June 24, 2019

Archives for July 11, 2013

Judge Not Disqualified from Foreclosure Actions Due to His Interest in PERA

The Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2013-03 on Wednesday, July 10, 2013.

The opinion discusses whether a judge must disqualify himself from two C.R.C.P. 120 foreclosure actions because of his interest in the Public Employees Retirement Association (PERA). The motion requesting the judge to disqualify himself alleged that because PERA held investments in the foreclosing banks, and has an economic interest in litigation involving mortgage-based securities.

The Judicial Ethics Advisory Board opined that the judge need not recuse, because he has at most a de minimus interest in the outcome of the proceedings through PERA, he does not have actual bias or prejudice regarding the parties, and does not have a disqualifying interest in the foreclosing bank.

For the full text of the opinion, click here. For all of the Colorado Judicial Advisory Board opinions, click here.

Colorado Supreme Court: Certified Question from U.S. Court of Federal Claims Answered by Colorado Supreme Court

The Colorado Supreme Court issued its opinion in Asmussen v. United States on Monday, July 1, 2013.

Real Property—Deeds—Construction and Operation—Railroad Easement Right-of-Way.

The Supreme Court considered a certified question from the U.S. Court of Federal Claims asking whether Colorado law presumes that abutting landowners own the underlying fee to the centerline of an abandoned railroad right-of-way. The Court determined that the centerline presumption is a common law rule of conveyance that presumes that a grantor who conveyed land abutting a right-of-way intended to convey land to the center of the right-of-way—to the extent that the grantor owned the property underlying the right-of-way and absent a contrary intent on the face of the conveyance. Therefore, although the Court held that the centerline presumption applies to railroad rights-of-way, it also held that, to claim presumptive ownership to the centerline of a railroad right-of-way, an adjacent landowner must produce evidence that his or her title derives from the owner of the land underlying the right-of-way. Accordingly, the Court answered the certified question in the negative.

Summary and full case available here.

Colorado Supreme Court: Law Firm and Metropolitan District Share a Common Goal in Water Rights Litigation

The Colorado Supreme Court issued its opinion in Concerning the Application for Underground Water Rights of Cherokee Metropolitan District on Monday, July 1, 2013.

Civil Procedure—Intervention as of Right Under CRCP 24(a).

The Supreme Court held that Felt, Monson & Culichia LLC (FMC) did not have a right to intervene under CRCP 24(a) because FMC did not make a compelling showing that Cherokee Metropolitan District may not adequately represent its interest in the underlying litigation. Furthermore, FMC did not establish that the water court abused its discretion in denying its motion for permissive intervention under CRCP 24(b). The Court therefore affirmed the water court’s denial of FMC’s motion to intervene in the consolidated Case Nos. 2005CW06 and 2005CW20.

Summary and full case available here.

Colorado Supreme Court: No Temporal Limitation in Statutory Language for Reduction in Unemployment Insurance Benefits

The Colorado Supreme Court issued its opinion in Industrial Claim Appeals Office v. Colorado Department of Labor and Employment on Monday, July 1, 2013.

Unemployment Benefits—Retirement Contributions—Offset Provision.

Respondent worked for the Colorado Department of Labor and Employment (Department) for a number of years, and then retired. The Department made contributions to respondent’s retirement fund, and once she retired, she began receiving retirement payments from that fund. When she was involuntarily separated from her job with the Department during a second period of employment, she applied for and was awarded unemployment benefits. Respondent’s benefits were discontinued when a panel of the Industrial Claim Appeals Office (Panel) reasoned that respondent was ineligible to receive unemployment benefits under the “offset provision” of CRS § 8-73-110(3)(a)(I)(B), which provides that “an individual’s weekly benefit amount shall be reduced (but not below zero) by . . . [t]he prorated weekly amount of a pension, retirement or retired pay, or annuity that has been contributed to by a base period employer.” The court of appeals reversed, holding that the offset provision applies only when the employer has contributed to the claimant’s retirement fund during the base period employment that made him or her eligible for unemployment benefits.

