Dear Harvey: You Are the Spark that Started the #MeToo Movement

JOANNA L. GROSSMAN

Joanna L. Grossman, law professor at SMU Dedman School of Law, reviews how disgraced Hollywood producer Harvey Weinstein started the #MeToo movement. Grossman details the origins of the #MeToo movement, particularly Weinstein’s role, and describes how Weinstein’s despicable behavior helped to illuminate and begin to address sexual misconduct not only by individuals, but throughout entire industries.

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In re Rademacher v. Greschler

Citation: 2020 CO 4

Opinion Date: January 13, 2020

Judge: Gabriel

Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics

Plaintiff Carol Rademacher challenged a district court’s ruling that she impliedly waived her attorney-client privilege by filing a legal malpractice complaint close to the expiration of the two-year statute of limitations and by then contesting defendant Ira Greschler’s statute of limitations defense. Greschler served as Rademacher’s attorney on various matters for more than two decades. One of the matters in which Greschler represented Rademacher involved the settlement of potential civil claims that Rademacher had brought against a man named John Becker and his wife. Pertinent here, for approximately ten years, Rademacher and Becker were involved in an extramarital relationship. Becker’s wife ultimately confronted and assaulted Rademacher, after which Rademacher contacted the police. The Beckers and Rademacher entered into a settlement agreement, under which Rademacher agreed not to pursue any claims against the Beckers and to ask the Boulder District Attorney’s office to offer Ms. Becker a deferred sentence. In exchange for these promises, Becker executed a $300,000 promissory note payable to Rademacher. Becker stopped making payments, and Rademacher, still represented by Greschler, sued to enforce the agreement. A jury ultimately found for Rademacher, and Becker appealed. After Greschler had orally argued the case in the court of appeals but before an opinion was issued, Rademacher’s divorce attorney, Shawn Ettingoff, sent Greschler a letter “to convey [Rademacher’s] dissatisfaction with [Greschler’s] inadequate representation” in the dispute with Becker. The letter also noted that Greschler’s conduct in representing Rademacher “helped create and perpetuate a situation that may very well lead to the reversal of the judgment in [Rademacher’s] favor.” The court of appeals eventually ruled the agreement between Rademacher and Becker was void as against public policy. Rademacher thereafter sued Greschler, asserting, among other things, a claim for professional negligence (legal malpractice). Several months later, Greschler moved for summary judgment on this claim, arguing that it was barred by the applicable statute of limitations. The Colorado Supreme Court concluded that on the facts presented, Rademacher did not assert a claim or defense that either focused or depended on advice given by her counsel or that placed any privileged communications at issue. Accordingly, the Court further concluded Rademacher did not impliedly waive her attorney-client privilege in this case.

In re Colorado v. Kilgore

Citation: 2020 CO 6

Opinion Date: January 13, 2020

Judge: Samour

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics

The district court in this case sua sponte ordered the parties to exchange exhibits thirty days before trial. The State charged Joshua Kilgore with two counts of felony sexual assault. In the minute order it issued following the arraignment, the court indicated, among other things, that “exhibits [were] to be exchanged 30 days before trial” (“disclosure requirement” or “disclosure order”). The disclosure requirement was not prompted by a party’s request and appeared to have been part of the court’s standard case-management practice. A couple of months later, Kilgore filed an objection, arguing that the disclosure requirement violated his attorney’s confidentiality obligations, the attorney-client privilege, the attorney work-product doctrine, and his due process rights (including his right to make the prosecution meet its burden of proof, his right to a fair trial, and his right to the effective assistance of counsel). Furthermore, Kilgore argued Rule 16 neither required him to disclose, nor entitled the prosecution to receive, his exhibits before trial. The court overruled Kilgore’s objection, reasoning that requiring Kilgore to disclose his exhibits prior to trial would “foster efficiency and allow for a fair trial” without running afoul of his rights. Any exhibits not disclosed before trial, warned the court, would “not be used at trial.” Kilgore sought reconsideration of this ruling, but the court declined to alter it. Thereafter, Kilgore submitted a sealed motion detailing the specific reasons he opposed disclosing a particular exhibit. Despite having this additional information, though, the court stood by its earlier ruling. The Colorado Supreme Court concluded a district court could not rely on its case-management discretion to order disclosures that exceed the discovery authorized by Rule 16 of the Colorado Rules of Criminal Procedure, nor could a court require disclosures that infringe on an accused’s constitutional rights. In this instance, the district court erred in ordering Kilgore to disclose his exhibits before trial.

