June 16, 2019

Archives for November 11, 2015

Colorado Court of Appeals: C.R.C.P. 12(b)(5) Motions Disfavored and Should Only Be Granted If No Facts Support Plaintiff

The Colorado Court of Appeals issued its opinion in Masters v. School District No. 1 in the City & County of Denver on Thursday, November 5, 2015.

Teacher Employment, Compensation, and Dismissal Act—Contract Clause—Due Process.

Plaintiffs were employed as full-time teachers by Denver Public Schools and had achieved non-probationary status under the Teacher Employment, Compensation, and Dismissal Act (TECDA). Plaintiffs brought the underlying action in district court, alleging that TECDA violated their rights under the Colorado Constitution’s contract clause and due process clause. The trial court granted defendant’s motion to dismiss both claims.

On appeal, plaintiffs contended that the district court erred by dismissing their contract clause claim. TECDA created a contractual relationship between school districts and teachers. Non-probationary status is achieved under TECDA after a teacher completes a probationary teaching period, and that status conferred on the teacher protections against dismissal. Therefore, the district court erred by dismissing plaintiffs’ contract clause claim under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted.

Plaintiffs also contended that the district court erred by dismissing their due process challenge to the mutual consent provisions of TECDA. TECDA provides that non-probationary teachers may be dismissed only for statutorily specified reasons constituting “good and just cause” and only after certain procedures are followed. Before Senate Bill (SB) 191 was passed, TECDA required a school district to find a new position for a displaced non-probationary teacher, and the receiving school was required to accept the teacher. Such for-cause dismissal provisions create a constitutionally protected property interest in continued employment. Through SB 191, the legislature replaced this procedure with a “mutual consent” procedure whereby a displaced non-probationary teacher may be assigned to a position at another school only with the receiving principal’s consent and input from at least two teachers at the school, and the school district was authorized to place on unpaid leave any displaced non-probationary teacher who has not secured a mutual consent position in the district within 12 months or two hiring cycles, whichever is longer. Before being placed on unpaid leave, however, non-probationary teachers have a due process right to a hearing in which the teacher may attempt to show that the purported reason for which she was placed on unpaid leave was not the actual reason or that the placement was effected in an arbitrary or unreasonable fashion. Therefore, the district court erred in dismissing the plaintiffs’ due process claim for failure to state a claim upon which relief can be granted. The judgment was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Excess Mill Levy Tax Illegal Under Special District Act

The Colorado Court of Appeals issued its opinion in Prospect 34, LLC v. Gunnison County Board of County Commissioners on Thursday, November 5, 2015.

Mill Levy—Abatement—Illegal—Abuse of Discretion.

Reserve Metropolitan District No. 2 (RMD2) is a special district located entirely within the town of Mt. Crested Butte (Town) in Gunnison County. RMD2’s service plan—a document statutorily required to organize a special district—states that RMD2’s mill levy “shall not exceed 50 mills, subject to Gallagher Adjustments,” and that any levy beyond 50 mills requires Town approval. By 2013, the mill levy totaled 52.676 mills, including the Gallagher Adjustment of 2.676 mills. The RMD2 board approved certifying to the Gunnison County Board of County Commissioners (BOCC) 55.676 mills, 3mills in excess of the cap in the 2000 service plan, which the Town counsel protested. When RMD2 taxed Prospect Development Company, Inc., and Prospect 34, LLC (collectively, Prospect) at a higher rate, Prospect petitioned the BOCC to abate the excess taxes. After the BOCC denied the petition, Prospect appealed to the Board of Assessment Appeals (BAA). Instead of reaching the merits of this issue, the BAA resolved it against Prospect on the basis of the court’s order denying a summary judgment motion on this issue in a parallel district court action involving RMD2 and Prospect.

On appeal, Prospect first contended that the BOCC must abate the excess mill levy under CRS § 39-10-114(1)(a)(I)(A). The four grounds for abatement provide relief from taxes “levied erroneously or illegally.” Here, the mill levy caps are enforceable. Because the stated procedure was not followed to increase those caps, the excess mill levy was illegal.

Prospect also contended that the BAA acted arbitrarily and capriciously and abused its discretion by relying on an order denying summary judgment as a final determination. Because such an order is not a final determination of the issue raised in the motion, the BAA abused its discretion by not exercising its authority to decide whether the excess mill levy was illegal. The order was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Defendant Entitled to Hearing Under Crim. P. 35 if Facts Alleged Would Provide Basis for Relief

The Colorado Court of Appeals issued its opinion in People v. Morones-Quinonez on Thursday, November 5, 2015.

Ineffective Assistance of Counsel—Advising of Immigration Consequences.

Defendant was charged with one count of criminal possession of a forged instrument and one count of criminal impersonation after officers conducting a traffic stop discovered a false identification card in her possession. She hired a lawyer whose practice focused on immigration and criminal law to represent her in both the criminal case and the removal proceedings that had been subsequently initiated.

Defendant alleged in her Crim.P. 35(c) motion that she was adamantly opposed to accepting any plea offer that would make her ineligible for relief from deportation. Her lawyer recommended she plead guilty to criminal impersonation, assuring her that she would be “just fine” in immigration court because it was “minor felony” and would not affect her immigration case. Defendant pleaded guilty to criminal impersonation and was later order deported by an immigration law judge. She filed this Crim.P. 35(c) motion, alleging ineffective assistance of counsel. She contended that if she had been properly advised, she would have rejected the plea and proceeded to trial. The district court denied the motion without a hearing.

Defendant was entitled to a hearing so long as she asserted facts in her post-conviction motion that, if true, would provide a basis for relief. Applying the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), the Court of Appeals examined whether defendant showed that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that counsel’s deficient performance prejudiced the defendant.

The Court found that defendant had sufficiently pleaded deficient performance by her counsel. The Court disagreed that the district court could find as a matter of law that defendant’s allegation of prejudice was insufficient. It also found that the district court’s advisement did not cure any potential prejudice from the lawyer’s advice. Accordingly, the order was reversed and the case was remanded for an evidentiary hearing.

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

Tenth Circuit: Unpublished Opinions, 11/10/2015

On Tuesday, November 10, 2015, the Tenth Circuit Court of Appeals issued seven published opinions and six unpublished opinions.

Mark v. Northern Navajo Medical Center

United States v. Davis

Ny v. Lind

Rucker v. Gilmore

Munoz v. Lynch

United States v. Burns

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