May 24, 2019

Colorado Court of Appeals: Restitution Award Appropriate When Based on Amount Actually Paid by CVCB

The Colorado Court of Appeals issued its opinion in People v. Bohn on Thursday, December 31, 2015.

Assault—Restitution—Lost Wages—Future Wages.

Defendant’s neighbor attempted to stop defendant from assaulting two people. Defendant pushed the neighbor down a flight of stairs, causing a broken bone in the neighbor’s foot. After defendant pleaded guilty to second-degree assault and third-degree assault, the prosecution moved for $9,985 in restitution to be paid to the Crime Victim Compensation Board (CVCB), which the court granted. The documentation attached to the motion showed that the CVCB had paid the neighbor $3,185 for the neighbor’s medical bills and $6,800 to the neighbor for his lost wages.

On appeal, defendant contended that the district court erred by ordering restitution based in part on the CVCB’s payment to a crime victim for lost wages when, at the time the CVCB paid the claim, at least a portion of the payment was for wages that the crime victim expected to lose in the future. A district court may order restitution to reimburse a CVCB for payments it made to a crime victim for lost wages, some of which covered post-payment periods, so long as the wages at issue were based on work actually missed before the restitution order was entered. Here, the district court did not abuse its discretion in ruling that the prosecution proved the neighbor’s lost wages by a preponderance of the evidence. The documentation that the prosecution submitted—a lost wage form from the neighbor’s employer and a letter from the orthopedic practice—was sufficient to show that, before the restitution hearing and the court’s order of restitution, the neighbor actually lost the wages that the CVCB reimbursed. The order was affirmed.

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

HB 15-1035: Allowing Compensation for Certain Crime Victims and Their Families

On January 7, 2015, Rep. Rhonda Fields and Sen. John Cooke introduced HB 15-1035 – Concerning Changes to Crime Victim CompensationThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, in an incident of hit and run or careless driving, crime victim compensation (compensation) is only available if a death results. The bill allows for compensation when an incident of hit and run or careless driving causes bodily injury. The bill allows compensation to a person who is a dependent of the accused if the accused provided support for the person or the person’s dependents. The bill expands compensable losses to include the cost of rekeying vehicles or other locks necessary to ensure a victim’s safety. The bill clarifies the confidentiality of records of a crime victim compensation board (board) by prohibiting the discovery of certain records in a civil or criminal case except: To the extent necessary for a judicial review of the board’s decision; or Upon a showing that the information is only in the records of the board, and, after review by the court, the court determines that the disclosure would not endanger the victim or another person. The bill increases the maximum compensation to $30,000 and emergency compensation to $2,000 and eliminates the requirement that losses be at least $25. The bill requires medical service providers to suspend collection proceedings for 90 days while a claim for compensation is considered. Finally, the bill specifies that a court shall include the amount of compensation requested by a crime victim compensation board in a restitution order and how the amount may be established.

The bill was assigned to the Judiciary and Appropriations committees.

Tenth Circuit: Jury Verdict and Attorney Fee Award Upheld in Employee Class Action

The Tenth Circuit Court of Appeals issued its opinion in Garcia v. Tyson Foods, Inc. on Tuesday, August 19, 2014.

Tyson employees were required to don and doff certain protective clothing before and after performing job duties. Tyson originally compensated only certain employees for 4 to 7 minutes of this “K-code” time, eventually changing its policy to compensate all employees for 20 to 22 minutes of K-code time. However, based Tyson’s own study, employees were uncompensated for approximately 29 minutes per shift based on the times they punched in and punched out versus actual compensation.

A group of Tyson employees brought class and collective actions against Tyson, seeking unpaid wages for pre- and post-shift activities. After a jury returned an award for the employees and an attorney fee award, Tyson unsuccessfully moved for judgment as a matter of law. Tyson appealed the district court’s judgment and denial of its motion for judgment as a matter of law. Tyson also argued the attorney fee award was excessive.

