August 22, 2019

Archives for October 22, 2014

Colorado Supreme Court: PERA Members Have No Continual Right to Cost of Living Adjustments

The Colorado Supreme Court issued its opinion in Justus v. State of Colorado on Monday, October 20, 2014.

Colorado Public Employee’s Retirement Association Pension Plan (PERA)—Cost-of-Living Adjustment—Contracts Clauses of U.S. and Colorado Constitutions.

In this decision, the Colorado Supreme Court determined whether Colorado PERA members have contractual rights for life without change to the cost-of-living adjustment (COLA) formulas in place at their respective retirements. On summary judgment, the district court ruled that PERA retirees had no such contract right to an unchangeable COLA formula.

The court of appeals disagreed. It determined that the retirees have a contract right, and remanded for further review to determine whether Senate Bill 10-001 violated the Contract Clauses of the U.S. and Colorado Constitutions.

The Court held that the 2010 PERA legislation did not establish any contract between PERA and its members entitling them to perpetual receipt of the specific COLA formula in place on the date each became eligible for retirement or on the date each actually retires. The judgment of the court of appeals was reversed and the trial court’s summary judgment order dismissing this case was upheld.

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

Tenth Circuit: Forged Check is Not “Of” Bank Into Which it is Eventually Deposited

The Tenth Circuit Court of Appeals issued its opinion in United States v. Powell on Monday, September 22, 2014.

Crosby Powell attracted the attention of federal authorities in 2006 when he deposited stolen checks into his accounts at UMB Bank, Wells Fargo, and TCF Bank. An investigation revealed he had altered payee information or forged endorsements on some of the checks. He was subsequently charged with 11 counts of uttering or possessing forged checks and 17 counts of possessing stolen mail. Powell appealed only the 11 counts of uttering or possessing forged checks, arguing for the first time on appeal that the government’s position that the checks were “of” the bank into which they were deposited was a faulty reading of the statute.

The Tenth Circuit agreed with Powell that the checks were not “of” the depositing organization, but his claims were subject to plain error review since they were not raised in district court. Of the 11 counts, 8 were plainly erroneous, since the checks involved in those counts were not issued by federally insured banks operating in interstate commerce. The Tenth Circuit reversed the convictions regarding these 8 checks.

For two of the remaining three counts, the checks were issued by Wells Fargo, which is a federally insured bank operating in interstate commerce, so the Tenth Circuit found no error in Powell’s convictions and affirmed. The final count was based on two checks, one of which was issued by Wells Fargo and one of which was a U.S. Treasury check. Because one of the checks supporting the count was “of” a federally insured bank, the Tenth Circuit affirmed Powell’s conviction on this count.

The case was affirmed in part, reversed in part, and remanded for further proceedings consistent with the Tenth Circuit opinion.

Tenth Circuit: Unpublished Opinions, 10/21/2014

On Tuesday, October 21, 2014, the Tenth Circuit Court of Appeals issued four published opinions and five unpublished opinions.

Pelletier v. United States

Mendez v. Colvin

Thompson v. Robison

Silva v. Colvin

Thompson v. Martin

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