July 22, 2019

Archives for November 1, 2012

Beat the Crowds on Election Day—Early Voting and Mail-In Ballots

It may seem distant now, but last year at this time the election focus was on Egypt and the elections in that country. Citizens lined up in very long queues to have the opportunity to vote for their leader. The images are striking, representing the sanctity of choice and election.

In this country, we do not usually have to wait in lines longer than city blocks in order to cast our votes. Poll centers are conveniently located, and we even have early voting and mail-in ballots. Still, there are frequently lines on Election Day, some that may seem interminable.

If you would prefer to avoid the lines on Election Day, there are some excellent options. Early voting locations are scattered throughout Colorado; click here to find one in your county. You can find your Election Day voting location here as well.

Mail-in ballots are another great way to beat the crowds. If you requested a mail-in ballot, you have until 7 p.m. on November 6, 2012 to get it to a drop off center. If you already mailed your ballot in and it has been returned for correction, you can submit your corrected ballot any time up to 7 p.m. on November 6. You can even track the progress of your mail-in ballot at www.govotecolorado.com.

If you are undecided on the ballot issues and would like more information, you can get the official Blue Book 2012 here. Or, for information on judicial retention, go to the Know Your Judge website. Another good website, Just Vote Colorado, provides nonpartisan information and resources. Vote early, vote by mail, vote on Election Day—just vote.

Colorado Court of Appeals: Handcuffed Juveniles in Back of Sheriff Transport Van Were Under Control of Sheriff; Colorado Governmental Immunity Act Waived

The Colorado Court of Appeals issued its opinion in Young v. Jefferson County Sheriff on Thursday, October 25, 2012.

Governmental Immunity—Automobile Accident in Sheriff’s Transport Van.

Defendants, the Jefferson County Sheriff and Deputy Sheriff, appealed the district court’s order denying their partial motion to dismiss the complaint filed by plaintiffs Michael Young (as father and next friend to D.B.) and Amy Larson (as mother and next friend to D.L.) on governmental immunity grounds. The order was affirmed.

Plaintiffs brought this case to recover damages for injuries sustained by D.B and D.L. (juveniles) during an automobile accident while they were handcuffed passengers in a sheriff transport van. The Deputy Sheriff was driving, and plaintiffs alleged he negligently operated the van by failing to secure the handcuffed juveniles with seatbelts. They also sought damages under the doctrine ofrespondeat superior.

Defendants moved for partial dismissal of the complaint under CRCP 12(b)(1) for lack of subject matter jurisdiction, asserting immunity under the Colorado Governmental Immunity Act (CGIA). They argued that securing passengers in a van was not an activity that fell within the CGIA’s waiver of immunity for the “operation of a motor vehicle.” Plaintiffs noted the juveniles were in the Sheriff’s custody when being transported; they were in handcuffs but not secured by seatbelts; because of the handcuffs, they did not have reasonable access to seatbelts; and they were thrown about the van in the accident.

The district court found that physically securing the juveniles was a function controlled by the driver because they were handcuffed. Therefore, the failure to secure them fell within the waiver of immunity. Defendants brought an interlocutory appeal.

CRS § 24-10-106(1)(a) provides waiver of governmental immunity in an action for injuries resulting from “[t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee in the course of employment.” The court previously concluded that “operation” is a “broad term which includes both the physical defects of a motor vehicle and its movement, as well as other actions fairly incidental to those defects or movements.”

Here, the juveniles alleged they were dependent on the van driver to secure them because they were handcuffed. The Court agreed with the district court that securing the handcuffed juveniles with seatbelts was a function controlled by the van driver. The failure therefore fell within the waiver of immunity. The order was affirmed.

Colorado Court of Appeals: Successfully Completed Deferred Judgment Constitutes Conviction for Purposes of Sealing Statute

The Colorado Court of Appeals issued its opinion in In the Matter of the Petition of Harte and Concerning Routt County District Court on Thursday, October 25, 2012.

Sealing Records for Alcohol-Related Driving Offense.

Petitioner appealed from the trial court’s order denying her petition to seal her arrest and criminal records. The Court of Appeals addressed whether, under CRS § 24-72-308 (sealing statute), a successfully completed deferred judgment constitutes a conviction. The Court held that it does and, therefore, affirmed the order.

Petitioner was charged with driving under the influence of alcohol. Pursuant to a plea agreement, she pleaded nolo contendere and received a twelve-month deferred judgment and sentence, which she successfully completed. The case was dismissed.

Petitioner petitioned the court to have her arrest and criminal records sealed pursuant to the sealing statute. The court denied the petition without a hearing, concluding that “entry of a guilty plea . . . even pursuant to a stipulation for a deferred judgment, constitutes a conviction and precludes sealing.”

On appeal, petitioner argued that because she successfully completed her deferred judgment and sentence, resulting in the dismissal of her case, she does not have a “conviction” under CRS § 42-4-1301. Therefore, the alcohol-related driving offense exception does not apply to her.

The sealing statute does not define “conviction.” The Colorado Supreme Court recently interpreted “conviction,” as used in the sexual offense exception to the sealing statute, to include a successfully completed and dismissed deferred judgment. In the penalty section of the DUI statute, “conviction” is defined, in part, as including “having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.” The Court disagreed with petitioner’s argument that this definition should be imported into the alcohol-related offenses exception to the sealing statute.

