August 24, 2019

Archives for January 25, 2016

Colorado Court of Appeals: State Payments Were Not Made for Purpose of Funding or Reimbursing Abortion Services

The Colorado Court of Appeals issued its opinion in Norton v. Rocky Mountain Planned Parenthood, Inc. on Thursday, January 14, 2016.

Jane Norton, in her capacity as former executive director of the Colorado Department of Public Health & Environment, instigated an audit to determine whether Rocky Mountain Planned Parenthood, Inc. (Planned Parenthood) was separately incorporated, maintained separate facilities, and maintained financial independence from Planned Parenthood of the Rocky Mountains Services Corporation (Services). Because the audit showed Planned Parenthood was charging below-market rent to Services, Norton concluded Planned Parenthood was subsidizing Services and therefore, because Services performed abortions, the state had been indirectly subsidizing abortions in violation of Colorado Constitution article V, section 50. After Norton’s audit and at her instigation, the state terminated its contractual relationship with Planned Parenthood and ceased all taxpayer funding of the organization.

Norton sued Planned Parenthood, the governor, and the directors of the Department of Health Care Policy & Financing and Department of Public Health & Environment on her own behalf as a taxpayer. In her complaint, Norton alleged that the state resumed making payments to Planned Parenthood in 2009 in violation of section 50. She asserted claims for declaratory and injunctive relief against the government defendants, unjust enrichment against Planned Parenthood for allegedly receiving unlawful payments of public funds, and the imposition of a constructive trust against Planned Parenthood.

The Colorado Court of Appeals held that, even read broadly, Norton’s complaint failed to allege that defendants made payments for the purpose of paying for any induced abortion. The court emphasized that the focus of section 50 is on the purpose of the payment as asserted by the payor, not the ultimate distribution of funds by the payee. The court noted that under Norton’s broad reading of section 50, if a state issued a paycheck to an employee and that employee then donated funds to Services, it would violate section 50, finding this an illogical and unsupportable construction of the section. The court rejected Norton’s interpretation as exceeding the plain language of section 50, noting the section cannot rationally be read to prohibit the state from paying money that may eventually end up in the hands of someone who performs abortions.

The court affirmed the district court’s order dismissing Norton’s complaint for failure to state a viable claim of violation of section 50.

Colorado Court of Appeals: Workers’ Compensation Act Requires Statutory Interest on All Past Due Amounts

The Colorado Court of Appeals issued its opinion in Keel v. Industrial Claim Appeals Office on Thursday, January 14, 2016.

John Keel, a resident of Mississippi, was killed in a workplace accident in Colorado. The employer paid workers’ compensation death benefits in Mississippi from 2010 to 2013, and claimants (Keel’s surviving spouse and children) applied for Colorado benefits. In 2013, an ALJ determined that Colorado had jurisdiction and the employer was liable for death benefits under the Colorado Workers’ Compensation Act. The ALJ left for future determination the amount of the death benefit, whether the employer should pay past due death benefits, and whether interest was due on past due amounts.

The employer subsequently calculated Keel’s average weekly wage and subtracted offsets for Social Security death benefits and Mississippi workers’ compensation benefits, and issued a check to claimants for $66,822 for past due death benefits. The employer also stated it owed claimants an additional $2,040.32 in interest, having subtracted the Mississippi death benefits paid from the past due Colorado death benefits and using the statutory 8% interest rate. Claimants contended the employer significantly miscalculated the interest award.

An ALJ agreed with the employer’s reasoning and ordered it to pay the amount of interest it had calculated. A panel of the Industrial Claim Appeals Office calculated interest differently and ordered employer to pay interest on $41,841.08 instead. On remand, the ALJ adopted the ICAO’s reasoning and ordered the employer to pay interest on the ICAO’s calculated amount. Claimants again appealed and the ICAO affirmed the ALJ’s order.

Claimants then appealed to the Colorado Court of Appeals, which clarified that the issue on appeal was what the effect of death benefits paid in another state was on past due Colorado benefits. The court agreed with claimants’ contention that the ICAO erred in determining that C.R.S. § 8-42-114 did not apply, and found that by its plain and ordinary language claimants were entitled to 8% interest on the entire past due amount, $66,822.

The court analyzed the ICAO’s reasoning and respectfully disagreed with its conclusions. The court noted that it was not bound by the ICAO’s conclusions, which were primarily based on policy concerns. ICAO relied on the Full Faith and Credit Clause in determining that the Mississippi benefits were subsumed by the Colorado benefits, but the court of appeals found the Full Faith and Credit Clause inapplicable where, as here, the industrial commission of one state lacks authority to bar recovery in another state. Rather, if more than one state has jurisdiction over a workers’ compensation claim, the claimant can seek successive awards from those states. Since the ICAO cited no Colorado authority to support its rationale, and instead applied out-of-state case law, the court of appeals found the panel’s reasoning flawed. ICAO was also concerned that the claimants might receive a windfall or a double recovery. The court found that the claimants in this case did not receive a double recovery because the Colorado benefits were offset by the Mississippi benefits. The panel also expressed concern that a claimant might time its recovery in a way to maximize benefits, which the court of appeals thought was a concern better addressed to the legislature.

