July 17, 2019

Archives for August 2014

Tenth Circuit: Unpublished Opinions, 8/25/2014

On Monday, August 25, 2014, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Tillotson v. May

Wilson v. Addison

Richardson v. Ploughe

Village of Logan v. United States Department of Interior

Adams v. Jones

Case summaries are not provided for unpublished opinions.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

JDF Forms Revised in Domestic, Probate, Seal My Case, and Other Categories

The Colorado State Judicial Branch revised many forms in July and August 2014. Several summons forms in the Domestic Relations category were revised, and additions of Returns of Service and Waivers and Acceptance of Service were made available for download as Word documents to accompany the revised forms. A new category was added for sealing underage alcohol and marijuana cases for offenses occurring after July 1, 2014. Forms were also amended in the Adoption, DMV Appeal, Probate, Miscellaneous, and Water categories.

Forms are available for download here as PDF documents, and are available as Word documents or Word templates from State Judicial’s Forms page.

Adoption

  • JDF 506 – “Notice of Adoption Proceedings and Summons to Respond” (revised 8/14)

Appeals

  • JDF 599 – DMV Appeal – “Complaint for Judicial Review Pursuant to Title 42, C.R.S., Request for Stay and Designation of Record” (revised 8/14)

Domestic

  • JDF 1102 – “Summons for Dissolution of Marriage or Legal Separation” (revised 8/14)
  • JDF 1102(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1102(b) – “Return of Service” (8/14)
  • JDF 1222 – “Summons for Registration of Foreign Decree” (revised 8/14)
  • JDF 1222(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1222(b) – “Return of Service” (8/14)
  • JDF 1251 -“Summons for Dissolution of Civil Union or Legal Separation of Civil Union” (revised 8/14)
  • JDF 1262 – “Summons for Declaration of Invalidity of Civil Union” (revised 8/14)
  • JDF 1262(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1262(b) – “Return of Service” (8/14)
  • JDF 1406 – “Motion to Modify/Restrict Parenting Time” (revised 8/14)
  • JDF 1414 – “Summons to Respond to Petition for Allocation of Parental Responsibilities” (revised 8/14)
  • JDF 1414(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1414(b)– “Return of Service” (8/14)
  • JDF 1502 – “Summons in Paternity” (8/14)
  • JDF 1502(a)– “Waiver and Acceptance of Service” (8/14)
  • JDF 1502(b)– “Return of Service” (8/14)
  • JDF 1515 – “Summons to Disclaim Paternity” (revised 8/14)
  • JDF 1515(a)– “Waiver and Acceptance of Service” (8/14)
  • JDF 1515(b)– “Return of Service” (8/14)
  • JDF 1602 – “Summons for Declaration of Invalidity of Marriage” (revised 8/14)
  • JDF 1602(a)– “Waiver and Acceptance of Service” (8/14)
  • JDF 1602(b)– “Return of Service”

Guardianship/Conservatorship/Probate/Trust & Estate

  • JDF 998 – “Instructions for Completing Affidavit for Collection of Personal Property” (revised 8/14)
  • JDF 800 – “Acknowledgment of Responsibilities Conservator and/or Guardian” (revised 8/14)
  • JDF 848 – “Order Appointing Guardian for Adult” (revised 8/14)
  • JDF 861 – “Petition for Appointment of Conservator – Minor” (revised 8/14)
  • JDF 878 – “Order Appointing Conservator for Adult” (revised 8/14)
  • JDF 999 – “Collection of Personal Property by Affidavit” (revised 8/14)

Miscellaneous

  • JDF 36 – “Petition for Relief Pursuant to §13-5-142.5 OR §13-9-124 From Federal Firearms Prohibitions Imposed Pursuant to 18 U.S.C. §922(d)(4) and (g)(4)” (8/14)

Seal My Case

  • JDF 323 – “Instructions to File a Petition to Seal Records Related to Underage Possession or Consumption of Alcohol or Marijuana (MIP)” (8/14)
  • JDF 313 – “Petition to Seal Records Related to Underage Possession and Consumption of Underage Alcohol or Marijuana (MIP)” (8/14)
  • JDF 314 – “Order Regarding the Sealing of Records Related to Underage Possession or Consumption of Alcohol or Marijuana (MIP)” (8/14)
  • JDF 416 – “Instructions to File a Petition to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 417 – “Petition to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 418 – “Order to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 419 – “Order and Notice of Hearing (Sealing of Records)” (revised 8/14)
  • JDF 435 – “Order Denying Petition to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 8/14)
  • JDF 612 – “Petition to Seal Criminal Conviction Records” (revised 8/14)
  • JDF 613 – “Order Denying Petition to Seal” (revised 8/14)
  • JDF 614 – “Order and Notice of Hearing” (revised 8/14)
  • JDF 615 – “Order to Seal Criminal Conviction Records” (revised 8/14)
  • JDF 617 – “Certificate of Mailing (Sealing and Conviction Actions)” (revised 8/14)

Water

  • JDF 295W – “Standardized Instructions for all Colorado Water Court Divisions” (revised 8/14)

For all of State Judicial’s forms, click here.

