August 24, 2019

Archives for January 2016

Colorado Supreme Court: City Ordinance Effectively Barring Sex Offender Residence Does Not Conflict with State Law

The Colorado Supreme Court issued its opinion in Ryals v. City of Englewood on Monday, January 25, 2016.

Home Rule—Local Government Law—Land Use—Sex Offenders—Conflict in Matter of Mixed State and Local Concern—Preemption.

Having accepted jurisdiction over this certified question of law from the Tenth Circuit, the Supreme Court held that state law does not preempt Englewood’s Ordinance 34. The ordinance implicates a matter of mixed state and local concern by effectively barring sex offenders from residing in Englewood, but it does not conflict with Colorado’s statutory regime for regulating sex offenders as required for state preemption. Nothing in the state regulatory regime prevents home-rule cities from barring sex offenders from residing in their communities, nor is there anything that suggests sex offenders are permitted to live wherever they wish. Furthermore, a state statutory provision specifically authorizes local law enforcement to decline an offender’s application for residency if it violates local law. As such, Ordinance 34 does not conflict with state law and thus is not preempted. This Court therefore answered the certified question in the negative and returned this case to the Tenth Circuit for further proceedings.

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

Tenth Circuit: Unpublished Opinions, 1/25/2016

On Monday, January 25, 2016, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.

United States v. Sparks

Mancell v. McHugh

Cain v. Aragon

United States v. Lewis

Pemberton v. Patton

Montoya v. Hunter Douglas Window Fashions, Inc.

White v. City of Albuquerque

Pemberton v. Patton

Case summaries are not provided for unpublished opinions.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

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.

Tenth Circuit: Unpublished Opinions, 1/21/2016

On Thursday, January 21, 2016, the Tenth Circuit Court of Appeals issued three published opinions and no unpublished opinions.

Case summaries are not provided for unpublished opinions.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

The Legal Times They Are A-Changin’ (Part Two)

Rhodes_1

This is the second part of two-part miniseries. (Here’s Part One.) The following is taken from the Preface to a just-published collection of these Legal Connection blog posts from the past year.

The Culture of Law

Having followed new practice models and technologies all the way to a new role for the law in human culture, I stumbled across one more stunning realization: In order for the legal entrepreneurial practice models and technologies to sustain themselves within a context still recognizable as what we consider to be the legal profession today, a new law culture would need to arise with them. Without a new law culture, the new law would be patched onto the old version of the legal profession and the garment would tear, leaving what was left of the profession to degenerate into non-visionary squabbling over issues like non-lawyer ownership of legal services and multi-jurisdictional legal entities. The big picture would be lost in a myopic preoccupation with making new developments fit existing paradigms. Meanwhile the larger legal paradigm would keep shifting, resulting in a haphazard and messy arrival.

That realization led to a follow up series on The Culture of Law, which occupied the second half of 2015. Following Prof. Austin’s lead and my personal interest in neuroscience, I examined how culture is formed from the inside out — beginning literally with how lawyers’ brains are re-wired in law school and entry into legal practice. Among other things, I learned that culture is formed and changed in individual brains, and is transmitted from one brain to another until the Tipping Point is reached and the collective brains of the culture find themselves wondering how it is that the old culture seems so entirely gone and the new one so entirely present. When that day comes, the New Normal will be the only normal some people in the law culture have ever known. Pause for a moment and try to get your head around what that would be like, if that were true of you.

Why This Collection?

Rhodes_5You noticed, of course, that this book’s cover and title mimic Bob Dylan’s seminal 60’s album and its anthem “The Times They Are A-Changin’.” Referencing Dylan and the 60’s is not a me-too grab for social revolutionary status, it’s a recognition of the social revolution that is already upon us. Something much, much bigger than new practice technologies and non-lawyer ownership of legal service providers is shaking underfoot. The practice models and cultural dynamics that make up the legal profession’s status quo today simply will not be with us in 50 years. Some won’t be here in 20, maybe not in 5 or 10. Some are gone already. As they disappear — one by one, and in batches — a new world of law will emerge to replace them. And when it does, the law’s role in human society — and thus human society itself — will have changed with it. All of that will happen though a process that is evolutionary, inevitable, and already well underway — begun, literally, in the re-wiring of law student and lawyer brains.

