May 19, 2019

Archives for October 16, 2015

Colorado Supreme Court: Despite Counsel’s Ineffective Assistance, Defendant Knowingly, Voluntarily, and Intelligently Decided to Testify

The Colorado Supreme Court issued its opinion in People v. Quintero-Amador on Tuesday, October 13, 2015.

CAR 4.1(a)—Fifth Amendment—Sixth Amendment.

In this interlocutory appeal brought by the People pursuant to CAR 4.1(a), the Supreme Court reversed the trial court’s order suppressing at retrial the testimony given by defendant at his first trial. The Court concluded that the trial court erred in suppressing this evidence because defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights when he testified at his first trial. The Court further concluded that trial counsel’s ineffective assistance did not directly affect defendant’s prior testimony, thus precluding a finding that the admission of this testimony would violate defendant’s Sixth Amendment rights.

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

Colorado Court of Appeals: Talent Agency Not Employer for Unemployment Insurance Tax Purposes

The Colorado Court of Appeals issued its opinion in Division of Unemployment Insurance Employer Services/Integrity v. Industrial Claim Appeals Office on Thursday, October 8, 2015.

Employees of a Talent Agency for Unemployment Insurance Tax Purposes.

Marbles Kids, Inc. (Marbles) is a talent agency that represents individuals seeking acting and modeling work, most of whom are children. Marbles provides possible candidates for auditions, and the artists are free to turn down the auditions. The artists have contracts with Marbles stating that Marbles will receive a percentage commission on any assignments booked through them. The clients pay Marbles, and Marbles deducts its commission and pays the artist the remaining amount.

The Division of Unemployment Insurance Employer Services—Integrity/Employer Audits (Division) issued a liability determination that the artists were in covered employment with Marbles and thus Marbles was required to pay unemployment insurance tax premiums on amounts paid to artists. Marbles appealed, and the hearing officer affirmed. The Industrial Claim Appeals Office (Panel) reversed.

On appeal, the Division argued that the Panel erred in concluding that no employment relationship existed. Under the Colorado Employment Security Act, employment requires a showing that a “service [has been] performed by an individual for another.” Service has been defined as “an act done for the benefit or at the command of another.” The Division argued that the artists performed their acting and modeling services “at the command” of Marbles. The Court of Appeals disagreed. The artists were free to reject auditions or assignments from Marbles’ clients and were not “at the command” of Marbles. The Court also rejected the Division’s argument that the artists performed services “for the benefit of” Marbles. The artists did not provide a benefit for Marbles; rather, Marbles worked for the artists in finding them work with third parties. The artists worked for clients, not for Marbles.

Because the artists did not perform acting or modeling services for Marbles, Marbles was not an employer of the artists and they were not Marbles’ employees. Accordingly, Marbles was not required to pay unemployment insurance tax premiums on the amounts it paid the artists after deducting its agent commissions. The Panel’s order was affirmed.

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

Colorado Court of Appeals: Breeder of Rodents for Food Needs “Pet Animal” License to Operate Facility

The Colorado Court of Appeals issued its opinion in Salazar v. Kubic on Thursday, October 8, 2015.

Pet Animal Care and Facilities Act—Rats and Mice are Pet Animals.

Kubic, doing business as the Willards Rodent Factory, raises and houses more than 200 mice and rats at her facility. The rodents are sold as feed for snakes and other carnivores. Until March 2013, Kubic had a valid license issued under the Pet Animal Care and Facilities Act (PACFA) to operate a “pet animal facility,” but she let it expire.

In June 2013, the Colorado Commissioner of Agriculture issued a cease and desist order to Kubic because of the lapsed license. She continued to operate, and the trial court granted the Commissioner’s request for a permanent injunction to prevent her from operating without the required PACFA license. The injunction was stayed pending the outcome of this appeal.

Kubic argued that the trial court erred in its interpretation of PACFA’s definitions of “pet animal” and “pet animal facility” to require her to be licensed to operate her facility. Specifically, she argued that her mice and rats are not within the PACFA’s definition of “pet animal.” The Court of Appeals disagreed, holding that the statutory language expressly includes mice and rats. The judgment was affirmed.

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

Colorado Court of Appeals: Announcement Sheet, 10/15/2015

On Thursday, October 15, 2015, the Colorado Court of Appeals issued no published opinion and 36 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: Unambiguous Language of Pension Plan Precludes Relief Sought

The Tenth Circuit Court of Appeals issued its opinion in Martinez v. Plumbers & Pipefitters National Pension Plan on Wednesday, July 29, 2015.

Joseph Martinez was a long-term participant in the Plumbers and Pipefitters National Pension Plan, a multiemployer defined benefit pension plan governed by ERISA. In 2004, Martinez retired from plumbing and utilized the Plan’s contingent early retirement pension. He simultaneously applied for Social Security disability benefits but was denied, causing his provisional early retirement pension to automatically convert into a non-disability Early Retirement Pension. In 2006, Martinez decided to return to work and his Early Retirement Pension benefits were suspended pursuant to the Plan’s provisions. When he retired again in 2009, Martinez’s Early Retirement Pension benefits resumed after a six-month suspension period. Martinez again applied for Social Security disability benefits and this time was approved. He sought to convert his Early Retirement Pension into a Disability Pension at that time, which would have provided him a much larger monthly stipend. The Plan administrator denied his request based on the Plan language.

Martinez utilized the Plan’s appeal process and appealed the adverse determination to the Plan’s Board of Trustees, arguing (1) because he now met the criteria for disability under the plan, his benefits should be converted to disability benefits; (2) the SSA’s favorable determination should trigger an automatic conversion under the Plan; and (3) he was entitled to an adjustment because his return to work and subsequent re-retirement resulted in a new effective date of benefits. The Trustees upheld the denial of benefits, maintaining that the Plan provisions precluded him from converting his benefits. Martinez next sought review in state court, and the Plan removed to federal court. The district court also affirmed the denial of benefits for the same reasons as the Trustees. Martinez appealed to the Tenth Circuit.

The Tenth Circuit reviewed the Plan and determined that the Plan language unambiguously precluded the relief sought by Martinez. The Plan contains specific provisions for conversion to disability benefits, which did not apply to Martinez’s situation, and also contains language for the situation where an early retirement pensioner returns to work for a period of time. The Tenth Circuit expressed sympathy for Martinez but upheld the Plan’s denial of benefits.

Tenth Circuit: Unpublished Opinions, 10/15/2015

On Thursday, October 15, 2015, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Steele

Developers Surety & Indemnity Co. v. Barlow

Plummer v. McDermott

Bashant v. McCollum

Adams v. Colvin

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