August 22, 2019

Archives for May 13, 2014

e-Legislative Report: May 12, 2014

Special Issue: End of the 2014 Legislative Session

Just a quick note to readers that the 2nd Regular Session of the 69th General Assembly came to a close on Wednesday, May 7. Please look for “Legislative Highlights” in the July issue of The Colorado Lawyer. In addition, The Colorado Lawyer August issue will contain the “2014 Legislative Update.”

My thanks to all who subscribe to the e-legislative newsletter. We hope that the updates have been useful to you throughout the 2014 legislative session.

Thankfully, for the CBA the year was quite successful. Our sponsored legislation has been approved by the legislature and is either on its way to the governor or has already been signed by him. The CBA continues its reputation for bringing well thought-out legislation that seeks to improve the legal system—for our members as well as the public.

The Legislative Policy Committee (LPC) and in particular the committee chairman and CBA President Terry Ruckriegle, must be commended for their efforts throughout the session; they meet weekly when the legislature is in session to direct our efforts at the legislature. During the “off-session” the LPC meets monthly to reflect on the session just concluded and to prepare for the session that is always around the corner.

A big thank you goes out to all the sections for their work in reviewing, amending, fixing, analyzing, killing, and helping pass numerous bills from January through May.

Our contract lobbyist, Amy Redfern and our lobby firm of Aponté–Busam, do a phenomenal job of representing the CBA at the legislature. Amy’s intellect, experience, and professionalism are tremendous assets to our Association.

A very special note of thanks to my colleague Margaret Haywood, Web & Communications Specialist at the Colorado Bar Association, for her efforts to not only get the e-legislative newsletter published each week, but for her help in making the format attractive to readers.

One last item, if something big should arise over the summer I reserve the right to bring it to your attention through this newsletter.

Have a good summer!

Colorado Supreme Court: Determination Regarding Employee or Independent Contractor Status Must Be Made on Case-by-Case Basis

The Colorado Supreme Court issued its opinion in Industrial Claim Appeals Office v. Softrock Geological Services, Inc. on Monday, May 12, 2014.

Colorado Employment Security Act—Employment Law.

The Supreme Court held that there is no dispositive single factor or set of factors to determine whether an individual is an independent contractor under the Colorado Employment Security Act. The question of whether an individual is “customarily engaged in an independent trade, occupation, profession, or business related to the service performed” can be resolved only by applying a totality of the circumstances test that evaluates the dynamics of the relationship between the putative employee and the employer. Therefore, the Court agreed with the court of appeals that several factors must be analyzed to make the determination, but disagreed that there was a set of defining factors. The judgment was affirmed and the case was remanded with directions.

Summary and full case available here.

Colorado Supreme Court: Totality of the Circumstances Must Be Considered to Determine Employment Status

The Colorado Supreme Court issued its opinion in Western Logistics, Inc. v. Industrial Claim Appeals Office on Monday, May 12, 2014.

Colorado Employment Security Act—Employment Law.

The Supreme Court held that there is no dispositive single factor or set of factors to determine whether an individual is an independent contractor under the Colorado Employment Security Act. The question of whether an individual is “customarily engaged in an independent trade, occupation, profession, or business related to the service performed” can be resolved only by applying a totality of the circumstances test, as laid out in Industrial Claim Appeals Office v. Softrock Geological Services, Inc., 2014 CO 30. The judgment was reversed and the case was remanded with directions.

Summary and full case available here.

Colorado Supreme Court: Verdict Forms Did Not Offer Jury Opportunity to Find Elements of Crime Committed

The Colorado Supreme Court issued its opinion in Sanchez v. People on Monday, May 12, 2014.

Criminal Law—Jury Instructions.

Defendant petitioned for review of the court of appeals’ judgment affirming his conviction for sexual assault on a child as part of a pattern of abuse. The trial court entered judgment of conviction for a class 3 felony on the basis of its finding of two out of six enumerated touching incidents presented on a verdict form entitled “Sexual Assault on a Child–Pattern of Abuse.” A majority of the court of appeals found that defendant had been adequately charged in a single count with both the elements of sexual assault on a child and the pattern-of-abuse sentence enhancer, apart from the count charging simply sexual assault on a child. The court of appeals also held that the jury’s instructions did not make the finding of a pattern of abuse contingent on first finding defendant’s guilt of the separately charged crime of sexual assault on a child.

The Supreme Court reversed the court of appeals’ judgment affirming defendant’s conviction of sexual assault on a child. The Court found that the verdict form by which the jury found defendant guilty of sexual assault on a child–pattern of abuse did not offer the jury an opportunity to find that he committed the elements of sexual assault on a child, and instead reflected at most the jury’s factual finding of two different incidents of sexual contact.

Summary and full case available here.

Tenth Circuit: No Jurisdiction for Interlocutory Review by Tenth Circuit

The Tenth Circuit Court of Appeals issued its opinion in Miller v. Basic Research LLC on Tuesday, May 6, 2014.

In this class action, a group of plaintiffs challenged a weight-loss supplement’s claims that they could eat all they wanted and still lose weight. The parties entered into mediation, where they drafted and signed a document outlining the terms of a settlement. After informing the district court that the mediation had been successful, several drafts of a settlement agreement were exchanged, but the parties could not agree on the terms. Defendants eventually informed the district court that they were no longer willing to settle.

The plaintiff class then filed a motion to enforce the settlement achieved at the mediation, and the district court granted that motion because it concluded the parties had entered into an enforceable agreement. Defendant appealed the terms of the settlement agreement, and plaintiffs challenged the Tenth Circuit’s jurisdiction.

The Tenth Circuit evaluated the few exceptions to the general rule that orders must be final in order to confer jurisdiction on the Tenth Circuit. Defendant argued that jurisdiction was proper because (1) the district court’s order was the functional equivalent of an injunction, or (2) the district court order is an appealable collateral order because Defendant’s rights will be unreviewable later in litigation. The Tenth Circuit rejected both arguments, noting that the district court’s acceptance of the settlement agreement was not an injunction and Defendant will have the chance to object to the settlement at its Rule 23 hearing.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 5/12/2014

On Monday, May 12, 2014, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Arechiga-Mendoza

Lube v. NCO Financial Services

Genberg v. Porter

United States v. Jariwala

United States v. Limon

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.