December 17, 2018

Archives for January 2018

Colorado Supreme Court: Political Committee Must Report Payments to Law Firm as Contributions, Not Expenditures

The Colorado Supreme Court issued its opinion in Campaign Integrity Watchdog v. Alliance for a Safe and Independent Woodmen Hills on Monday, January 30, 2018.

Election Law—Constitutional Law—Political Speech.

The supreme court held that a political committee must report payments to a law firm for its legal defense as contributions, but not as expenditures. “[E]xpenditures . . . and obligations” under C.R.S. § 1-45-108(1)(a)(I) are limited to payments and obligations for expressly advocating the election or defeat of a candidate; payments for legal defense are not for express electoral advocacy. But, pursuant to Colo. Const. art. XXVIII, § 2(5)(a)(II), payments to a third-party law firm for a political committee’s legal defense count as reportable contributions because they are payments “made to a third party for the benefit of any . . . political committee.”

The court reversed the administrative law judge’s determination that the contribution-reporting requirement is unconstitutional as applied to Alliance for a Safe and Independent Woodmen Hills (Alliance). Under Buckley v. Valeo, 424 U.S. 1, 61–68 (1976), for political committees like Alliance whose major purpose is influencing elections, the governmental interests in political transparency and preventing corruption justify the First Amendment burdens of reporting and disclosure. It makes little difference that the payments here were made post-election and for legal defense; elections are cyclical and money is fungible.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Lawyer’s Donations of Legal Services Were Not “Contributions” Under Campaign Finance Law

The Colorado Supreme Court issued its opinion in Coloradans for a Better Future v. Campaign Integrity Watchdog on Monday, January 29, 2018.

Election Law—Disclosure.

A lawyer filed a report for Coloradans for a Better Future (Better Future), a political organization, without charging a fee. The supreme court reversed the court of appeals’ determination that Better Future was required to report the donated legal service as a “contribution” under Colorado’s campaign-finance laws. The constitutional definition of “contribution” does not address political organizations, and neither part of the statutory definition relied on by the court of appeals covers legal services donated to political organizations. C.R.S. § 1-45-103(6)(b) does not apply to political organizations, and the word “gift” in C.R.S. § 1-45-103(6)(c)(I) does not include gifts of service.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/30/2018

On Tuesday, January 30, 2018, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

McKinney v. United States

United States v. Hutchinson

Anderson v. Arnold

Dangim v. FNU LNU

United States v. Aguirre

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

Colorado Judicial Ethics Advisory Board Opinion Issued Regarding Memorial Fundraiser for Judge’s Late Son

The Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2018-01 on January 29, 2018. The opinion addresses whether a judge can help plan, play in, and invite others to play in a golf tournament designed to raise funds for an endowed scholarship honoring the judge’s late son if the judge’s name and title are not used to promote the tournament. The C.J.E.A.B. determined that the tournament may bear the name of the judge’s late son, and may invite family friends, lawyers, non-lawyers, and others to play in the tournament. The judge may also help plan the tournament, personally solicit family members and judges not under the judge’s supervision or appellate authority to participate in the tournament, and attend and play in the tournament.

For the complete text of C.J.E.A.B. Opinion 2018-01, click here. For all of the Colorado Judicial Ethics Advisory Board’s opinions, click here.

Colorado Supreme Court: Announcement Sheet, 1/29/2018

On Monday, January 29, 2018, the Colorado Supreme Court issued two published opinions.

Coloradans for a Better Future v. Campaign Integrity Watchdog

Campaign Integrity Watchdog v. Alliance for a Safe and Independent Woodmen Hills

Summaries of these cases are forthcoming.

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, 1/29/2018

On Monday, January 29, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Chamber of Commerce of the United States of America v. United States Environmental Protection Agency

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

Tenth Circuit: Nursing Home Liable for Abuse to Resident

The Tenth Circuit Court of Appeals issued its opinion in Racher v. Westlake Nursing Home Limited Partnership on Thursday, September 28, 2017.

Mrs. Mayberry was abused by two certified nursing assistants while in Quail Creek Nursing Home, which is owned by Westlake. This case was filed against Westlake under Oklahoma law for negligence, negligence per se, and intentional infliction of emotional distress. At trial, the jury found for plaintiffs, Westlake appeals.

The two nursing assistants involved, Kaseke and Gakunga, worked at Quail Creek and were Mayberry’s caretakers. Both assistants had numerous write-ups in their personnel files for infractions and refusal to complete assigned duties, including sleeping on the job, which was grounds for immediate termination; however, neither were terminated for that infraction.