Tenth Circuit: Attorney’s Failure to Submit Evidence of Residence Constituted Ineffective Representation in Removal Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Martinez Molina v. Holder on Tuesday, August 19, 2014.

Alberto Martinez Molina and Cristina Ramirez Rivera, a married couple, are Mexican citizens subject to final orders of removal from the United States. The government began removal proceedings on October 16, 2008, and, in order to cancel the removal, the couple had to show continuous presence in the United States for the past ten years, beginning October 16, 2008. At a 2008 hearing, the couple’s first attorney submitted paystubs showing that Mr. Martinez had worked in the United States since 1998 and vaccination records showing that the couple’s minor child had been vaccinated throughout 1998. Following this hearing, the couple relocated and obtained the services of a second attorney, Mr. Senseney. At the second hearing, Senseney presented evidence of residence from 1999 to 2010, but did not present any evidence regarding 1998. The immigration judge denied relief, relying in part on the missing documentation but also relying on discrepancies in the couple’s testimony. Senseney appealed to the BIA but did not challenge any of the immigration judge’s rulings. The BIA dismissed the appeal.

After the dismissal, the couple hired a third attorney, who petitioned to reopen based on ineffective representation. The couple argued that they had received ineffective representation from Senseney based on his failure to submit evidence of residence during 1998. The BIA denied the motion, ruling that it appeared from the record that the evidence was substantially similar to that relied upon by the IJ. The couple appealed to the Tenth Circuit on two grounds: (1) the immigration judge failed to consider all of the evidence, including the evidence submitted at the 2008 hearing by their first attorney, and (2) ineffective representation.

The Tenth Circuit declined to address the couple’s first argument because it lacked jurisdiction to do so. The couple had not appealed that ruling to the BIA, and without exhaustion of lower court remedies, the Tenth Circuit had no jurisdiction to hear the issue. As to the second argument, the Tenth Circuit affirmed the BIA’s decision as to Ms. Ramirez but reversed as to Mr. Martinez.

The Tenth Circuit found that the BIA abused its discretion in denying Mr. Martinez’s petition to reopen because it ruled that the evidence regarding Mr. Martinez’s presence in 1997 and 1998 that was attached to his petition appeared the same or substantially similar to that considered by the immigration judge. However, the immigration judge did not consider evidence from 1998 because she referenced the absence of evidence proving residence in October 1998. The Tenth Circuit remanded to the BIA for further findings regarding the 1998 evidence.

As to Ms. Ramirez, the Tenth Circuit found no abuse of discretion. The vaccination records from 1998 that she submitted with her petition to reopen were already in the record, leading the BIA and Tenth Circuit to conclude the immigration judge considered this evidence.

The BIA’s denial was affirmed as to Ms. Ramirez and reversed and remanded as to Mr. Martinez.

Tenth Circuit: Unpublished Opinions, 8/22/2014

On Friday, August 22, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Mendiola v. Holder

Qiu v. Holder

United States v. Veater

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

Running Past Our Limits Update (Part Four): Running Just Because

rhodesAnd sometimes you run just because.

Forget the inspiration, the challenges, the training techniques, the goals.

Forget researching neurology for scientific support. Forget constantly recalculating the odds, feeling like they get worse every day, wondering how much life this experiment has left in it.

Forget all that. This morning, just be that 12-year old racing a friend home after a Friday night small town football game, suddenly noticing that his feet aren’t even touching the ground and he’s leaving the fastest kid in town far behind.

Or just be that 17-year old running wind sprints on the football field and coming in just a few yards behind the fastest kid ever to play running back in your town, the holder of three conference championship records as a sophomore, and all the coaches are looking at their stopwatches and saying, “Who’s that kid in second place?”

Or just be the kid the varsity track coach pulls aside one day and says, “You’re built just like Jim Ryan — we should make a miler out of you.”

That conversation never went any further. Every now and then I wonder what might have happened if it had, and I always end up being glad it didn’t, because like Jim Ryan I might have walked off the track in the middle of a race one day.

But never mind any of that, not now. Just be who you are, right here, right now: a kid’s soul living in an adult’s body. Step on the machine and you’re out of that body, running like your younger self, running for the pure joy of it. All the struggle and trying to figure things out fade and fall far behind, like the fastest kid in town who couldn’t keep up with you. There’s nothing but the movement, nothing but the stride, over and over, churning up the invisible ground under your feet. Machine metrics? Who cares? Moving is all that matters.

Your heart swells, you’re just so grateful you can do this.

