March 21, 2019

Archives for September 12, 2011

Larimer County Justice Center Hosting Blood Drive on Friday

The Larimer County Justice Center will be having a Blood Drive on Friday, September 16, 2011. The Garth Englund Donor Center requires that we have at least twenty people signed up for the blood drive to ensure they can come.

The Blood Drive will be held in the Jury Assembly room on the Second Floor of the Larimer County Justice Center from 8:00 am – 3:00 pm.

Walk-ins are welcome, but to help with planning and scheduling please stop by the JURY office on the second floor to sign up for a time. You can also e-mail or call to schedule an appointment: lori.johnson@judicial.state.co.us or (970) 498-6263.

Be sure to eat before donating and bring a picture ID with you!

Free Juice, Pretzels, and Cookies will be provided!

Sign up today to make the Justice Center Blood Drive successful!

Colorado Supreme Court: Jury Instruction Proper that People Did Not Bear Burden of Disproving Self-Defense when Also Instructed as to Elements of Reckless Manslaughter

The Colorado Supreme Court issued its opinion in People v. Pickering on September 12, 2011.

Criminal Law—Jury Instructions—Self-Defense.

The Supreme Court held that the trial court did not commit constitutional error by instructing the jury, pursuant to CRS § 18-1-704(4), that the People did not bear the burden of disproving that Pickering acted in self-defense when the court properly instructed the jury on the elements of reckless manslaughter. The court of appeals’ judgment was reversed.

Summary and full case available here.

Colorado Supreme Court: To Condemn Private Way of Necessity for Access to Property for Future Development, Scope and Purpose of Condemnation Must Be Presented

The Colorado Supreme Court issued its opinion in The Glenelk Association, Inc. v. Lewis on September 12, 2011.

Colo. Const. art. II, § 14—CRS § 38-1-1-2—Private Way of Necessity—Private Condemnation—Purpose—Indispensability—Trial Court Findings of Fact—Scope of and Necessity for Way of Necessity—Burden on Condemnee’s Property.

The District Court for Jefferson County dismissed a condemnation petition for a private way of necessity because the developer of the allegedly landlocked parcel did not sufficiently define the scope of and the necessity for the proposed condemnation. Evidence showed that the development might vary from one to thirty residential dwellings. Applicable roadway and easement requirements in Jefferson County mountain areas are based on how many lots will be served by the development.

The district court found that the developer’s failure to sufficiently define the purpose of the way of necessity prevented the court from entering a condemnation order that would minimize the burden to be placed on the condemnee’s property. The court of appeals ruled that the condemnation could proceed based only on the zoning of the condemnor’s property.

The Supreme Court disagreed with the court of appeals and reinstated the district court’s judgment. The Court held that, when a petitioner seeks to condemn a private way of necessity for access to property it wishes to develop in the future, it must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and the need for the proposed condemnation, so that the burden to be imposed on the condemnee’s property may be ascertained and circumscribed through the trial court’s condemnation order. The record in this case supported the trial court’s dismissal of the condemnation petition.

Summary and full case available here.

Colorado Supreme Court: Error to Determine that Single Circumstance of Filing Parenting-Time Motion Precluded Finding of Intent to Abandon

The Colorado Supreme Court issued its opinion in D.P.H. v. J.L.B., and Concerning A.B. on September 12, 2011.

Abandonment Determination—CRS § 19-15-203—Delay of Adoption Proceeding—Totality of the Circumstances—Parenting-Time Motion.

The abandonment inquiry focuses on whether, under the totality of the circumstances, the parent’s intent during the twelve months preceding the commencement of the adoption proceeding was to abandon the child. It is the trial court’s responsibility to consider the totality of the circumstances and to make this factual determination, which is to be disturbed only if it is clearly erroneous. Here, the evidence before the juvenile court of the father’s intent during the twelve-month period was conflicting. Therefore, it was error for the court of appeals to determine that a single circumstance—father’s filing of a parenting-time motion—precluded a finding of intent to abandon, essentially as a matter of law.

In addition, it is unnecessary for a trial court to delay adoption proceedings until a parenting-time motion in another court is resolved, as long as the trial court adequately considers the parenting-time motion in making its abandonment determination. Here, the court of appeals erred in holding that the juvenile court should have delayed the adoption proceedings until the father’s parenting-time motion was resolved. The court of appeals’ judgment was reversed and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Supreme Court: Legislative Reliance and Intent on Distinction Between “Elements” and “Sentencing Factors” Upheld

The Colorado Supreme Court issued its opinion in Lewis v. People on September 12, 2011.