One of Mayberry’s daughters testified that the family began to notice bruising on Mayberry’s hands and arms soon after moving Mayberry to Quail Creek. These concerns went unexplained by Quail Creek. Although it was difficult for Mayberry to communicate due to dementia, Mayberry began to cry out to the family for help and that someone was hurting her mouth. To monitor Mayberry, the family placed a hidden camera in her room. The videos show Gakunga slapping Mayberry, forcibly stuffing Mayberry’s mouth with wadded up gloves, and performing compressions on Mayberry’s chest to force her to empty her bladder. Kaseke is seen watching this take place. Both assistants are seen roughly lifting Mayberry from her wheelchair and pushing her to lay down. Mayberry’s family brought the videos to Quail Creek’s attention. Both assistants were arrested. Mayberry died three months after the abuse was discovered.

Plaintiffs brought suit against Quail Creek due to the abuse that occurred and was perpetrated by Quail Creek employees, and on the grounds that Quail Creek is directly negligent in failing to investigate and report the incidents of abuse. At trial, the jury found that Westlake, the owner of Quail Creek, was liable on theories of negligence and negligence per se, that Westlake acted with reckless disregard for the rights of others, and that plaintiffs were entitled to compensatory damages in the sum of $1.2 million.

Westlake raised four issues on appeal: (1) whether the district court erred by failing to reduce compensatory damages to the statutory cap of $350,000; (2) whether the district court erred by failing to reduce the allegedly excessive compensatory damage award of $1.2 million or, in the alternative, to grant a new trial; (3) whether the district court erred by allowing allegedly improper closing argument regarding punitive damages during the first phase of the trial; and (4) whether the district court erred by admitting evidence of an unrelated incident subject to a limiting instruction.

As for the first issue, Oklahoma law caps noneconomic damages at $350,000 unless special findings are made. The district court concluded that the requirements for lifting the cap were satisfied in this case. The Tenth Circuit affirmed the district court decision. Because Westlake failed to raise the statutory damage cap at any point before the trial was completed, the Tenth Circuit held that Westlake waived the defense.

Next, Westlake argued that the compensatory damages awarded by the jury were excessive and that the district court erred by declining to either reduce the award or grant a new trial. The district court denied this motion because it concluded that there was substantial evidence in the record to support the jury’s award. Oklahoma recognizes a broad jury discretion in determining the amount of damages to award. The Tenth Circuit considered the entire trial record and viewed the evidence in the light most favorable to plaintiffs in concluding that the damages awarded were not excessive. The Circuit found that the jury could have reasonably concluded that Mayberry was abused on a daily basis and that the abuse caused emotional distress that was significant enough to have contributed to her death.

Westlake then argued that the district court erred by allowing counsel for plaintiffs to make arguments that invited an award based on consideration of deterrent and punitive rather than compensatory factors. Although the Tenth Circuit agreed that portions of the argument were improper at the time they were presented, Westlake failed to show that the argument led the jury to return a verdict based on passion or prejudice rather than the evidence presented at trial. The Tenth Circuit noted that not all errors require reversal. In this case, the Circuit found that the jury was not prejudiced by the poorly timed statements regarding the award of punitive damages. The jury was clearly instructed as to the correct procedure and the size of the awards, when considered in the context of the evidence presented at trial. The Tenth Circuit declined to warrant a new trial based on these circumstances.

Lastly, Westlake argued that the district court erred by admitting evidence of another incident subject to a limiting instruction. Prior to trial, Westlake had filed to exclude any evidence that Kaseke caused any physical or mental harm to any residents at Quail Creek on April 4th. This evidence at issue included two more instances of abuse, where two nursing students testified that Gakunga struck Mayberry on the forehead and put her into a cold shower, and Kaseke sprayed an unnamed resident in the face with cold water so violently that the resident’s dentures fell out. The district court denied Westlake’s motion because the evidence would be relevant, not unfairly prejudicial, and admissible if the abuse in Mayberrry’s case occurred after April 4th. The Tenth Circuit agreed with the district court because there was a limiting instruction given to the jury that properly allowed the jury to consider the incidents only if they took place before the alleged abuse of Mayberry.

The Tenth Circuit AFFIRMED the district court’s judgment.

Tenth Circuit: Unpublished Opinions, 1/26/2018

On Friday, January 26, 2018, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Young v. City of Idabel

United States v. Wiles

Hamilton v. Allbaugh

United States v. Janatsch

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

Application Period Open for Clear Creek County Vacancy

The Colorado State Judicial Branch announced a vacancy on the Clear Creek County Court, occasioned by the appointment of Hon. Rachel Olguin-Fresquez to the Eagle County Court, effective February 1, 2018. Applications are now being accepted for the Clear Creek County Court vacancy. Eligible applicants must be qualified electors of Clear Creek County and must have graduated high school or attained the equivalent. Application forms are available on the State Judicial website or from the ex officioclick here chair of the Fifth Judicial District Nominating Commission, Justice Monica Marquez. Applications must be received no later than 4 p.m. on February 8, 2018. Anyone wishing to nominate another must do so no later than February 1, 2018. For more information about the vacancy, .