Graham v. Executive Director of Colorado Department of Corrections

Citation: 2020 CO 1

Opinion Date: January 13, 2020

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

In February 2018, plaintiff-appellant Jimmie Graham’s parole officer filed a complaint alleging that Graham had violated three conditions of his parole: changing his residence without permission; failing to report to the parole office as directed; and committing a new felony - escape. The allegation related to the commission of a new felony was dismissed after the escape case was dismissed. Graham then pled not guilty to the two remaining allegations. The issue his petition for habeas corpus presented for the Colorado Supreme Court’s review the parole board’s order confining Graham for more than ninety days as a result of his parole violations. The Supreme Court concluded the parole board exceeded its statutory authority, and that the district court subsequently erred in denying Graham’s habeas petition. Thus, the district court’s order was reversed. Because Graham has been confined well beyond the ninety days authorized by the version of the parole revocation statute in effect at the time of Graham’s parole revocation, the Supreme Court remanded to the district court with directions to grant the writ of habeas corpus, make the writ permanent, and order the Executive Director of the Colorado Department of Corrections and the Warden of Sterling Correctional Facility (collectively, “DOC”) to immediately release Graham to parole.

Martinez v. Colorado

Citation: 2020 CO 3

Opinion Date: January 13, 2020

Judge: William W. Hood, III

Areas of Law: Constitutional Law, Criminal Law

After pleading guilty to Driving While Ability Impaired, Quinten Martinez was sentenced to jail and probation under section 42-4-1307, C.R.S. (2019). The county court twice revoked his probation and resentenced him. Martinez has served 608 days in jail related to this offense, of which 458 stem from probation violations. Martinez appealed, asserting that the maximum jail sentence the court could impose was ten days. Martinez had moved for a stay of execution, which the trial court granted. By the time the stay entered, Martinez had already served 103 days of his 365-day sentence on the second revocation. After review, the Colorado Supreme Court concluded that when a defendant is sentenced to probation as part of his sentence for a second or subsequent DUI offense and then violates the terms of that probation, the sentencing court may impose all or part of the suspended 365-day jail sentence but can impose no more than 365 days cumulative jail time for all probation violations.

In re Ballot Title #74, & No.

Citation: 2020 CO 5

Opinion Date: January 13, 2020

Judge: Hart

Areas of Law: Constitutional Law, Election Law, Government & Administrative Law

In April 2019, Monica Colbert and Juliet Sebold sought to have titles set for eight ballot initiatives. Each of the proposed initiatives was designed to create an “Expanded Learning Opportunities Program” for Colorado children, but each included a different funding mechanism. The Title Board held a hearing on the eight initiatives; it declined to set titles for two, Initiatives #74 and #75, after concluding that both proposed initiatives contained multiple subjects in violation of the Colorado Constitution. The Colorado Supreme Court was asked, in its original jurisdiction, whether a statement in section 1-40-107(1)(c), C.R.S. (2019), that “[t]he decision of the title board on any motion for rehearing shall be final, except as provided in subsection (2) of this section, and no further motion for rehearing may be filed or considered by the title board” – meant what it said. The Court responded, “yes”: Section 1-40-107 contemplated only a single Title Board rehearing on a proposed initiative title. The Court therefore affirmed the decision of the Title Board declining to consider a motion for a second rehearing on Proposed Initiative 2019–2020 #74 and Proposed Initiative 2019–2020 #75.

Parental Responsibilities Concerning W.C.

Citation: 2020 CO 2

Opinion Date: January 13, 2020

Judge: Brian D. Boatright

Areas of Law: Family Law

Mother, Kimberly Nanke, filed a petition requesting an allocation of parenting responsibilities to her child, W.C. The trial court ultimately entered permanent parenting responsibility orders, granting Mother sole decision-making responsibility and making her the primary residential parent. Father, Winston Conkling, appealed. While his appeal was still pending, however, Father filed motions to modify the orders in the trial court, alleging changed circumstances. This raised the question of whether the trial court had jurisdiction to modify the very orders that were on appeal. The trial court believed that it did not have such jurisdiction; a division of the court of appeals disagreed. After its review, the Colorado Supreme Court held that, because Father’s motions to modify were material to his appeal and sections 14-10-129(1)(a)(I), C.R.S. (2019), and 14-10-131(2), C.R.S. (2019), did not specifically grant trial courts jurisdiction to modify parenting responsibility orders while an appeal of the orders is still pending, the trial court here did not have jurisdiction to rule on Father’s motions to modify while those orders were on appeal. The Supreme Court concluded the court of appeals therefore erred in concluding the trial court retained jurisdiction to modify the orders during the pendency of Father’s appeal.