Merger and Double Jeopardy Under CRS § 18-1-408—Federal Constitutional Presumption—State Legislative Intent.

Lewis petitioned for review of the court of appeals’ judgment affirming his convictions and sentences for a number of offenses, including three counts each of kidnapping and sexually assaulting his kidnap victims. In accordance with the holding of People v. Henderson, 810 P.2d 1058 (Colo. 1991), the trial court sentenced Lewis for sexual assault and separately sentenced him for the second-degree kidnapping of each victim, elevated to the level of a class 2 felony because of the sexual assault. The court of appeals rejected Lewis’s contention that Henderson should be overruled on the basis of subsequent U.S. Supreme Court case law and affirmed each of his separate convictions and sentences for sexual assault and class 2 felony kidnapping.

The Colorado Supreme Court granted certiorari with regard to the continued viability of Henderson and affirmed the judgment of the court of appeals. The Court found that although the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) that any distinction between an “element” and a “sentencing factor” is inconsequential for certain constitutional purposes, those holdings neither diminished the importance of legislative intent on Lewis’s double jeopardy and merger challenges nor undermined Henderson’s prior assessment of legislative intent. The Court reasoned that even if the Apprendi rationale were held to apply in the double jeopardy context, it could not alter the dispositive impact of legislative intent on the permissibility of multiple punishments at a single proceeding nor alter the fact of legislative reliance on the long-accepted distinction between elements and sentencing factors for drafting purposes in this jurisdiction.

Summary and full case available here.

Swift Appointed as New Chief Judge in Twelfth Judicial District

Colorado Supreme Court Chief Justice Michael L. Bender has appointed the Honorable Pattie P. Swift as the new chief judge in the Twelfth Judicial District, which serves Alamosa, Conejos, Costilla, Mineral, Rio Grande, and Saguache counties.

Judge Swift will replace Chief Judge O. John Kuenhold, who is retiring as of October 1, 2011. Judge Swift’s appointment will be effective as of that date.

Judge Swift began her judicial career when she was appointed to the Costilla County Court bench in 1989. She was appointed District Judge in 2002.

Colorado is divided into twenty-two judicial districts, each with a chief judge who serves as administrative head. Chief judges’ responsibilities include appointing the district administrator, chief probation officer, and clerks of the court, assisting in the personnel, financial, and case-management duties of the district, seeing that the business of the courts is conducted efficiently and effectively, and making judicial assignments within the district.

Click here to read the full release from State Judicial concerning the appointment.

Jennifer Gokenbach: Proposed Denver Paid Sick and Safe Time Ordinance – Nothing To Sneeze At

Promoting public health? Sounds good. Making sure working adults stay at home when they are sick? I’m on board. Flexible and supportive working environment? Of course, who doesn’t want that.

Voters in San Francisco, Washington D.C., Milwaukee, and Connecticut were motivated by these ideals when passing paid sick leave ordinances or bills in their cities or state (although Wisconsin Governor Scott Walker nullified Milwaukee’s bill after it was passed). You can bet voters in Denver, too, will be equally motivated by these ideals and the desire to help working families and low income wage earners when deciding Ballot Initiative 300 in November 2011.

But, what exactly is the proposed Denver Paid Sick and Safe Time Ordinance (PDF), and is it really a good idea for Denver? As with any new legislation, the text of the legislation itself is where the rubber meets the road so to speak, and provides critical insight into the protections afforded, as well as the possible unintended consequences.