Colorado Court of Appeals: Announcement Sheet, 1/25/2018

On Thursday, January 25, 2018, the Colorado Court of Appeals issued eight published opinions and 34 unpublished opinions.

People v. Figueroa-Lemus

People v. Campbell

People v. Palacios

People in Interest of Black

Town of Breckenridge v. Egencia, LLC

Airth v. Zurich American Insurance Co.

People in Interest of M.R.M.

People in Interest of J.L.

Summaries of these cases are forthcoming.

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, 1/25/2018

On Thursday, January 25, 2018, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Crowe v. Servin

Thompson v. Dowling

Alemar v. People of the State of Colorado

Flute v. United States

Flute v. United States

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

Brave New (Jobs) World

“The American work environment is rapidly changing.
For better or worse, the days of the conventional full-time job may be numbered.”

The above quote is from a December 5, 2016 Quartz article that reported the findings of economists Lawrence Katz (Harvard) and Alan Krueger (Princeton, former chairman of the White House Council of Economic Advisers) that 94% of all US jobs created between 2005 to 2015 were temporary, “alternative work” — with the biggest increases coming from freelancers, independent contractors, and contract employees (who work at a business but are paid by an outside firm).

These findings are consistent with what we looked at last time: how neoliberal economics has eroded institutional support for the conventional notion of working for a living, resulting in a more individuated approach to the job market. Aeon Magazine recently offered an essay on this topic: The Quitting Economy: When employees are treated as short-term assets, they reinvent themselves as marketable goods, always ready to quit. Here are some samples:

In the early 1990s, career advice in the United States changed. A new social philosophy, neoliberalism, was transforming society, including the nature of employment, and career counsellors and business writers had to respond. (Emphasis added.)

US economic intellectuals raced to implement the ultra-individualist ideals of Friedrich Hayek, Milton Friedman and other members of the Mont Pelerin Society…In doing so… they developed a metaphor — that every person should think of herself as a business, the CEO of Me, Inc. The metaphor took off, and has had profound implications for how workplaces are run, how people understand their jobs, and how they plan careers, which increasingly revolve around quitting.

The CEO of Me, Inc. is a job-quitter for a good reason — the business world has come to agree with Hayek that market value is the best measure of value. As a consequence, a career means a string of jobs at different companies. So workers respond in kind, thinking about how to shape their career in a world where you can expect so little from employers. In a society where market rules rule, the only way for an employee to know her value is to look for another job and, if she finds one, usually to quit.

I.e., tooting your own résumé horn is no longer not so much about who you worked for, but what you did while you were there. And once you’re finished, don’t get comfortable, get moving. (This recent Time/Money article offers help for creating your new mobility résumé.)

A couple years ago I blogged here about a new form of law firm entirely staffed by contract attorneys. A quick Google search revealed that the trend toward lawyer “alternative” staffing has been gaining momentum. For example:

This May 26, 2017 Above the Law article reported a robust market for more conventional associate openings and lateral partner hires, but included this caveat:

The one trend that we see continue to stick is the importance of the personal brand over the law firm brand, and that means that every attorney should really focus on how they differentiate themselves from the pack, regardless of where they hang their shingle.

Upwork offers “Freelance Lawyer Jobs.” “Looking to hire faster and more affordably?” their website asks. “ Tackle your next Contract Law project with Upwork – the top freelancing website.”

Flexwork offers “Flexible & Telecommuting Attorney Jobs.”

Indeed posts “Remote Contract Attorney Jobs.”

And on it goes. Whether you’re hiring or looking to be hired, you do well to be schooled in the Brave New World of “alternative” jobs. For a further introduction, check out these articles on the “Gig Economy” from Investopedia and McKinsey. For more depth, see:

The Shift: The Future of Work is Already Here (2011), by Lynda Gratton, Professor of Management Practice at London Business School, where she directs the program “Human Resource Strategy in Transforming Companies.”

Down and Out in the New Economy: How People Find (or Don’t Find) Work Today (2017), by University of Indiana Anthropology Professor LLana Gershon — the author of the Aeon article quoted above.

Next time, we’ll begin looking at three major non-human players in the new job marketplace: artificial intelligence, big data, and robotics. They’re big, they’re bad, and they’re already elbowing their way into jobs long considered “safe.”

 

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.