August 19, 2019

Archives for December 22, 2013

Michael H. Berger to Receive Colorado Bar’s Highest Honor

6113Michael H. Berger will be honored with the Colorado Bar Association’s highest honor, the Award of Merit, at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 10.

In the numerous letters of nominations that were received by the awards committee, the overwhelming praise was to Berger’s intelligence, analytical skill, and commitment to professionalism. Many described him as the definition of a “lawyer’s lawyer,” an extraordinary lawyer and person.  His almost 40 years of service to the profession have been done quietly, without fanfare or self promotion.

“The CBA is comprised of many talented and dedicated lawyers who tirelessly work to improve our system of justice,” Berger said. “To receive this award from such an organization is a tremendous honor.”

Berger is a member of Husch Blackwell’s Financial Services team where he focuses on financial litigation while also handling commercial, appellate, employment and intellectual property litigation matters. He acts as a consultant in legal ethics matters and frequently serves as an expert witness, and is a frequent presenter of CLE programs in the areas of litigation and legal ethics and has authored a number of articles in the area of legal ethics. Berger is a past chair of the CBA Ethics Committee, current chair of the CBA Amicus Brief Committee, and a member of the Colorado Supreme Court Standing Committee on the Colorado Rules of Professional Conduct. He was recently appointed by Gov. John Hickenlooper to serve as a judge for the Colorado Court of Appeals.

“Each lawyer who has received the CBA’s Award of Merit has been astonished:  Why me? ” said Past Award of Merit winner Anthony van Westrum.  “But I am sure there is no one — with Mike as the possible exception — who doubts that Michael Berger is entirely deserving of this Award.  Everyone who knows him knows of the constant, quiet, thoroughly competent services he renders to the Association and for the good of the law and the legal system in Colorado.  Even the Governor knows that, for he has just elevated Mike to the Court of Appeals.”

The Award of Merit, the association’s highest honor, is given annually to a member for outstanding service to the association, the legal profession, the administration of justice and the community. Berger and CBA Young Lawyers Division’s Gary L. McPherson Outstanding Young Lawyer of the Year Award recipient Benjamin E. Currier will be honored at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 10, at the Hyatt Regency Convention Center.

Colorado Court of Appeals: Employer Not Liable for Taxes on Employees Who Lived and Worked Out of State

The Colorado Court of Appeals issued its opinion in Foundation for Human Enrichment v. Industrial Claim Appeals Office on Thursday, December 19, 2013.

Unemployment Compensation Tax Liability—Out-of-State Workers—Colorado Employment Security Act.

In this unemployment compensation tax liability case, petitioner Foundation for Human Enrichment (Foundation) sought review of a final order of the Industrial Claim Appeals Office (Panel). The issue on appeal was whether coordinator services carried out by twenty-one individuals, who lived and worked out of state and performed various administrative and clerical duties for Foundation workshops, constituted covered “employment” for tax purposes under the Colorado Employment Security Act (CESA), CRS §§ 8-70-101 to 8-82-105. The Panel concluded that the out-of-state coordinators were covered employees under the CESA and that the Foundation was responsible for paying unemployment compensation taxes for these individuals.

The Court of Appeals disagreed with the Panel. The out-of-state coordinators’ services to the Foundation were not “employment” under the CESA. CRS § 8-70-117 applies only when the worker performs all his or her services in Colorado, performs a portion of his or services in Colorado, or resides in Colorado. None of those circumstances was present here. The coordinators lived in eleven states and provided all their services in those states. Based on the definition of “employment” enacted in each state, the coordinators’ services would have been covered under the unemployment compensation laws of the state where they worked and resided. Therefore, the Division of Unemployment Insurance lacked statutory authority to impose tax liability against the Foundation with regard to the out-of-state coordinators. The order was set aside and the case was remanded with directions.

Summary and full case available here.

Colorado Court of Appeals: Claims Correctly Dismissed Where Plaintiff Failed to Exhaust Administrative Remedies

The Colorado Court of Appeals issued its opinion in Barry v. Bally Gaming, Inc. on Thursday, December 19, 2013.

Limited Gaming Act of 1991—Administrative Remedies—Outrageous Conduct—Contract Claims—Colorado Consumer Protection Act—Jurisdiction.

Plaintiff Charles Barry brought this action after he played a slot machine manufactured by Bally Gaming, Inc. (Bally) in the Lady Luck casino owned and operated by CCSC/Blackhawk, Inc. (Lady Luck). The slot machine indicated that he had won $31,202.41, but it was later determined that the machine had malfunctioned, voiding his winnings. The trial court dismissed Barry’s claims, finding that he failed to exhaust administrative remedies.