Jim Ryan had the perfect stride. I’ve studied it frame by frame. I visualize it when I run on the machine, patterning my brain, telling it, “Make me look like that.”

This past Sunday, I looked like that for two hours and ten minutes. It was only during those last ten minutes that I noticed the machine was telling me my heartbeat was up in the “high performance” category, that my right foot was starting to spaz out and turn sideways, that I was feeling tired.

It didn’t matter. I was running. My long legs were put on this planet to run; there’s no other explanation for them.

And so, this past Sunday, that’s what I did.

I ran.

Just because.

Seven years ago, Kevin Rhodes left his law practice to start a creative venture. His reflections on what happened next appear in an article about law career exit strategies in the August issue of The Colorado Lawyer (here’s the introduction, and here’s the article). His new ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned, and is available as a FREE download at iTunes, Barnes & Noble, Scribd, or wherever else you normally get ebooks. Or follow this link to the distributor’s page, where it’s available as a FREE download in all formats — phone, Kindle, as a PDF, etc. You can email Kevin at kevin@rhodeslaw.com.

Colorado Court of Appeals: Announcement Sheet, 8/21/2014

On Thursday, August 21, 2014, the Colorado Court of Appeals issued no published opinion and 51 unpublished opinions.

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

Tenth Circuit: Jury Verdict and Attorney Fee Award Upheld in Employee Class Action

The Tenth Circuit Court of Appeals issued its opinion in Garcia v. Tyson Foods, Inc. on Tuesday, August 19, 2014.

Tyson employees were required to don and doff certain protective clothing before and after performing job duties. Tyson originally compensated only certain employees for 4 to 7 minutes of this “K-code” time, eventually changing its policy to compensate all employees for 20 to 22 minutes of K-code time. However, based Tyson’s own study, employees were uncompensated for approximately 29 minutes per shift based on the times they punched in and punched out versus actual compensation.

A group of Tyson employees brought class and collective actions against Tyson, seeking unpaid wages for pre- and post-shift activities. After a jury returned an award for the employees and an attorney fee award, Tyson unsuccessfully moved for judgment as a matter of law. Tyson appealed the district court’s judgment and denial of its motion for judgment as a matter of law. Tyson also argued the attorney fee award was excessive.

The Tenth Circuit addressed Tyson’s first argument – whether the evidence was sufficient to support the verdict – and found it was. The question for the jury was whether the K-code system had resulted in underpayment, and the Tenth Circuit found ample reason in the evidence to support the jury’s decision that it had, including Tyson’s own study. Tyson also challenged the proof of underpayment as to each class member. The Tenth Circuit rejected that challenge, because the proof was unnecessary, the jury could rely on representative evidence, and Tyson’s supporting cases are inapplicable.

The jury awarded less to plaintiffs than they requested. Tyson interpreted this to mean that the jury found some class members were appropriately compensated. The Tenth Circuit disagreed, finding the evidence supported a finding of undercompensation for all class members, and noting that Tyson’s argument was speculative.

Finally, the Tenth Circuit addressed the attorney fee award. The Fair Labor Standards Act provides a right to attorney fees to prevailing plaintiffs. The district court awarded over $3 million in attorney fees, despite the much lower awards to the plaintiffs. Because of ongoing class litigation in another county, the district court adopted a procedure whereby it reviewed the attorneys’ time records in camera, allowed disclosure of the hourly rate and number of hours worked, and allowed each side the chance to depose someone on the other side familiar with the billing process. Tyson objected to this process, instead requesting full discovery of billing records. The Tenth Circuit upheld the process and the award, finding good cause for the district court’s procedure and award.

The judgment was affirmed.

Tenth Circuit: Opinion Reissued Upon Remand from U.S. Supreme Court

The Tenth Circuit Court of Appeals issued its opinion in National Credit Union Administration Board v. Nomura Home Equity Loan, Inc. on Tuesday, August 19, 2014.

The U.S. Supreme Court granted certiorari to review the Tenth Circuit’s August 27, 2013 decision and remanded with instructions to reconsider in light of the Supreme Court’s decision in CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014). The Tenth Circuit, after receiving additional briefs and reviewing CTS Corp., reinstated its original opinion. Click here for the original summary.

Tenth Circuit: Unpublished Opinions, 8/21/2014

On Thursday, August 21, 2014, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Trotter

United States v. Velasco

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

Colorado Supreme Court Reverses Years of Precedent in Softrock and Western Logistics

It is advantageous to employers to retain the services of independent contractors when possible. Contractors are not required to be covered by workers’ compensation insurance and employers need not pay unemployment tax out of the contractors’ wages. However, classifying workers as contractors has its risks; after an audit, the employer may be found liable for back taxes on workers who are found to be employees rather than contractors.