The meaning of the word “conviction” depends on the statutory section in which it is used and can vary. The two statutes have different purposes. Neither statute cross-references the other. The relevant legislative history of the amendments to the DUI penalty statute indicates no intent that the definition apply to another statute. The statutes do not conflict and therefore do not need to be reconciled. Accordingly, the order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Delivery Drivers Were Under Control and Direction of Employer and Were Therefore Employees

The Colorado Court of Appeals issued its opinion in Western Logistics, Inc. v. Industrial Claim Appeals Office on Thursday, October 25, 2012.

Unemployment Tax Liability—Covered Employment Under CRS § 8-70-115.

In this unemployment tax liability case, petitioner Western Logistics, Inc., doing business as Diligent Delivery Systems, (Diligent) sought review of an order of the Industrial Claim Appeals Office (Panel). The Panel affirmed a hearing officer’s decision that services performed for Diligent by certain individuals constituted covered employment under CRS § 8-70-115. The Court of Appeals affirm the Panel’s order.

Based on an audit covering the 2008 and 2009 calendar years, respondent, the Division of Employment and Training (Division), issued a liability determination concluding that approximately 220 delivery drivers (drivers) were in covered employment with Diligent. Diligent was directed to report payments made to the drivers and to pay corresponding unemployment premiums.

Diligent appealed. The hearing officer made extensive factual findings, concluding that notwithstanding written contracts designating the drivers as independent contractors, the evidence demonstrated that was “not true in fact.” The officer found none of the drivers was “customarily engaged in a delivery business” and they “received direction and control” from Diligent. On review, the Panel affirmed, primarily based on the finding that the drivers were not customarily engaged in independent delivery businesses. On appeal, Diligent argued the Panel’s decision was not supported by substantial evidence. The Court disagreed.

The Court noted that to satisfy the “independent business” requirement, a worker generally must be shown actually, customarily, and contemporaneously to have provided similar services to others. Substantial evidence in the record supports the hearing officer’s

ultimate finding that Diligent failed to meet its burden of demonstrating that the drivers were truly engaged in independent delivery businesses and therefore it will not be disturbed on appeal.

Diligent also argued that the parties submitted specific evidence concerning roughly 10% of the drivers, and for the remaining drivers, the only evidence presented was the written contract stating they were engaged in a delivery business. Therefore, Diligent claimed that the “only permissible conclusion” as to these drivers is that they were customarily engaged in independent businesses. The Court disagreed.

The hearing officer’s express finding was that the written contracts did not accurately describe the relationship between Diligent and the drivers. Diligent was making an argument of evidentiary weight that is within the hearing officer’s discretion.

The Court also found that the decision was sustainable independently and separately based on the officers’ conclusion that Diligent failed to show the drivers were free from its control and direction. Substantial evidence supported this finding and the Court therefore will not disturb it. The Panel’s order was affirmed.

Summary and full case available here.

Tenth Circuit: Settlement Agreement Is a Defense, Not a Bar to Federal Subject Matter Jurisdiction

The Tenth Circuit issued its opinion in Rural Water District No. 2 v. City of Glenpool on Tuesday, October 30, 2012.

The plaintiff, Rural Water District No. 2 (the district), is a rural water provider covered by 7 U.S.C. § 1926(b), which prohibits other water utilities from encroaching upon services provided by federally indebted water associations. After the defendant City of Glenpool annexed land covered by the district and constructed water lines to the area, lawsuits ensued and the parties entered into a settlement agreement. As part of the settlement agreement, the defendant agreed to make payments to the district and the district “agreed it would not claim any § 1926(b) exclusive right to provide water service in the ‘area of agreement’ during the period of the Settlement Agreement except in the case of Defendants’ default.”

After an audit, the district sent a notice of default to the defendants and filed suit asserting its § 1926(b) right to be the exclusive provider of water in the contested area and alleging defendants were selling water within the area. Defendants filed a motion to dismiss based on lack of subject matter jurisdiction, citing two alternate grounds. The district court dismissed without opinion.

In the Tenth Circuit, defendants argued that even thought the plaintiff had alleged a federal statutory cause of action under § 1926(b), the court had no subject matter jurisdiction until a state court ruled on the breach of the settlement agreement. The court held that the settlement agreement could be raised as affirmative defense; it was not a bar to federal subject matter jurisdiction.

The defendants also argued that the district’s claim was not ripe because a state court had not decided the breach of settlement agreement claim. The Tenth Circuit found the claims were ripe because the alleged acts were not speculative or uncertain; they had already occurred. The court reversed the district court’s dismissal.

Tenth Circuit: Unpublished Opinions, 10/31/12

On Wednesday, October 31, 2012, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

United States v. Diaz

In re Smith

Villa v. Dona Ana County

Patterson v. Williams

United States v. Reeves

Kilgore v. Weatherly

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

Tenth Circuit: Unpublished Opinions, 10/30/12

On Tuesday, October 30, 2012, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Jobira v. Holder

Coburn v. Regents of University of California

Lin v. Holder

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