The Tenth Circuit addressed Tyson’s first argument – whether the evidence was sufficient to support the verdict – and found it was. The question for the jury was whether the K-code system had resulted in underpayment, and the Tenth Circuit found ample reason in the evidence to support the jury’s decision that it had, including Tyson’s own study. Tyson also challenged the proof of underpayment as to each class member. The Tenth Circuit rejected that challenge, because the proof was unnecessary, the jury could rely on representative evidence, and Tyson’s supporting cases are inapplicable.

The jury awarded less to plaintiffs than they requested. Tyson interpreted this to mean that the jury found some class members were appropriately compensated. The Tenth Circuit disagreed, finding the evidence supported a finding of undercompensation for all class members, and noting that Tyson’s argument was speculative.

Finally, the Tenth Circuit addressed the attorney fee award. The Fair Labor Standards Act provides a right to attorney fees to prevailing plaintiffs. The district court awarded over $3 million in attorney fees, despite the much lower awards to the plaintiffs. Because of ongoing class litigation in another county, the district court adopted a procedure whereby it reviewed the attorneys’ time records in camera, allowed disclosure of the hourly rate and number of hours worked, and allowed each side the chance to depose someone on the other side familiar with the billing process. Tyson objected to this process, instead requesting full discovery of billing records. The Tenth Circuit upheld the process and the award, finding good cause for the district court’s procedure and award.

The judgment was affirmed.

SB 14-153: Authorizing Per Diem Payments and Expense Reimbursement for General Assembly Members Who Serve on State Entities

On March 7, 2014, Sen. Rollie Heath and Rep. Brian DelGrosso introduced SB 14-153 – Concerning Compensation of Members of the General Assembly Appointed to and Serving on State Entities. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes uniform payments of per diem and the reimbursement of expenses to current members of the general assembly who are appointed to serve on state entities created or authorized by statute on which members of the general assembly are statutorily required to be appointed to serve. When the general assembly is in session and legislative member s attend meetings of a state entity to which they are appointed, legislative members will only receive the per diem lodging and expense allowances and travel expenses that they receive as legislative members. When the general assembly is not in session or is in recess for more than three days and legislative members attend meetings of a state entity to which they are appointed, legislative members will receive the same per diem and travel and subsistence expenses received by legislative members for necessary attendance at meetings or functions or to legislative matters during the legislative recess or interim.

The bill is assigned to the State, Veterans, & Military Affairs Committee.

HB 13-1230: Creation of a Compensation Program for Persons Exonerated of Felony Crimes After Period of Incarceration

On February 13, 2013, Rep. Angela Williams and Sen. Lucia Guzman introduced HB 13-1320 – Concerning Compensation for Persons who are Exonerated of their Crimes After a Period of Incarceration. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

With certain limitations, the state shall compensate a person, or the immediate family members of a person, who has been:

  • Wrongly convicted of a felony, or wrongly adjudicated a juvenile delinquent for the commission of an offense that would be a felony if committed by a person 18 years of age or older;
  • Incarcerated; and
  • Exonerated and found to be actually innocent (an exonerated person).

The bill sets forth a judicial procedure whereby a person who is eligible to seek compensation from the state as an exonerated person, or the immediate family members of such a person, may petition a district court for an order declaring the person to be actually innocent and eligible to receive an order of compensation. Upon receipt of a petition, the attorney general and the district attorney shall each have 60 days to file a response in the district court. The response shall contain a statement that either:

  • The petitioner is eligible to seek compensation; or
  • The responding party contests the nature, significance, or effect of the evidence of actual innocence, the facts related to the petitioner’s alleged wrongful conviction, or whether the petitioner is eligible to seek compensation.

If the responding party contests the actual innocence of the petitioner, the district court shall set the matter for a trial, at which trial the burden shall be on the petitioner to show by a preponderance of the evidence that he or she is actually innocent of all crimes that are the subject of the petition and that he or she is eligible to receive compensation.

