CDC. However, there are a number of legal issues that arise because of the Town and the CDC’s own actions. For example, there is a potential claim of promissory estoppel for our clients. And there is also a possible ex post facto issue with Section 16-418 that we have yet to fully examine. That said, we have held off on drafting a complaint with the hopes that the Town would work with us. The below assumes that the Town will realize its mistake in cutting off communication with our clients and work with us to find a solution for this unfortunate situation.

First, Fidel Castillo and Maribal Canas have mobile homes that can be moved. The rest of the residents are in trailers that, for various reasons, cannot be relocated. We look forward to working with the Town to find vacant land for Fidel and Maribal, and proper alternative housing for the rest. As you know, Section 16-418 has a presumptive formula. To date, the Town has taken the position that there can be no deviation from that formula. However, that position is not supported by the language of Section 16-418.

The value of the home, whether it can be moved and who pays for the relocation or demolition of a home are certainly relevant factors. They aren’t the end of the analysis. The Town Council can consider “unusual circumstances” that justifies additional compensation. See, e.g., Section 16-418(b)(1)(B). We are in the process of putting together our reasons why each resident deserves additional compensation, but as a general matter, we can say that these reasons will include being elderly and having a more difficult time moving, having children of school-age, having long-term ties to the Pan & Fork, having larger families that make moving to suitable other housing difficult, and other similar circumstances. Those reasons are separate from the issue of whether they were promised alternative/replacement housing that has yet to come to fruition. The very fact that these persons have made the determination to seek legal representation and to let the Town know that they do not believe the formula to be sufficient may constitute “unusual circumstances” in and of itself.

You have previously stated in the paper that the Town has a moral, ethical and legal obligation to treat our clients the same as previous residents who have already relocated. Your statement is contradicted by the Town’s statements that they recognize that each individual has their own particular circumstances. It is also contradicted by the Town’s position as stated in today’s Aspen Daily News. As a practical matter, it makes no sense to treat each person the same, not least of all because the persons that previously accepted relocation assistance may have done so without full knowledge of their other options. From our view, getting this matter resolved in a cooperative fashion will require an acknowledgement by the Town that they need to view each resident as a person and not just part of an arbitrary equation.

Second, all of our remaining clients have children that are currently in school. One of our chief concerns for these children is that the threatened eviction on April 1 comes at a time when school will not yet be out of session. Switching to another school that late in the year will unnecessarily inflict a severe hardship or even potential impossibility on these children’s ability to maintain their all-important education. Certainly, when the Town signed the construction contracts for April 1, it knew or should have known that it would have severely adverse impacts on these children. For this reason, we request that, at the very least, the Town agree in writing to extend the leases or to refrain from attempting eviction procedures until Friday, June 13, 2014, which is 9 days after the end of the school year. This will give these children and their families sufficient time to first concentrate on their education and then prepare for moving, if they must move at that point. We also believe that this school-year issue raises issues of “unusual circumstances” that could be addressed through the dictates of the ordinance.

As repeatedly stated, both in this missive and elsewhere, we do not want to engage in needless litigation and truly hope to work with the Town. However, in the event that our clients are forced to fight their evictions, one key component of that battle will be the school issue. Regardless of whether litigation is necessary, the court of public opinion will likely not look too kindly on the Town’s decision to evict children during the school year.

As you are aware, in any action under the Mobile Home Park Act (including attempted eviction), the prevailing party is entitled to attorneys’ fees and costs.  Given that our clients will have compelling defenses to an eviction action, including an equitable or promissory estoppel theory and based on the issues raised by interruption of the school year, the Town will have to consider its potential exposure to fees and costs. It is our understanding that the Town paid a significant amount of attorneys’ fees for its battle with the Aspen Times; we hope the Town does not make the same mistake twice and waste funds that would otherwise be used for affordable housing or relocation assistance. Of course, none of that will be necessary if we can find common ground and help these people move in a fair and timely manner.

Third, I have a number of concerns with the attached “Weekend Update” from Mike Scanlon. The suggestion that any of my clients or I are unwilling to work with the Town is inaccurate. If anything, your lack of response to my overture to settle last week and combative correspondence indicate that it is the Town that refuses to work with my clients for no other reason than they question the Town’s methodology. Moreover, Scanlon says that the residents will be offered less because they have hired us. That statement is puzzling because, as noted above, there is nothing in Section 16-418 or the leases you provided or elsewhere that supports offset. If you have support for the concept of offset, please let us know.

Contrary to the representations that Mr. Scanlon made to the Aspen Daily News and you appear to have made to the Town Council, litigation is the last resort for our clients and would only be necessary if the Town remains as inflexible as it appears to us. Cooperation and compromise are two-way streets and right now we feel that we are walking the wrong way down your one-way street. As appearances may be deceiving, please let us know if we are reading the situation incorrectly.

