June 19, 2019

Archives for May 2013

Colorado Anti-Discrimination Act Now Provides Remedies in Employment Discrimination Cases

Roseman, BarryBy Barry Roseman

In 2013, the Colorado General Assembly enacted remedies for the employment discrimination provisions of the Colorado Anti-Discrimination Act (CADA) that have been part of Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) for decades.

The bill, HB 13-1136, provides that Colorado employers found guilty of unlawful discrimination or retaliation, in violation of the CADA, can be held liable for compensatory damages, punitive damages and attorney fees. CADA cases also will be able to be tried to juries. The amounts that can be awarded for compensatory or punitive damages will depend on the size of the employer. Those caps are:

For employers with 1-4 employees: $10,000

For employers with 5-14 employees: $25,000

For employers with 15-100 employees: $50,000

For employers with 101-200 employees: $100,000

For employers with 201-500 employees: $200,000

For employers with more than 500 employees: $300,000

These remedies will not go into effect until 2015, and will apply only to discrimination or retaliation claims that are based on conduct in 2015 or later. Several groups will benefit the most from this bill:

  • Employees who work for smaller employers, who are not covered by Title VII, the ADEA or the ADA. Those statutes apply only to personnel decisions by companies with at least 15 employees (Title VII and the ADA) or at least 20 employees (the ADEA).
  • Employees who have claims not recognized under federal law, such as claims for discrimination because of sexual orientation or gender identity.
  • State employees in ADA and ADEA cases. The U.S. Supreme Court has held that the Tenth Amendment bars claims for monetary damages against State governments and State agencies under those statutes.
  • Employees who live and work far from the Denver area. Claims arising under federal law can be removed to federal court. Claims arising under state law will stay in state court, at least where diversity jurisdiction does not apply.

Public employees cannot recover punitive damages under CADA or under federal law. Employees of the State of Colorado who can file discrimination claims with the State Personnel Board (SPB), and private or public employees who bring claims in Colorado Civil Rights Commission (CCRC) hearings, will not be able to recover compensatory or punitive damages in CCRC hearings or compensatory damages in SPB hearings. Instead, if they prevail on liability in those hearings, those employees will have to file a civil action to try to recover those damages. The CCRC and the SPB will stay their proceedings, including appeal rights, for at least 30 days and possibly longer, to give employees an opportunity to file and prosecute those civil actions.

These amendments track provisions in federal law in several respects:

  • Employers that demonstrate that they acted in good faith to prevent discrimination cannot be held liable for punitive damages.
  • An employer cannot be held liable for punitive damages where that employer has established that it made good-faith efforts to provide a reasonable accommodation to an employee’s disability.
  • Employment discrimination that is unlawful because of the disparate impact of employment policies will not support an award for compensatory or punitive damages.

The courts also are to consider the size and assets of the employer and the egregiousness of its unlawful conduct in determining the appropriate level of damages.

In addition, the bill provides that it unlawful to discriminate against a person who is 70 years of age or older because of that person’s age. That has been part of the ADEA since the 1980s.

The delayed implementation of the bill will give smaller employers an opportunity to learn about CADA and to bring their employment practices into compliance, if they are not in compliance already. The CCRC also is required to establish a volunteer working group by September 1, 2013. That working group is to develop an education and outreach plan for employers, and to compile educational resources for employers. The CCRC shall make this information available to employers, including through its Web site.

Before this law was enacted, Colorado was one of only eight states – five of them in the South – that did not enable plaintiffs to recover compensatory damages, punitive damages or attorney fees in employment discrimination or retaliation cases. HB-1136 brought CADA, at long last, into the 21st Century.

Barry D. Roseman is a partner in the firm of McNamara, Roseman & Kazmierski LLP, and has been representing plaintiffs in employment cases since 1975. He currently serves as co-chair of the National Employment Lawyers Association’s (NELA) Judicial Nominations Committee. He served on NELA’s Executive Board between the organization’s founding in 1985 and 2007; is a former vice president of that organization; is one of the founders and is the chair of the executive board of NELA’s Colorado affiliate, the Plaintiff Employment Lawyers Association (PELA); and chairs PELA’s Legislative Committee. He also is a fan of the Colorado Rockies, in both good times and bad.

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.

Colorado Supreme Court: County Court Abused Discretion by Refusing to Consider Motion to Quash Subpoena Regarding Child Victim of Sexual Assault

The Colorado Supreme Court issued its opinion in In re People v. Brothers on Tuesday, May 28, 2013.

Subpoena—Motion to Quash—Preliminary Hearing—Child–Victim—Standing.

After the county court refused to consider a motion to quash the subpoena of an alleged child–victim of sexual assault before a preliminary hearing, the Supreme Court issued a rule to show cause. As a preliminary matter, the Court held that the district attorney has standing to move to quash the subpoena of a third-party alleged victim of sexual assault. The Court also held that the county court abused its discretion by refusing to consider the motion to quash before the preliminary hearing, because the alleged child–victim could suffer harm if required to appear at the preliminary hearing, even if he did not ultimately testify. The Court made the rule absolute.

