July 18, 2019

Archives for February 21, 2012

Colorado Supreme Court: Political Ads Did Not Constitute Express Advocacy and Therefore Groups Not Subject to Regulation as Political Committees

The Colorado Supreme Court issued its opinion in Colorado Ethics Watch v. Senate Majority Fund, LLC on February 21, 2012.

Campaign Finance—Express Advocacy.

The Supreme Court held that “express advocacy” is limited to speech that contains either the “magic words” as set forth in Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976), or to substantially similar synonyms as explained in League of Women Voters v. Davidson, 23 P.3d 1266, 1277 (Colo.App. 2001). The Court further held that none of the political advertisements at issue constituted express advocacy, and therefore neither the Senate Majority Fund nor the Colorado Leadership Fund was subject to regulation as political committees. Accordingly, the Court affirmed the court of appeals’ decision upholding the administrative law judge’s dismissal for failure to state a claim on which relief could be granted.

Summary and full case available here.

Spark the Discussion: Organize! The Rising Role of Unions in Colorado’s Medical Marijuana Industry

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Recently, the United Food and Commercial Worker’s Union, Colorado’s largest labor organization, announced it had unionized its first medical marijuana shop in Denver—with more than a dozen shops predicted to follow suit in the upcoming weeks.

According to Colorado’s UFCW President Kim Cordova, “the Union is committed to representing the hard working and compassionate workers in the Medical Cannabis retail centers and promoting guidelines to safeguard the interests of our members and the communities our members work in.”

What does it mean for Colorado’s medical marijuana industry to have union shops?

Colorado’s newest industry is in a tough position.  It faces near-constant attacks from various branches of the federal government including the IRS, Treasury, and, most recently, the Department of Justice.  Just last month, the United State attorney in Colorado, John Walsh, launched an attack on state-legal medical marijuana providers by sending 23 letters to centers, informing them that that were in areas deemed problematic by the federal government and would have to shut down in 45 days or face property seizure and criminal prosecution.

In the face of these mounting problems, the medical marijuana industry needs allies.  And they have found a powerful one in the Union.

At a basic level, labor unions allow workers to organize and engage in “collective bargaining” to promote better wages, benefits, and working conditions.  There is no denying the vast role that unions have played in positively shaping the American workforce with these organizations leading the charge to end child labor, secure a minimum wage and sick leave, and establish workplace safety measures as far back as the 1800’s.

But perhaps the most important role that unions play is their heavy influence over politics.  Beyond pushing for the interests of workers, unions have long been engaged in successful political campaigns, using lobbying and traditional campaign tactics to ensure the longevity of the industries they represent.  Through sophisticated political maneuvering, labor unions have played a crucial role throughout history in helping to establish and legitimize businesses—a lesson that medical marijuana shops may want to heed.   With the public backing of a state and national powerhouse like the UFCW, these fledgling businesses may be viewed in a new light by legislators, many of whom owe their elections in large part to the political backing of unions.

At the dawn of this new industry in Colorado, having mainstream partners such as labor unions may be crucial to the medical marijuana industry’s legitimacy and, quite possibly, its longevity.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

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.

It’s Final! Summary of Benefits and Coverage Required After September 23, 2012

Editor’s Note: This article was provided by Holland & Hart LLP. For other legal update articles from the firm, click here.

One of the provisions of Health Care Reform that is sure to impact employers is the required four-page summary of benefits and coverage. Often called the “SBC,” this form is in addition to the existing requirement to issue summary plan descriptions (“SPDs”). Until recently, the effective date for issuing the SBC was March 23, 2012. Thankfully, new guidance gives employers until at least September 23, 2012 to comply.

According to final regulations published February 14, 2012, insurance companies must provide SBCs to individual policy holders and to their insured employer plans starting September 23, 2012. Employer plans (self-funded and insured) must provide an SBC for open enrollment periods on or after that date (for calendar year plans, this will be for the 2013 plan year).

Along with the SBC, these new regulations require employer medical plans to provide employees and beneficiaries with a uniform glossary of terms commonly used in health insurance coverage (such as co-payment, deductible, home health care, etc.). In addition, the regulations include a new requirement to provide 60 days’ advance notice of material modifications. These provisions are also effective for open enrollments after September 23, 2012.

Colorado Court of Appeals: Psychosexual Evaluation of Boy Did Not Violate Rights; Due Process Not Violated as Boy Incompetent to Stand Trial

The Colorado Court of Appeals issued its opinion in Crowell v. Industrial Claim Appeals Office on February 16, 2012.

Juvenile Sex-Related Acts—Competency—Pyschosexual Management Plan—Self Incrimination—Due Process.