On appeal, Barry asserted that the district court erred in dismissing his outrageous conduct and contract claims because the Colorado Limited Gaming Control Commission (Commission) did not have exclusive jurisdiction over those claims. Through the Limited Gaming Act of 1991 (Act), the General Assembly vested in the Commission the authority to regulate limited gaming, and this regulatory power was intended to embrace all aspects of the operation of gaming in Colorado. Barry’s outrageous conduct and contract claims present precisely the type of patron dispute governed by the Act and the “patron disputes” regulation. Accordingly, the district court correctly ruled that these claims fell within the Commission’s exclusive regulatory authority and properly dismissed them.

Barry also contended that the district court erred in concluding that his Colorado Consumer Protection Act (CCPA) claim was within the Commission’s exclusive jurisdiction. Barry, however, failed to assert a CCPA claim that was distinct from a claim falling within the Commission’s exclusive regulatory jurisdiction. Accordingly, the district court correctly ruled that the Commission had original and exclusive jurisdiction over Barry’s CCPA claim and properly dismissed that claim.

Barry further asserted that even if he were required to pursue his administrative remedies, exhaustion here was unnecessary because (1) the matter in controversy raised questions of law that were not within the Commission’s expertise or capacity, and (2) further administrative review before the Commission would have been futile. The Court of Appeals disagreed. Barry’s claims centered not on questions of law but on factual issues falling squarely within the Commission’s regulatory authority and expertise. Moreover, Barry failed to show that exhausting his administrative remedies would be futile. Barry’s remedy was to file an appeal and not a separate action in district court after he had exhausted his administrative remedies. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Citizens United Case Requires Court to Affirm District Court’s Issuance of Preliminary Injunction Enjoining Enforcement of New Mexico Campaign Finance Law

The Tenth Circuit Court of Appeals published its opinion in Republican Party of New Mexico v. King on Wednesday, December 18, 2013.

This case required the Tenth Circuit to consider state campaign finance regulations in light of the Supreme Court’s ruling in Citizens United v. FEC, 558 U.S. 310 (2010). Citizens United held that federal election law violated the First Amendment by restricting independent political spending because the speaker was a corporation—the holding allowed corporate entities to make unlimited independent expenditures supporting or opposing issues or candidates as long as the expenditures were not coordinated with a candidate for federal office.

Before the Court’s decision in Citizens United, New Mexico had introduced a new state campaign finance law that imposed a host of contribution and other limitations on political parties, political action committees, and donors to such entities. In particular, the state limited the amount an individual may contribute to a political committee. Potential donors, political parties, and political committees mounted an as-applied challenge to the law in federal district court, contending several of its provisions violated the First Amendment.

The district court agreed and issued a preliminary injunction, enjoining the enforcement of two provisions: (1) limits on contributions to political committees for use in federal campaigns, and (2) limits on contributions to political committees that are to be used for independent expenditures, i.e., expenditures not authorized by or coordinated with a candidate or candidate committee. New Mexico appealed the latter ruling, contending that the limit on contributions furthers the state’s compelling interest in preventing corruption or the appearance of corruption in campaign spending.

Citizens United resolved a longstanding debate over whether other governmental interests could support restrictions on campaign financing. After Citizens United, there was no valid governmental interest sufficient to justify imposing limits on fundraising by independent expenditure organizations. The Supreme Court firmly rejected the contention that independent expenditures give rise to corruption or the appearance of corruption: “The appearance of influence or access . . . will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech . . . not coordinated with a candidate.” Citizens United, 558 U.S. at 360. In sum, Citizens United resolved the right of a non-profit corporation to make independent expenditures without limits as to their source and amount. In its wake, the circuit courts have also uniformly struck down limitations on contributions to entities engaged in independent expenditures.

The Tenth Circuit held that the district court was correct that the challenged provision cannot be reconciled with Citizens United. Because there is no corruption interest in limiting independent expenditures, there can also be no interest in limiting contributions to non-party entities that make independent expenditures. Consequently, as the district court found, plaintiffs are likely to succeed on the merits of its First Amendment challenges to New Mexico’s law.

As a result, did not err in entering a preliminary injunction.


Tenth Circuit: Unpublished Opinions, 12/19/13

On Thursday, December 19, 2013, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.

United States v. Gomez

United States v. Lopez

Amerson v. United States

Ali v. Province

Ali v. Holder

United States v. Green

United States v. Begay

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.