Summary and full case available here.

Colorado Supreme Court: Public School Financing System Complies with Colorado Constitution

The Colorado Supreme Court issued its opinion in Lobato v. State of Colorado, Board of Education on Tuesday, May 28, 2013.

Education Finance—Constitutional Interpretation.

The Supreme Court held that the public school financing system complies with the Colorado Constitution, because it is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education. It also affords local school districts control over locally raised funds and therefore over “instruction in the public schools.” Accordingly, the Court reversed the trial court’s finding that the public school financing system is unconstitutional.

Summary and full case available here.

Colorado Court of Appeals: Indeterminate Sentence Appropriate for Sex Offender Even Though He Did Not Fall Under Sex Offender Lifetime Supervision Act

The Colorado Court of Appeals issued its opinion in People v. Jenkins on Thursday, May 23, 2013.

Sexual Exploitation of a Child—Indeterminate Probationary Term—Sex Offender Lifetime Supervision Act (SOLSA).

Defendant appealed the trial court’s order denying his Crim.P. 35(a) motion. The Court of Appeals affirmed the order.

In three cases, defendant was charged with having committed various felonies. In 2009, as part of a plea agreement, defendant pleaded guilty to charges in two of the cases. In the first case, he pleaded guilty to a drug-related felony, and the court sentenced him to prison for five years. In the second case, he pleaded guilty to one count of sexual exploitation of a child, which was a class 4 felony. The court sentenced him to an indeterminate term of ten years to life of sex offender-specific probation.

Defendant argued that the trial court erred when it sentenced him to an indeterminate probationary term of ten years to life even though he was not convicted of a sex offense subject to sentencing under the Sex Offender Lifetime Supervision Act (SOLSA). Defendant could be considered a “sex offender” if he “pleads guilty . . . to a sex offense” listed in CRS § 18-1.3-1003(4). The crime to which defendant pleaded guilty, however, does not appear in this section. Further, defendant could not have been sentenced as a sex offender under former § 18-1.3-1004(4)(a), because the sex offender evaluator in this case determined that defendant was neither a pedophile nor a predator. Because defendant did not meet either of the relevant definitions of a sex offender in SOLSA, he could not be sentenced to probation “for an indeterminate period of at least ten years . . . and a maximum of [his] natural life” under subsection 1004(2)(a). CRS § 18-1.3-1007(1)(a), however, creates an intensive supervision probation program for two classes of persons who have been sentenced to probation. One class includes sex offenders who are sentenced to probation under SOLSA. The second class includes persons who are not sex offenders under SOLSA, such as defendant, who have committed a sex-related offense but are not sentenced to probation under SOLSA. Therefore, because the trial court had the authority to sentence defendant to a probationary term that exceeded the “maximum period of incarceration authorized” for a class 4 felony, an indeterminate probationary term of ten years to life was not an illegal sentence.

Summary and full case available here

Tenth Circuit: Unpublished Opinions, 5/24/13 and 5/27/13

On Friday, May 24, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Turcios-Arrazola

No opinions were issued Monday, May 27, 2013 due to the Memorial Day holiday.

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

Tenth Circuit: Unpublished Opinions, 5/23/13

On Thursday, May 23, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

United States v. Cone

Murdock v. City of Wichita

Eldridge v. Berkebile

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

Colorado Court of Appeals: No Shreck Hearing Required for Admission of Fingerprint Evidence

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, May 23, 2013.

Voir Dire—Entrapment—Shreck Hearing—Expert Testimony—Fingerprint Evidence—Prior Conviction—Burden of Proof—Preponderance of the Evidence.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance, as well as the sentence that the court subsequently imposed. The Court of Appeals affirmed the judgment and sentence.

In May 2008, defendant asked an undercover police officer, who was posing as a prostitute on east Colfax Avenue, if she wanted to smoke crack cocaine with him. When he showed her a Blistex tube that contained three rocks of crack cocaine, police officers from the Aurora Police Department arrested him.

Defendant argued that voir dire was insufficient because the trial court refused his request that the court read to the potential jurors a legal definition of the defense of entrapment. Both the prosecutor and defense counsel, however, had the opportunity to question jurors about the general nature of the entrapment defense. Further, the trial court properly gave instructions to the jury on the issue of entrapment at the close of the evidence. Accordingly, the trial court’s denial of defendant’s request to instruct the jury on the defense of entrapment duringvoir dire was not an abuse of discretion.

Defendant further argued that the trial court abused its discretion when it denied his motion to hold a Shreck hearing on the admissibility of expert testimony regarding fingerprint evidence concerning a prior conviction. [People v. Shreck, 22 P.3d 68 (Colo. 2001).] The Court ruled that the motions court acted within its discretion when it denied defendant’s request for a Shreck hearing because: (1) the trial court was the finder of fact, not a jury; (2) defendant was permitted to raise issues during the sentencing hearing that would have been allowed during a Shreck hearing; (3) the evidence was not complex; and (4) fingerprint comparisons are reliable evidence.