The ICAO’s order was reversed with directions to remand to the ALJ so that she may order the employer to pay statutory interest on the entire past due amount.

Colorado Court of Appeals: Multiple Sentences Treated as One Continuous Sentence for Parole Eligibility Date Calculation

The Colorado Court of Appeals issued its opinion in Fetzer v. Colorado Department of Corrections on Thursday, January 14, 2016.

Fetzer v. Colorado Department of Corrections explored the application of C.R.S. § 17-22.5-101 to parole eligibility dates (PEDs) when an inmate has multiple concurrent and consecutive sentences that were imposed at different times. Fetzer was convicted of seven crimes between August 1988 and March 2000. In 2014, the Colorado Supreme Court issued Nowak v. Suthers, 320 P.3d 340 (Colo. 2014), in which it determined that for purposes of computing an inmate’s PED, C.R.S. § 17-22.5-101 requires the DOC to consider all of an inmate’s sentences as one continuous sentence.

Relying on Nowak, Fetzer requested that the DOC review his PED. The supervisor of time and release computations for the DOC determined Nowak was not applicable to Fetzer’s case and computed his PED based on the start date of his longest concurrent sentence. Fetzer filed a petition for mandamus relief in the trial court. The DOC filed a motion to dismiss, attaching an affidavit from the supervisor. The trial court did not timely receive Fetzer’s response to the DOC’s motion, although it was timely filed through the prison’s mail system, and the court granted the DOC’s motion to dismiss.

Fetzer appealed to the Colorado Court of Appeals, contending the trial court erred in dismissing his petition for mandamus and failing to construe his several sentences as one continuous sentence. The court of appeals agreed. The court concluded the trial court misapplied C.R.S. § 17-22.5-101, finding that it applies to concurrent and consecutive sentences alike and the sentences must be construed as one continuous sentence with an effective date of the date the first sentence became effective.

The court of appeals reversed the trial court’s judgment and remanded for recalculation of Fetzer’s PED.


Colorado Court of Appeals: Entry of Guilty Plea Equates to “Found Guilty” for School Board Vacancy Statute

The Colorado Court of Appeals issued its opinion in Esquibel v. Board of Education Centennial School District on Thursday, January 14, 2016.

Augustine Esquibel was a director on the Centennial School Board. In 2011, while he was on the board, he pleaded guilty to resisting arrest and felony cocaine possession and received a deferred judgment. Approximately two weeks after he entered his plea, the Board declared his seat vacant based on a director vacancy statute that provides a seat shall be deemed vacant if a director is found guilty of a felony. Esquibel sought a preliminary injunction to prevent enforcement of the Board’s declaration, arguing that he would only be “found guilty of a felony” if he failed to comply with his plea agreement. The district court disagreed and ruled Esquibel was not likely to prevail on the merits. On appeal, the court of appeals analyzed the statutory language and determined that Esquibel was “found guilty” when he entered his guilty plea.

The court of appeals affirmed the district court. Judge Hawthorne dissented; he would have excluded a plea of guilty from the meaning of “found guilty of a felony” in the director vacancy statute.


Colorado Court of Appeals: Teacher Attendance Records Not Personnel Records for CORA Purposes

The Colorado Court of Appeals issued its opinion in Jefferson County Education Association v. Jefferson County School District R-1 on Thursday, January 14, 2016.

This case discussed whether a record of a teacher’s sick leave is part of the teacher’s personnel file for purposes of the Colorado Open Records Act (CORA). In September 2014, some teachers at four Jefferson County high schools engaged in a “sick out” to protest specific school board proposals, resulting in the schools closing for the day. In February 2015, a Jefferson County resident requested the names of all teachers who were sick on that specific day pursuant to CORA. The school district decided to release the records, but the Jefferson County Education Association, a teachers union, did not want the district to release the records.

The union filed a C.R.C.P. 106(a)(2) motion in the trial court, requesting that the court order the district to deny the CORA request. The union asked for mandamus relief, arguing the records were part of the teachers’ personnel files. The trial court ultimately denied the union’s motion but granted a stay pending appeal. On appeal, the Colorado Court of Appeals focused on whether defendants had a clear duty to withhold the records from the CORA request. The court determined that, in fact, the defendants had a clear duty to disclose the records under CORA. The court drew a distinction between the types of record expressly exempted from CORA, such as personal demographic information, and the requested records in this case. Because the teachers were public employees whose absence affected their jobs, and because their absence was conspicuous to the public, the court of appeals found that the records of the teachers’ absences were not contained in the exemption to CORA. Further, because the teachers were paid with public funds, and the sick days were paid days, the court found that the district’s records of the sick days were public records for CORA purposes.

The trial court’s order was affirmed.

Colorado Court of Appeals: Announcement Sheet, 1/21/2016

On Thursday, January 21, 2016, the Colorado Court of Appeals issued no published opinion and 30 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: Unpublished Opinions, 1/22/2016

On Friday, January 22, 2016, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Lowe

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