Key Provisions of Denver’s Proposed Paid Sick and Safe Time Ordinance

  • Provides paid sick and safe time leave for all employees within the geographic boundaries of the City and County of Denver, including part-time and temporary employees, who work at least 40 hours a year (federal and state government employees and union members are exempt).
  • All Colorado employers who employ eligible workers in the City and County of Denver must comply, regardless of size, but new businesses are exempt during their first year of operation.
  • Paid leave would accrue at the rate of 1 hour for every 30 hours worked.
  • Large employers, defined as employers with 10 or more employees, must offer up to 72 hours, or 9 days, of paid leave each calendar year.
  • Small employers, defined as those with less than 10 employees, must offer up to 40 hours, or 5 days, of paid leave each calendar year.
  • Up to 72 hours, or 9 days, of paid leave may be carried over from year to year.
  • Paid leave may be taken after 90 days of employment, and may be taken in as few as 1 hour increments.
  • No advance notice is required for an employee to take leave.
  • No documentation is required until the employee takes 3 or more consecutive days off.
  • Employers cannot require employees to search for, or provide, a replacement worker to cover the hours missed.
  • Employers cannot “take retaliatory personnel action or discriminate” against employees exercising their sick and safe time rights.
  • Paid leave can be taken for:
    • An employee’s own mental or physical illness, injury, health condition, need for medical care or treatment, or need for a medical procedure or preventative medical care;
    • To care for an employee’s family member’s mental or physical illness, injury, health condition, need for medical care or treatment, or who needs a medical procedure or preventative medical care;
    • The closure of the employee’s place of business, or to care for a child whose school or place of care has been closed, due to a public health emergency;
    • To seek a civil protection order to prevent domestic abuse pursuant to Section 13-14-102, C.R.S.;
    • To obtain medical care or mental health counseling, or both, for the employee or employee’s children to address physical or psychological injuries from domestic abuse, stalking, sexual assault, or other crime involving domestic violence;
    • To make the employee’s home secure, or to seek new housing, due to domestic abuse, stalking, sexual assault, or other crime involving domestic violence; and
    • To seek legal assistance to address issues arising from domestic abuse, stalking, sexual assault, or other crime involving domestic violence, and attend or prepare for court-related proceedings.

Unclear and Potentially Troublesome Provisions

1.  Definition of “Family Member” Too Broad

Although seemingly modeled after the San Francisco and D.C. bills, Denver’s new paid leave ordinance includes a far broader definition of “family member” than any prior bill passed. It includes:

  • A person related by blood, marriage or legal adoption, including a child, parent, spouse, sibling, grandparent, or grandchild of the employee;
  • A foster child, parent, sibling, grandparent, or grandchild of the employee;
  • A child to whom the employee stands in loco parentis or for whom the employee is the legal guardian;
  • The employee’s domestic partner;
  • The spouse of an employee’s child, parent, sibling, or grandparent;
  • A legal guardian of the employee or a person who stood in loco parentis to the employee when he or she was a minor;
  • A parent of the employee’s spouse; or
  • Any other individual related by blood or affinity whose close relationship is equivalent to a family relationship.

The spouse of an employee’s sibling? Call me crazy, but I think it is a real problem to obligate a small business owner to provide paid time off for an employee to take his or her sister’s husband to a routine doctor’s appointment. Or, to leave open all the possible individuals covered under the vague phrase “any other individual related by blood or affinity whose close relationship is equivalent to a family relationship.” I wonder when we would see the first complaint involving a worker claiming that his or her college roommate is “like family.”

2.  Unclear How to Count Number of Employees or Who May Be Eligible

It is unclear how employers will be required to count their number of employees to determine the amount of leave benefits that must be offered.  The definition of employer includes all businesses in the State of Colorado.  But, the definition of an eligible employee is anyone employed within the geographic boundaries of the City and County of Denver.  So, for purposes of determining the amount of leave benefits, are employers required to count all employees in Colorado, or only those employed within the City and County of Denver?

Likewise, if employees need only be employed in the City of County of Denver for 40 hours a year to be eligible, is a worker whose main office is located elsewhere in Colorado, but who travels to Denver frequently throughout the year for deliveries or to conduct business, eligible for the mandated leave benefits?

3.  No Advance Notice Required

Where other paid sick leave bills expressly authorize employers to require reasonable notice to be given where practicable when an employee’s need for leave arises, Denver’s new proposed ordinance vaguely says that employers “may not impose unreasonable barriers to use of paid sick and safe time.”  What does that mean?  An “unreasonable barrier” in one instance could be reasonable under different circumstances.  The use of such vague language, rather than clear language allowing employers to require advance notice where practicable, in my view, tips the scale of this legislation away from fair and balanced, and only invites litigation.

4.  Employers Prohibited From Requesting Documentation

Additionally, where other sick leave bills allow employers to require appropriate documentation to support the leave to prevent abuse, Denver’s proposed ordinance prohibits employers from requesting any documentation, until after 3 consecutive days of absence.