Defendant contended that the trial court denied his right to due process of law when it used the wrong burden of proof—a preponderance of the evidence—in finding that he had been convicted of the 1997 drug-related felony. When a sentencing statute does not establish a burden of proof, “the prosecution need only prove the existence of prior conviction facts by a preponderance of the evidence.” CRS § 18-18-405(2.3)(a) was a sentence enhancer, not a substantive offense or an element of a substantive offense, and did not contain a prescribed burden of proof. Thus, the trial court used the proper evidentiary standard—a preponderance of the evidence—and defendant’s due process rights were not abridged.

Summary and full case available here.

Colorado Court of Appeals: Proof of Prior Convictions Not “Element” of Class 3 Felony for Motor Vehicle Theft

The Colorado Court of Appeals issued its opinion in People v. Hopkins on Thursday, May 23, 2013.

Aggravated Motor Vehicle Theft—Prior Convictions—Element—Due Process—Class of Felony.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of aggravated motor vehicle theft in the first degree. The Court of Appeals affirmed the judgment.

Based on proof that defendant had two prior convictions involving theft of a motor vehicle, the court ruled that the current charge was punishable as a class 3 felony and sentenced defendant to ten years in prison. Defendant contended that proof of his prior convictions is an element of the class 3 felony and that the trial court erred when it did not submit this element to the jury for its determination beyond a reasonable doubt. Alternatively, he argued that even if proof of prior convictions is not an element, due process required the court to submit the question to the jury.

CRS § 18-4-409(2)(a) describes the elements of motor vehicle theft in the first degree, which does not include proof of prior convictions. CRS § 18-4-409(3) addresses only the class of felony (it does not create a separate crime), and CRS § 409(3)(b) describes when aggravated motor vehicle theft in the first degree can be a class 3 felony. Therefore, the actus reus and mens rea are the same for the class 3 and class 4 felonies, and proof of two prior convictions related to motor vehicle theft is not an element of the class 3 felony. It follows that due process does not require that defendant’s prior conviction be proved to a jury beyond a reasonable doubt.

Summary and full case available here.

Colorado Supreme Court: Announcement Sheet, 5/28/13

On Tuesday, May 28, 2013, the Colorado Supreme Court issued two published opinions.

Lobato v. State of Colorado, Board of Education

In re People v. Brothers

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Legal Community Donates More Than $54,000 in Food and Cash for Annual Drive

ROTB2-2Members of the legal community donated food and dollars totaling $54,145 to hunger relief organization Metro CareRing through the Denver Bar Association’s 14th Annual Roll Out the Barrels Food Drive, collecting 3,000 pounds more food than in the previous year.

Forty-eight law firms participated in the drive, collecting 10,093 pounds of food and $31,940 in cash donations. This year’s top donating firms are Berenbaum Weinshienk PC, the Castle Law Group, Faegre Baker Daniels, Katz, Look & Onorato PC, Kilpatrick Townsend & Stockton and Orten Cavanagh & Holmes LLC. The food drive was sponsored by the Denver Bar Association’s Community Action Network and ran April 15 to 26.

ROTB1-1“We’re thrilled that the legal community has stepped up this year to provide even more food to Metro CareRing,” said CAN Committee Chair Kris Reed, a partner with Kilpatrick Townsend & Stockton. “Summer months can hard on families because school is out and kids are home for most meals. We’re pleased the Roll Out the Barrels Food Drive can help close the hunger gap in the metro area.”

Metro CareRing operates one of the largest food pantries in Denver. The food and money donated will translate to approximately 15,600 people provided with a five-day supply of food, according to Metro CareRing.

The Community Action Network Committee offers DBA members year-round opportunities to connect with the community and provide valuable legal, social and civic assistance to those in need.

Uniform Premarital and Marital Agreements Act and Other Bills Signed by Governor

Governor John Hickenlooper has signed over 260 bills into law this legislative session. Most recently, he signed the Uniform Premarital and Marital Agreements Act, a bill regarding expunging juvenile delinquency records, a bill to promote conservation related to water use determinations, and several other bills.

The governor signed 12 bills on Friday, May 17, 2013, and Saturday, May 18, 2013. Four of the bills signed on the 17th and 18th are summarized here.

Governor Hickenlooper also signed one bill on May 22, 2013. This bill was SB 13-213 – Concerning the Financing of Public Schools and Creating the “Public School Finance Act,” by Sens. Mike Johnston and Rollie Heath and Rep. Millie Hamner. The bill is contingent on the passage of an as-yet unspecified statewide ballot measure increasing state revenue for K-12 education. It changes the way that students are counted for school funding, and also changes the formula for which districts receive funding. It also allows new funding per pupil, which amount will change depending on the revenue generated by the ballot measure. The bill provides supplemental funding to at-risk and charter schools. The funding laid out in the bill would require about $1.12 billion in state tax revenue from the ballot measure.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

Tenth Circuit: Unpublished Opinions, 5/22/13

On Wednesday, May 22, 2013, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

United States v. Petersen

Crawford v. Addison

Rodriguez v. Presbyterian Healthcare Services

Staker v. Jubber

Kleynburg v. Holder

United States v. Hernandez-Mejia

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