That is precisely what happened to Carpet Exchange in 1993, when the Colorado Court of Appeals issued its opinion in Carpet Exchange of Denver v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo. App. 1993). The court of appeals analyzed C.R.S. § 8-70-115(1)(b) and, after applying the factors, decided that the workers in question were employees rather than contractors because they were not “customarily engaged in an independent trade, occupation, profession, or business related to the service performed.” Since then, courts have relied on this one-factor test to determine whether long-term workers are employees or contractors.

Industrial Claim Appeals Office v. Softrock Geological Services, 2014 CO 30 (Colo. May 12, 2014), reversed that precedent. In Softrock, the Colorado Supreme Court rejected the outside employment test as dispositive of whether a worker is an employee or an independent contractor, ruling instead that the totality of the circumstances must be considered and no single factor can be dispositive in deciding whether an individual is customarily engaged in an independent business or trade.

Michael Santo, lead counsel in Softrock, will present a lunchtime program on Friday, August 22, 2014 at the CLE offices to discuss Softrock‘s impact on employment law. Santo will also discuss Western Logistics, Inc. v. Industrial Claim Appeals Office, 2014 CO 31 (Colo. May 12, 2014), a related opinion that the supreme court delivered the same day as Softrock. Employment attorneys, business attorneys, and in-house counsel should attend this informative lunchtime program.

CLE Program: Independent Contractor or Employee? Softrock‘s and Western Logistics‘ Effect

This CLE presentation will take place on August 22, 2014. Click here to register for the live program and click here to register for the webcast. You can also register by phone at (303) 860-0608.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemand

Colorado Court of Appeals: Statutory Language Precludes Discontinuation of Colorado Sex Offender Registration for Out of State Conviction

The Colorado Court of Appeals issued its opinion in People v. Curtiss on Thursday, August 14, 2014.

Sexual Assault on a Child—Sex Offender Registry—Petition to Discontinue Registration.

Curtiss pleaded guilty to the felony charge of first-degree sexual assault of a child in Oneida County, Wisconsin. He was required to register as a sex offender as a condition of his probation. Thereafter, Curtiss moved to Colorado and registered as a sex offender in this state. Curtiss later filed a petition in district court requesting to be removed from the Colorado sex offender registry, which was denied by the district court.

On appeal, Curtiss argued that the district court erred in denying his petition to discontinue registration. CRS §16-22-113(3) applies to persons whose convictions were obtained from out-of-state courts and prohibits removal from the registry for an offense comparable to sexual assault on a child in Colorado. Because Curtiss was convicted of an offense comparable to Colorado’s offense of sexual assault on a child, he was not eligible for discontinuation of sex offender registration. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Colorado Bridge Enterprise Fee Not Subject to TABOR

The Colorado Court of Appeals issued its opinion in TABOR Foundation v. Colorado Bridge Enterprise on Thursday, August 14, 2014.

Tax—TABOR—Enterprise—Fee.

In 1992, Coloradans adopted the Taxpayer’s Bill of Rights (TABOR), which limits the power of the state, its subdivisions, and its districts to levy taxes or create debt. TABOR requires voter approval for any new tax and for the issuance of debt. Enterprises, as defined by TABOR, are exempt from TABOR’s voter approval requirements. In 2009, the General Assembly created the Colorado Bridge Enterprise (CBE). CRS § 43-4-805authorizes the CBE to impose a bridge safety surcharge to finance, repair, reconstruct, and replace any designated bridge in the Colorado highway system, without being subject to TABOR.

In 2012, the TABOR Foundation (Foundation) commenced this action, asserting that the CBE was subject to TABOR. The trial court held that the CBE did not levy a TABOR-prohibited tax when it imposed a bridge safety surcharge, but instead imposed a permissible fee. It further held that the CBE operates as a TABOR-exempt enterprise and did not violate TABOR by issuing bonds without submitting the matter to voters in a statewide election.

On appeal, the Foundation contended that the bridge safety surcharge is a tax because it is collected without regard to any services used by the vehicles for which the charge is imposed, and thus fails to meet the definition of a TABOR-exempt fee. The Court of Appeals disagreed. The General Assembly’s primary purpose was to create a charge that would finance a particular service. Further, the charge can be imposed only for the purpose of financing, repair, reconstruction, and replacement of designated bridges. The money raised by the surcharge could never be used for general government purposes. Further, it is not determinative that persons registering their vehicles might never use a CBE bridge. Therefore, the bridge safety surcharge is a fee, not a tax.

The Foundation also contended that the trial court erred in finding that the CBE is an enterprise exempt from TABOR requirements. CBE is a business because it pursues a benefit and generates revenue by collecting fees from service users. Also, CBE is authorized to issue its own revenue bonds and receives less than 10% of annual revenue in grants from all Colorado state and local governments combined. Therefore, it is an enterprise exempt from TABOR requirements. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.