This case involves C.Y., a boy charged with having committed sex-related delinquent acts. After finding the boy incompetent to stand trial, the magistrate created a management plan requiring the boy to undergo a psychosexual evaluation. On review, the district court held that the boy should not be required to undergo the psychosexual evaluation. The judgment was reversed and the case was remanded with directions.

The boy was 11 years old when his 9-year-old sister reported to the police that he had grabbed her “butt” and “privates” many times over a four-month period. The boy suffers from significant mental and developmental disorders, including a serious brain injury, due in part to complications at birth. He lives with his mother and sister and receives extensive therapy and special education.

The boy was charged with having committed three delinquent acts that would constitute the adult offenses of aggravated incest, unlawful sexual contact, and assault in the third degree. He was released on bond to live with his mother. His sister initially was removed from the home, but after a safety plan was worked out, she returned.

The magistrate granted the request of the boy’s lawyer to have him evaluated to determine whether he was competent to stand trial. The magistrate found he was “incompetent to proceed to adjudication in this matter and cannot be restored to competency.” Following a hearing, a management plan was agreed on, except for a portion of the plan requiring the boy to undergo a psychosexual evaluation.

Several therapists and teachers who worked with the boy testified as to their concerns that he would not understand the evaluation or not be able to respond appropriately. The magistrate decided the boy should have the evaluation. The boy sought review of this decision and the district court agreed that the inclusion of the psychosexual evaluation in the treatment plan was legal error. The People appealed.

The Court of Appeals held that the magistrate’s order for a psychosexual evaluation did not violate the boy’s rights and that the district court erred when it set aside that part of the order. The Court looked to the legislative purposes of the Children’s Code. It also noted that CRS §19-2-1305(3) makes inadmissible evidence that is obtained during an evaluation or treatment related to the juvenile’s competency or incompetency. The privileges against compelled self-incrimination are not violated if, as here, juveniles are given immunity that is coextensive with the protections afforded by the Fifth Amendment.

The boy argued that the court undermined his due process right to be presumed innocent by requiring the psychosexual evaluation. The Court held that because the magistrate found that the boy is incompetent to stand trial and cannot be restored to competency, he will never stand trial. Therefore, the presumption of innocence was not implicated in requiring the evaluation.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.

Colorado Court of Appeals: Employer’s Failure to Obtain Medical Review Constituted a Continuing Violation with a Penalty at a Daily Rate

The Colorado Court of Appeals issued its opinion in People the Interest of C.Y. on February 16, 2012.

Workers’ Compensation—Medical Review—Failure to Act—CRS § 8-43-305—Rule 16-­10(B).

In this workers’ compensation proceeding, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) determining that the penalty imposed against Denver West Marriott and its insurer, New Hampshire Insurance Company, (collectively employer) was properly awarded based on a one-time violation, rather than a continuing violation. The order was set aside and the case was remanded.

Claimant suffered a deflated breast implant as a result of a 2008 industrial injury and had the implant surgically replaced in 2009. She gradually developed firmness, distortion, and discomfort in the breast. On March 31, 2010, an authorized treating physician (ATP) recommended further surgery to replace the implant a second time. On April 1, 2010, employer, without first obtaining a medical review by a different physician or other health-care professional, responded that the surgery was elective and not medically required. On October 7, 2010, the administrative law judge (ALJ) issued an order disagreeing with employer and determining that employer was liable for the second surgery. The ALJ imposed a penalty of $500 for employer’s one-time failure to act.

Claimant contended that the Panel erred in affirming the ALJ’s conclusion that employer committed a one-time violation. CRS § 8-43-305 provides that “[e]very day during which any employer . . . fails to comply with any lawful order . . . shall constitute a separate and distinct violation thereof.” The failure to provide medical review under Colorado Department of Labor and Employment Rule 16-10(B) is, as a matter of law, the type of ongoing conduct that triggers application of this continuing violation provision. Here, under the plain language of CRS § 8-43-305, employer’s failure to obtain a medical review constituted a continuing violation as a matter of law. Therefore, employer violated Rule 16-10(B) for 184 days, and the ALJ and the Panel erred in determining otherwise. The case was remanded for the ALJ to reconsider the amount of the penalty at a daily rate over this time period.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.

Colorado Court of Appeals: Case Remanded to Determine whether Delay in Filing Nonresident Cost Bond Was the Result of Neglect

The Colorado Court of Appeals issued its opinion in Rotz v. Hyatt Corp. on February 16, 2012.

Premises Liability—Non-Resident Cost Bond—Timeliness—Dismissal—Discretion.