5.  Employers Already Offering Generous Leave Benefits Not Necessarily Exempt

Finally, even though the new ordinance attempts to exempt employers who already provide vacation or personal time off (PTO) in an amount equivalent or greater than the mandated 9 (or 5) days of leave benefits, the rub is that employers must allow the vacation or PTO “under the same conditions as paid sick and safe time” – meaning that if the other leave benefits require prior notice or documentation, this new leave bank must be provided in addition.  This is another major difference between Denver’s proposed sick leave ordinance than those passed in San Francisco, D.C. and Connecticut. At least in those ordinances or bills, employers who offered more leave days than that legislatively mandated, were deemed in compliance, without all the other restrictions.

Food for Thought

The Agency for Human Rights and Community Relations (staffed currently by 10 people) in Denver would be responsible for implementing and administering this new law, taking complaints, conducting investigations, holding hearings, providing conciliation, issuing orders, and imposing fines. With only 10 individuals currently in the Agency, the implementation of this new ordinance along with a potential influx of complaints may likely require expansion, using already-tight taxpayer dollars.

Everyone knows that successful, long-term and mutually beneficial employment relationships require employees and employers to work together, and there are a multitude of good employers in Denver and throughout Colorado who bend over backwards to keep their workforce happy with generous benefit packages. I am certainly not advocating that employees come to work sick or face losing their job if their child is sent home from school sick.

But, is imposing overly broad, vague legislation with unusually restrictive obligations on large and small employers alike, however good in principal, what Denver needs in this economic climate? Governor John Hickenlooper and Mayor Michael Hancock say no, and it is now up to Denver voters to decide in November.

Jennifer Gokenbach is Of Counsel at Ogletree Deakins and focuses her practice on management side trial work and counseling on a wide range of employment law issues. She blogs at Colorado Employer’s Law Blog, where this post originally appeared on September 10, 2011.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Joe Lusk: Explore New Practice Areas with Co-Counseling Agreements

A co-counseling arrangement can allow a solo or small firm lawyer to explore new and complex areas of law.  Co-counseling agreements may also allow a lawyer to take on matters that he or she might not otherwise feel comfortable taking on.  The co-counseling arrangement does all of this, while significantly reducing the danger of committing malpractice. Consider the following situations:

  1. You are an experienced civil litigator and would like to branch out into criminal defense work.  A potential client who has been charged with a serious felony approaches you and you don’t feel comfortable taking this on alone as your first criminal case.
  2. You are an experienced criminal defense lawyer, but have never taken on a divorce matter.  A potential client approaches you with a new matter involving complex issues concerning the children and division of assets.  There are child abuse allegations on both sides, and the husband owns his own business that is worth several million dollars.
  3. You are an experienced civil litigator, who is approached with a multimillion dollar medical malpractice case.  Although you have litigated many personal injury cases, you have never even seen a medical malpractice case, and you have no medical background.

In the above scenarios, would you be inclined to take on these cases?  Would you have reservations about your ability to effectively represent your client?  If your answer to both of these questions is yes, you may want to consider a co-counseling arrangement with another lawyer who has experience in the areas of concern.  In fact, you may be required to do so – see Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000).

The two important written documents for the co-counseling arrangements are your fee agreement, which must authorize a co-counseling arrangement, and a co-counseling agreement with your co-counsel.

The fee agreement with the client should include not only your client’s authorization to hire co-counsel but also an authorization concerning the critical terms of the co-counseling agreement, including, perhaps most importantly, the fees for each of the lawyers.

The co-counseling agreement should be specific as to each lawyer’s role in the matter.  Specifically, the co-counseling agreement should identify which lawyer is the lead counsel (especially in the event of litigation); the fee arrangement for each lawyer; who is responsible for collecting fees; and the procedure for lawyers consulting with each other.  It is important to note that before entering into any co-counseling arrangement, both lawyers should have malpractice insurance in effect.  The representation of the same party should be reflected in the written co-counseling agreement.

In any type of litigation, the co-counseling agreement should identify whether each lawyer should review the pleadings for final approval before they are filed.

A co-counseling agreement can add variety to your practice, increase your number of colleagues, and allow you to see whether you might want to delve more into a new practice area.

Joe Lusk is an attorney with Boatright & Ripp, LLC in Wheat Ridge, Colorado. His practice includes emphases in personal injury and criminal defense. Joe chairs the Solo/Small Firm Section of the Colorado Bar Association and contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on August 30, 2011.

Tenth Circuit: Unpublished Opinions, 9/9/11

On Friday, September 9, 2011, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Unpublished

United States v. Garcia-Gutierrez

White v. Medina

Havenar, III v. Astrue

Stevens v. Medina

McGuire v. American Family Mut. Ins. Co.

United States v. Dowell

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.