The Supreme Court reversed the judgment of the court of appeals. The offset provision applies when a claimant is receiving payments from a retirement fund “that has been contributed to by a base period employer.” In contrast to the definition of employer, which specifically includes a time frame during which the employing unit must pay wages, and in contrast to the definition of base period, which describes the time frame for determining eligibility for benefits, the offset provision contains no temporal limitation. Therefore, it applies any time the employer has contributed to the retirement fund from which the claimant is receiving payments, regardless of when the contributions were made. Accordingly, the Court held that respondent’s unemployment benefits can be offset by the retirement benefits she is receiving from a base period employer.

Summary and full case available here.

Tenth Circuit: Hate Crimes Act Lawful Exercise of Congress’s Power Under Thirteenth Amendment

The Tenth Circuit Court of Appeals published its opinion in United States v. Hatch on Wednesday, July 3, 2013.

Three New Mexico men kidnapped a disabled Navajo man and branded a swastika into his arm. The United States charged the assailants with committing a hate crime under the recently enacted Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249. The Hate Crimes Act makes it a felony to physically attack a person because of that person’s race. The three assailants contended in district court that the Hate Crimes Act is unconstitutional, claiming Congress lacks the authority to criminalize purely intrastate conduct of this character. The government countered that the Thirteenth Amendment, which abolished slavery in the United States, gave Congress the necessary authority. The district court agreed with the government, holding that Congress’s power to enforce the Thirteenth Amendment authorized it to enact 18 U.S.C. § 249(a)(1), the portion of the Hate Crimes Act under which the three men were charged.

One of the men, William Hatch, pleaded guilty while reserving his right to appeal. He argued on appeal that 18 U.S.C. § 249 violates federalism. The court acknowledged the importance of Hatch’s arguments, but found itself bound by Jones v. Alfred H. Mayer Co., a Supreme Court case upholding Congress’s power to enforce the Thirteenth Amendment by appropriate legislation. This authority extends to  rationally determining what are the “badges and incidents” of slavery.

The court also found that the racial violence provisions of § 249 respected the limits on Congressional authority found in Jones. It applied the badges and incidents concept to: “(a) actions that can rationally be considered to resemble an incident of slavery when (b) committed upon a victim who embodies a trait that equates to “race” as that term was understood in the 1860s, and (c) motivated by animus toward persons with that trait.”

Because the Thirteenth Amendment protects all races, the court rejected Hatch’s argument that the Thirteenth Amendment only applies to certain groups so it fails under equal protection. The court affirmed Hatch’s conviction.

Tenth Circuit: Motion to Suppress Weapon was Properly Denied

The Tenth Circuit Court of Appeals published its opinion in United States v. Briggs on Tuesday, July 2, 2013.

Appellant Nathan Briggs was charged with, and pled guilty to, being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Briggs reserved the right to appeal the district court’s denial of his motion to suppress the weapon seized from his possession. He argued the weapon should have been suppressed because police violated his Fourth Amendment rights by detaining him.

The Tenth Circuit reviewed the circumstances of the police stop. “(1) Mr. Briggs and his companion were walking in a high-crime area; (2) the men changed direction and picked up their pace upon seeing the police vehicle; (3) Mr. Briggs repeatedly grabbed at his waistline; (4) the two men took divergent paths into the yard of the Owasso Avenue home; (5) when officers asked to speak with the men, Mr. Briggs turned and backpedaled, exhibiting nervous, evasive behavior; and (6) Mr. Briggs’s companion fled after the officers’ arrival.” The court agreed with the district court that, based on the totality of the circumstances, reasonable suspicion justified an investigative detention and the motion to suppress was properly denied.

Tenth Circuit: Unpublished Opinions, 7/8/13

On Monday, July 8, 2013, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Cacioppo v. Town of Vail

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