Most concerning is the disconnect between Mike Scanlon’s statement that he would stake his professional reputation on getting our clients into affordable housing and the Town’s commensurate refusal to reduce that promise to writing. As you know, a promise need not be in writing and we believe that Mr. Scanlon’s statement to that effect (and others like it, either in the press, in Town Council meetings, or directly to our clients) constitutes a promise, the breach of which is actionable.

Again, since we want there to be no confusion, it is not our first or even second intention to engage in litigation. On Friday, I asked you to provide me the contracts for Jose Ramos. We are trying to advise him of what he’s signing so he can do what the Town wants: voluntarily leave the Pan & Fork. It is completely illogical for the Town to now refuse to work with us to help Mr. Ramos move. We hope the Town will reconsider it’s position so that at least Mr. Ramos and his family can start a new chapter in their lives.

In sum, our representation of WJDB is centered on one principle: to make sure that our clients are being treated fairly and are given the best help possible under the circumstances, whether monetary or otherwise. You and the Town appear to view our involvement as a threat, but our presence should not be concerning to the Town unless the Town is attempting to act in an untoward manner. By failing to consider alternatives, the Town is creating an issue where one need not exist.

We understand that the position of the Town is that no promises were made to our clients regarding affordable housing. Our clients certainly do not agree with this position, but perhaps that is beside the point for the moment. The Town is acting in a way that is consistent with a promise to provide affordable housing or relocation assistance. If we can capitalize on that momentum  and work together to determine solutions that meet the disparate needs of our clients, we will be able to avoid conflict and move forward in a way that is beneficial to everyone.

Best, Ryan

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DUI, Divorce and Marijuana Laws in 2014

Welcome to 2014. New laws are now in effect for Aspen DUIs and Vail DUIs, especially how those cases are handled with the Colorado DMV. Read more here.

In addition, those filing for divorce must aware that Colorado now has a significantly different law on how maintenance/alimony is analyzed in 2014 and beyond. Make sure your Aspen divorce lawyer knows about the change. To see more about the amendments, click here.

Finally, as has been widely reported in the news, recreational marijuana is now perfectly legal in Colorado. By all accounts, the transition went smoothly. There are no retail marijuana stores currently open in Garfield County or Aspen. They are coming, though.  Contrary to other mountain communities, both Vail and Eagle County are holding off on allowing recreational marijuana for now.

We are in the midst of Aspen’s prime tourism season. It will be interesting to see the effect of “marijuana tourism” in Aspen next year.

New Colorado DUI Laws for 2014

Starting  Jan 1 next week, several new laws  go into effect for DUIs in Colorado. First, a driver will be able to challenge the basis for a police officer’s stop at a DMV hearing. I’ve written before about DMV hearings, but have yet to cover a terrible case – Francen v. Colo. Dept. of Revenue – from July 2012 for those accused of drunk driving.

In Francen, the Colorado Court of Appeals held that the legality of the police officer’s initial stop was irrelevant for determining whether a driver’s license should be suspended. As a result, a driver had little hope other than an officer skipping a DMV hearing in keeping their license.

The new law, C.R.S. 42-2-126(8)(h) & 42-2-228, overrules Francen and allows a driver to contest the validity of the initial stop. Among DUI lawyers, the law is called the “Francen Fix.” An example of the Francen Fix can be seen with a previous DUI case I worked on. My client still lost her license at the DMV hearing even though the criminal case was completely dismissed when I persuaded the Eagle County Judge that there was no “reasonable suspicion” for the Basalt Police officer to pull her over. The Francen Fix would have likely resulted in my client keeping her license.

The second change coming in 2014 is the “Interlock Bill.” Offered as House Bill 13-1240 and signed by Governor Hickenlooper at the end of May, the Interlock Bill gives some hope to those that refuse a chemical test when arrested for drunk driving. I’ve already covered Colorado’s Expressed Consent and authority for revoking a driver’s license.

As it stands today, a person that refuses a chemical test when arrested for their first DUI will lose their license for a year. There is no opportunity for a driver who refuses to get a probationary or restricted license. Draconian, I know. However, the new Interlock Bill  offers some breathing room in 2014 because a first-time refusal will allow a driver to apply for reinstatement after two months of no driving. The early reinstatement comes with a catch: the driver will have to install and use an interlock device for 2 years following reinstatement. These drivers are designated by Colorado law as “persistent drunk drivers.”