And yet…

In the midst of all of this seismic change, there is yet one essential element waiting to fully play its hand: us — that is, those of us who inhabit the legal profession, who consider it an essential milieu of our work and our lives, and who care enough to lend a hand in creating its new future and culture, which wait for our participation to bring them fully into existence. The question is not whether the new future and culture of law will arrive, it is whether we’ll lend a hand in bringing it about.

“The best way to predict the future is to create it.”

Suddenly Dylan’s lyric has new relevance:

Your old road is rapidly fading
Please get out of the new one if you can’t lend your hand.

The lyric is both a challenge and an invitation, which brings us back to that question about the legal profession’s curious indifference to its own welfare. As it turns out, our neurological wiring has such an innate allegiance to status quo — even to our own detriment — that most of us simply won’t get the invitation, or won’t open it if we do. But for those who do, and who choose to engage with the massive professional and societal developments already underway, change will become not merely evolutionary, but revolutionary. For them, the times will become a once-in-forever passion and opportunity.

Revolutions spawned in changing times require extraordinary visionary courage, expressed ultimately not merely in ideas but in action. Which is why both the Future of Law and Culture of Law blog series ended the same way, with the same insight: “The best way to predict the future is to create it.” And why both offer us the same choice:

Will we rise to the challenge and create the future of law
and a new culture of law to support it?

Or will we simply hunker down and go along for the ride,
letting the unpredictable forces of cultural evolution handle it for us,
at the risk of ending up somewhere we never intended to go?

I would be delighted if this collection helps us to frame our response.

(The quote, “The best way to predict the future is to create it” has been ascribed to a lot of different people, including Peter Drucker and Alan Kay. But according to the Quote Investigator, it appeared first in 1963 in the book Inventing the Future by Dennis Gabor, who was later awarded a Nobel Prize in Physics for his work in holography.)

Rhodes_4This second collection of Kevin’s blog posts focuses on the future and culture of law, including insights on technology, innovation, neuro-culture, and entrepreneurship. Extensively researched, visionary, and written in a crisp, conversational style by a man on a mission to bring wellbeing to the people who learn, teach, and practice the law.

 

 

 

Colorado Court of Appeals: Student Loan Debt Improperly Characterized as Income for Maintenance Determination

The Colorado Court of Appeals issued its opinion in In re Marriage of Morton on Thursday, January 14, 2016.

In this dissolution action, husband and wife were married for approximately six years. During the marriage and after the parties separated but before permanent orders entered, wife attended school to become a radiological technologist and later took a sonogram course. She took out student loans for her schooling. In dividing marital property, the trial court concluded that wife’s student loan debt was her separate debt because it was incurred after the parties’ separation and it was not “fair or equitable” to treat the debt as marital. Wife contended this was an abuse of discretion, and the court of appeals agreed, finding any debt incurred during a pre-decree separation was marital. The court remanded for the district court to first treat the student loan debt as marital and then decide equitable distribution as part of the overall property distribution.

Wife also contended the trial court erred by considering her student loans a financial resource in determining the maintenance award, and the court of appeals again agreed. By considering the loan proceeds as income, the trial court ignored the need for the loans to be repayed with interest. The court determined that by allowing loan proceeds to be counted as income, the trial court thwarted the purpose of the maintenance statute. The court of appeals remanded for reconsideration of the maintenance award without considering the student loans as a financial resource or income of any kind.

Wife further contended the trial court erred in determining the maintenance award before fully dividing the parties’ marital and separate property, and the court of appeals again agreed, noting that the maintenance award depends on its findings and order dividing property. Without first dividing the property, the court cannot reasonably determine the requesting party’s maintenance needs.

Because the court remanded on the issues of maintenance and the division of marital property, it set aside the trial court’s attorney fee award. On remand, after dividing property and determining a maintenance award, the trial court could reconsider an award of attorney fees. The court of appeals instructed the trial court to base its decision on the parties’ financial circumstances at the time of remand.