An exonerated person shall be compensated by the state in the form of:

  • Monetary compensation;
  • Tuition waivers at state institutions of higher education;
  • Compensation for child support payments owed by the exonerated person that became due during his or her incarceration, and interest on child support arrearages that accrued during his or her incarceration but which have not been paid;
  • Reasonable attorneys’ fees; and
  • The amount of any fine, penalty, court costs, or restitution imposed upon and paid by the exonerated person as a result of his or her wrongful conviction or adjudication.

An exonerated person shall receive monetary compensation in an amount of $70,000 for each year that he or she was incarcerated for the crime of which he or she has been exonerated. In addition to this amount, an exonerated person shall receive compensation in an amount of:

  • $50,000 for each year that he or she was incarcerated and awaiting execution; and
  • $25,000 for each year that he or she served on parole, on probation, or as a registered sex offender as a result of the criminal offense of which he or she has been exonerated. For a partial year of incarceration, an exonerated person shall receive a prorated amount that is based on the length of time that he or she was incarcerated.

The district court shall not issue to any person an order of compensation that includes any compensation for any period of incarceration during which the person was concurrently serving a sentence for an offense of which he or she has not been exonerated.

The district court shall reduce an exonerated person’s award of monetary compensation if, prior to the issuance of such award:

  • The exonerated person prevails in or settles a civil action against the state or against any other government body;
  • The judgment rendered in the civil action or the settlement of the civil action includes an award of monetary damages to the exonerated person; and
  • The award of monetary damages is intended to compensate the person for a period of incarceration that resulted from the person’s wrongful conviction or adjudication of a crime.

Under such circumstances, the district court shall reduce the award by an amount that is equal to the amount of monetary damages that the person is awarded and collects in the civil action; except that, a district court shall not offset any amount exceeding the total amount of monetary compensation awarded to the exonerated person.

The state controller or his or her designee shall issue an annual payment to an exonerated person within 14 days after receiving an order of compensation from a district court and annually thereafter until the state’s obligation is satisfied. An annual payment shall be $100,000; except that, if the remaining amount owed to the exonerated person is less than $100,000, then the annual payment shall be the remaining amount.

The state controller shall issue annual payments from the compensation for exonerated persons fund, which fund is created in the bill.

After the state controller issues an initial annual payment to an exonerated person, the exonerated person must complete a personal financial management instruction course before the state controller may issue to the person another annual payment.

A district court that issues an order of compensation to the state controller on behalf of a person, or on behalf of the immediate family members of a person, shall order that all records relating to the person’s wrongful conviction or adjudication shall be expunged as if such events had never taken place and such records had never existed. The district court shall direct such an expungement order to every person or agency that may have custody of any part of any records relating to the person’s wrongful conviction or adjudication.

If a district court issues an expungement order, a court, law enforcement agency, or other state agency that maintains records relating to the person’s wrongful conviction or adjudication shall physically seal such records and thereafter treat the records as confidential. Records that have been sealed shall be made available to a court or a law enforcement agency, including but not limited to a district attorney’s office or the attorney general, upon a showing of good cause.

On or before Sept. 1, 2013, the Colorado commission on higher education shall implement a policy whereby each institution of higher education in the state shall waive tuition costs for an exonerated person, and for any child or custodial child of an exonerated person who was conceived or legally adopted before the exonerated person was incarcerated, who satisfies the admission requirements of the institution and who remains in satisfactory academic standing in accordance with the academic policies of the institution. To receive a tuition waiver, an exonerated person or child or custodial child of an exonerated person must apply to the institution and request such waiver in writing not later than two years after the later of the following dates:

  • The date upon which a district court issued an order of compensation on behalf of the exonerated person; or
  • In the case of a child or custodial child of an exonerated person, the date upon which the child or custodial child graduated from high school.

Neither an exonerated person nor a child or custodial child of an exonerated person shall be eligible for a tuition waiver unless the exonerated person was wrongfully incarcerated for at least three years. On March 7, the Judiciary Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact to the state.

Since this summary, the bill was amended in Appropriations and referred to the Senate Committee of the whole. It was laid over for Second Reading on April 2.