The Interlock Bill, which amends C.R.S. 42-2-132.5, also provides that a separate suspension for a conviction of DUI will run concurrent to a suspension for a refusal. A refusal and DUI each may result in revocation of a driver’s license. Previously, those suspensions would run consecutive, or stacked on top of one another. A driver that refused and was also convicted of DUI faced the prospect of a 2-year suspension. In 2014 and beyond, that same driver will likely be facing a 1-year revocation with the option to reinstate early using an ignition interlock device.

Finally, the Interlock Bill  lowers the bar for “persistent drunk drivers” who take a blood or breath test as part of a DUI. In 2013, a driver with a BAC over .170 is tagged as a persistent drunk driver and required to have an ignition interlock  device to drive for  2 years. Starting next week, a driver with a BAC of .150 will face that same penalty.

We’re in the midst of the holiday season. In the hoopla of celebrating, people make mistakes. If you’re accused of drunk driving and looking for an Aspen DUI attorney or a Vail DUI attorney, make sure they are familiar with the new changes to Colorado law.

Colorado Civil Union Act: Is there a difference between a civil union and marriage?

The Denver Post has a fairly extensive article covering the recently-passed “Colorado Civil Union Act” that’s headed for Governor Hickenlooper’s desk. As the Denver Post headline notes a civil union for a same-sex couple is different from marriage. That difference is non-existent for Colorado domestic-relations law.

The Civil Union Act provides that a civil union in Colorado will be treated essentially the same as marriage for purposes of a dissolution, separation or annulment. For example, a same-sex couple contemplating a civil union can enter into a pre-nuptial agreement. See C.R.S. 14-15-108. Colorado case law interpreting marital agreements will apply to agreements relating to civil unions. C.R.S. 14-2-307.5. And a divorce between same-sex couples will be treated the same as a dissolution of marriage of a man and woman in Colorado. See C.R.S. 14-10-106.5 & 14-15-115.

Nevertheless, we will have to wait and see whether the Colorado courts interpret the Civil Union Act differently for purposes of parenting rights, disposition of property, maintenance and the like. There will likely be some unintended consequences and wrinkles in the law that will crop up in the future.

The other interesting legal issues are noted below:

·         There’s a privilege for communications between same-sex partners. See C.R.S. 13-90-107.

·         Same-sex partners are now entitled to damages for wrongful death, emotional distress and other personal-injury claims. 

·         Probate and estate-planning aspects for civil unions are also treated fairly similar as a marriage between a man and woman.

·         A right to claim a homestead exemption or seek protection against attachment, execution and garnishment of property.

UPDATE (March 21): The Civil Union Act was signed into law today by Governor Hickenlooper.

Bailey v. United States

In Bailey v. United States, the US Supreme Court recently clarified its ruling in Michigan v. Summers (1982), which allows law enforcement officers to detain persons near or at a place subject to a search warrant, as limited to people in the immediate vicinity of the premises. The Supremes seem to be narrowing the broad discretion given to police officers in searching people and places under the Fourth Amendment in each case it considers.

For more analysis, check out SCOTUS.

IRMO Wiggins: Clarifying Procedures for Subpoena Duces Tecums

The Colorado Supreme Court recently clarified the requirements and proper procedure for the issuance of subpoenas under Rule 45 of the Colorado Rules of Civil Procedure in In re Marriage of Wiggins, 2012 CO 44. A party to a lawsuit may invoke the subpoena power of the court to require the attendance of a witness at a deposition, hearing or trial, and to acquire documents from that witness. A subpoena ordering a witness to produce documents is called a subpoena duces tecum, which is a Latin phrase meaning “bring with you under penalty of punishment.”

In Wiggins, the attorney for a husband involved in a divorce obtained sensitive documents from the wife’s former employer via a subpoena duces tecum without advance notice to the wife. Because the wife and her attorney were not provided notice, they could not object to the production of sensitive and potentially confidential documents. The court in Wiggins analyzed whether a witness may produce documents in advance of the time and place specified in a subpoena duces tecum.

Many attorneys erroneously believe that they can serve a subpoena duces tecum on a witness and obtain documents before ever notifying the other party.  This common practice is especially problematic in family law cases where parties can potentially inquire into topics ranging from the adverse party’s mental and physical health or income and assets. As a result, the American Academy of Matrimonial Lawyers (“AAML”) filed an amicus curie brief in Wiggins arguing that Rule 45 prohibited a party from obtaining documents in lieu of a witness appearing at a deposition, hearing or trial except upon agreement of all interested parties. The Colorado Supreme Court agreed with the AAML and unequivocally held that documents are to be produced only at a deposition, hearing or trial specified in a subpoena duces tecum unless the subpoenaed witness and all interested parties agree to alternate arrangement.