In this premises liability action, plaintiff appealed the trial court’s judgment dismissing her action against defendant Hyatt Corporation for failure to timely file a nonresident cost bond pursuant to CRS §§ 13-16-101 and -102. The judgment of dismissal was reversed and the case was remanded.

Because plaintiff is a resident of Maryland and not Colorado, defendant moved for a cost bond pursuant to CRS §§ 13-16-101 and -102, under which a trial court may require a nonresident plaintiff to file a bond for the payment of the costs of the suit. On August 31, 2010, the trial court granted the motion and ordered plaintiff to file a cost bond in the amount of $5,000 within fourteen days. When plaintiff failed to file the bond or a motion for extension of time, defendant moved to dismiss the action pursuant to CRS § 13-16-102.

On September 23, 2010, plaintiff filed a cost bond and a response to the motion to dismiss. The trial court granted defendant’s motion and dismissed the action, concluding that, unless the plaintiff is indigent or the defendant waives its claim to the cost bond, “the court has no discretion regarding the filing of a cost bond by a nonresident plaintiff, and dismissal for his failure to do so is mandatory.”

Plaintiff contended that the trial court erred in holding that CRS § 13-16-102 mandated dismissal of the action and deprived it of discretion to accept the bond. Where a plaintiff is not a resident of Colorado, the court may order the plaintiff to file a cost bond “on or before the day in such order named.” The trial court retains discretion—even after the time set in an order pursuant to CRS § 13-16-102 expires—to grant additional time to file the bond. When making this determination, the court should consider all relevant facts, including whether plaintiff ultimately filed a cost bond and all circumstances surrounding plaintiff’s failure to file or late filing of the bond. Because the trial court misunderstood the scope of its discretion, the judgment of dismissal was reversed and the case was remanded to the trial court to determine whether plaintiff’s delay in filing the cost bond was the result of neglect.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.

Colorado Court of Appeals: Statute of Limitations Was Extended by Partial Payment Doctrine; Defense of Laches Not Applicable to Bar Claim to Recover on Promissory Note

The Colorado Court of Appeals issued its opinion in Vessels v. Hickerson on February 16, 2012.

Promissory Note—Partial Payment Doctrine—Laches—Statute of Limitations.

In this action brought to recover on a promissory note, plaintiff Thomas J. Vessels, acting as personal representative of the estate of his deceased mother, Mary Walsh Vessels, appealed the trial court’s judgment in favor of defendant Alva J. Hickerson. The judgment was reversed and the case was remanded.

In a promissory note dated April 13, 1989, Hickerson promised to pay plaintiff’s father’s company, Vessels Oil & Gas Company (VOGC), $386,063 to settle an outstanding debt. By its terms, the note was due in full in ten years, on April 12, 1999, and was to be paid in monthly installments of $5,103.75. The note was secured by Hickerson’s royalty interest in an oil and gas lease located in Louisiana. Under the terms of the note, Hickerson agreed to make payments to VOGC from “cash or other proceeds” generated by his royalty interest in the Louisiana oil and gas lease, and Hickerson assigned his royalty interest to VOGC. Thereafter, the operators of the Louisiana oil and gas well made payments on the note directly to VOGC, bypassing Hickerson entirely. Between 1989 and 2009, the well operators, on behalf of Hickerson, made partial payments on the note; however, these payments often were insufficient to cover the amount due under the note’s monthly installment plan.

Eventually, VOGC assigned the note, and the estate of the deceased note holder (Vessels) sued Hickerson for the remaining amount due on the note. Although the trial court found that the lawsuit was timely filed pursuant to the statute of limitations, the court dismissed with prejudice all of Vessels’s claims and entered judgment in favor of Hickerson based on laches.

On appeal, Vessels contended that the trial court erred, as a matter of law, in ruling that laches is available as a defense to his legal claim under the note filed within the statutory limitations period. Under the partial payment doctrine, every time a debtor makes a partial payment, the debtor is acknowledging the existence of the debt for which the law implies a new promise to pay, thus starting the limitations period anew. Here, the fact that Hickerson did not personally make the payments on the note was immaterial, because he had authorized the well operators to make payments on his behalf. Therefore, the well operators’ partial payments were sufficient to invoke the partial payment doctrine. Because the applicable statute of limitations was extended by the partial payment doctrine, not by equitable tolling principles, and the claim was filed within the period of the applicable statute of limitations, the trial court erred in ruling that the equitable defense of laches was applicable to bar Vessels’s claim to recover on a promissory note. The judgment was reversed and the case was remanded for entry of judgment in favor of Vessels and for a determination of Vessels’s reasonable attorney fees as allowed under the terms of the promissory note.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.

Colorado Court of Appeals: Attorney Who Continues Representing Client After Firm Dissolves Does So on Firm’s Behalf; Contingent Fee Subject to Fee-Sharing Agreement at Time of Dissolution

The Colorado Court of Appeals issued its opinion in LaFond v. Sweeney on February 16, 2012.

Limited Liability Company— Attorney—Contingency Fee—Dissolution.

Defendant Charlotte N. Sweeney appealed the trial court’s judgment in favor of plaintiff Richard C. LaFond. The judgment was reversed and the case was remanded to the trial court for further proceedings.

LaFond and Sweeney are attorneys who formed a firm that was organized as an LLC. After forming the LLC, LaFond and Sweeney orally agreed to share equally in all the firm’s profits, without regard to who brought cases into the office or who did work on them. LaFond brought a contingent-fee case (Maxwell) into the law firm, and considerable work was done on the case. The law firm dissolved on June 1, 2008, and LaFond continued to represent Maxwell. However, there was no written agreement that generally described how the law firm’s assets should be distributed after dissolution. The trial court ultimately awarded Sweeney $298,589.94 of the Maxwell settlement, based on an hourly valuation of attorney time and costs expended by the firm as of June 2008.

Sweeney argued that the court employed the wrong legal standard for calculating the value of the Maxwell case, and that she and the law firm are entitled to half the entire contingent fee awarded in the Maxwell case. An attorney who carries on the representation of a client on an existing case after a law firm dissolves does so on the firm’s behalf. Thus, income received by a member for completing any unfinished business belongs to the dissolved firm. Absent a contrary agreement, members of a law firm organized as a partnership or an LLC cannot convert ongoing client matters to new firm business, and a contingent fee earned during the dissolution of an LLC is subject to the fee-sharing arrangement that existed at the time of dissolution. Here, Maxwell did not seek new counsel after the firm dissolved. Rather, LaFond continued to represent Maxwell. By doing so, LaFond had a duty to complete unfinished business of the dissolved law firm, including continuing to represent Maxwell. Additionally, Maxwell was required to pay the contingent fee when the case settled, rather than a fee based on quantum meruit, because the agreed on legal services had been completed. Therefore, the contingent fee allocated to LaFond in the Maxwell case is the law firm’s asset. Because LaFond and Sweeney orally agreed to share equally in all the firm’s profits, without regard to who brought cases into the office or who did work on them, each is entitled to an equal share of the contingent fee obtained by LaFond in the Maxwell case.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.

Colorado Court of Appeals: Raising Affirmative Defense of Medical Use of Marijuana, Defendant Validly Waived His Privilege from Invasion into Private Medical Affairs

The Colorado Court of Appeals issued its opinion in People v. Sexton on February 16, 2012.

Possession—Medical Marijuana—Doctor–Patient Confidentiality—Waiver—Affirmative Defense—Medical Use—Search Warrant—Veracity—Probable Cause—Motion for Acquittal—Right to Remain Silent.

Defendant appealed from the judgment of conviction entered on a jury verdict finding him guilty of possession of eight ounces or more of marijuana. The judgment was affirmed.

Defendant argued that the trial court erred in holding that CRS § 13-90-107, rather than CRS § 18-18-406.3, governs a medical marijuana patient–defendant’s waiver of doctor–patient confidentiality during criminal trial proceedings and that defendant’s written waiver was required for the physician to testify. CRS § 13-90-107(1)(d) protects a patient from unauthorized invasions into his or her private medical affairs. CRS § 18-18-406.3(5) deters those with lawful access to the medical marijuana patient registry from using it for unlawful purposes. By raising the affirmative defense of medical use, defendant validly waived his privilege under CRS § 13-90-107(1)(d). Thus, the physician’s rebuttal testimony concerning his conversations with defendant was a lawful disclosure under CRS § 13-90-107(1)(d). Accordingly, the written waiver requirements of CRS § 18-18-406.3(5) simply did not apply.

Defendant argued that the search warrant was void for lack of veracity and absence of probable cause. The search warrant did not lack veracity or probable cause, because the allegations of possible illegal activity in the affidavit were based solely on the detective’s aerial observations, and the affidavit reflected that the detective had fifteen years of experience and training in identifying marijuana grow operations. Further, the fact that the affidavit concluded that defendant’s grow operation was only “potentially” illegal did not undermine the finding of probable cause.

Defendant also contended that the trial court erred by denying his motions for acquittal. However, the evidence presented was insufficient to reach the conclusion that defendant’s extended plant count was medically necessary.

Finally, defendant contended that one of the witnesses improperly commented on his right to remain silent. However, defendant’s refusal to answer one question did not invoke his right to remain silent as to all questions asked of him.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.