December 12, 2017

Archives for March 4, 2012

Tenth Circuit: Unpublished Opinions, 3/2/12

On Friday, March 2, 2012, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Unpublished

Frischenmeyer v. Werholtz

United States v. Mitchell

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 12-1156: Clarifying Which Entities Are Entitled to Institute Foreclosures

On January 20, 2012, Rep. Beth McCann and Sen. Mike Johnston introduced HB 12-1156 – Concerning Measures to Improve the Reliability of Information Provided in Connection with Real Estate Foreclosures. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill tightens the rules for documentation of the holder’s interest that must be filed with the public trustee before a foreclosure sale is authorized. Current law allows a “holder of an evidence of debt” (holder), generally, a bank or other financial institution, to foreclose on real property under a deed of trust even if the holder’s interest is based on an assignment from the original lender and the assignment or other intermediate documents are not produced, simply by providing a statement from the holder’s attorney that the holder’s interest in the property is valid.

The bill amends provisions governing the court order authorizing sale by a public trustee (“Rule 120 order” referring to C.R.C.P. 120) to place the burden of proof on the holder in all cases to demonstrate that the holder does in fact have a valid assignment or other basis for its assertion that it is entitled to foreclose on the property. The bill also explicitly states that the Rule 120 order is not a final judgment adjudicating all claims of rights and interests in the property, as a judgment under rule 105 (a “quiet title judgment”) would be.

The bill suspends any eviction proceeding if the Rule 120 order has been challenged, until the challenge is resolved. The bill is assigned to the Economic and Business Development Committee; it is not listed on the printed calendar for the committee.

Summaries of other featured bills can be found here.

HB 12-1172: Allowing Public Utilities Commission to Impute Federal Carbon Tax to Electric Utility

On January 20, 2012, Rep. Spencer Swalm introduced HB 12-1172 – Concerning the Rates Charged to Consumers for Electricity, and, in Connection Therewith, Prohibiting the Imputation of Certain Costs Associated with Reductions in Greenhouse Gas Emissions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The 2004 voter initiative known as “Amendment 37” committed Colorado to a policy of increasing the portion of the state’s electricity generated from renewable sources. Subsequent legislation allows the Colorado public utilities commission (PUC) to impute the cost of a carbon tax imposed at the federal level when calculating an electric utility’s investments and comparing the cost of maintaining existing infrastructure with the cost of replacing existing power plants with more energy-efficient power plants.

The bill conditions the PUC’s imputation of the carbon tax on the actual adoption of a carbon tax as part of federal law. The bill prohibits an investor-owned electric utility from charging residential customers tiered rates according to their monthly consumption. On February 15, the Agriculture, Livestock, & Natural Resources committee amended the bill and referred it to the full House for consideration on 2nd Reading.

Since this summary, the bill passed the Second Reading with amendments and passed the Third Reading in the House.

Summaries of other featured bills can be found here.

SB 12-107: Enacting the “Water Rights Protection Act”

On January 31, 2012, Sen. Morgan Carroll and Rep. Roger Wilson introduced SB 12-107 – Concerning Additional Protections for Water Related to Hydraulic Fracturing. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enacts the “Water Rights Protection Act”, under which the Colorado oil and gas conservation commission must establish rules for:

  • Hydraulic fracturing near radioactive materials and sites listed on the national priority list pursuant to the federal “superfund” law; and
  • The shut-down of hydraulic fracturing operations when monitoring equipment detects a pressure drop.

Oil and gas operators must submit water quantity reports showing projected and actual sources and amounts of water needed for hydraulically fracturing a well. Operators must also submit pre- and post-fracturing water quality reports for all active water wells located within .5 mile of oil and gas wells that will be or have been hydraulically fractured. This information will be posted on the commission’s web site. Operators cannot inject into the ground any chemical compound that would cause cancer.

In addition to existing financial assurances, each operator that engages in a high-risk hydraulic fracturing treatment must take out an environmental bond that would be forfeited if the operator’s operations cause any damage to water rights.

Subject to listed affirmative defenses, an operator is presumed to be responsible for the pollution of a water supply that is within .5 mile of a line between the well head and the surface projection of the bottom hole location of the well, if the pollution occurred within 6 months after the completion of the hydraulic fracturing of the well. Hydraulic fracturing would be prohibited within .5 mile of any surface water, including a pond, reservoir, or other natural or artificial impoundment or stream, ditch, or other artificial waterway, unless the operator uses a closed-loop system. The bill is assigned to the Judiciary Committee; the bill is not listed on the printed calendar.

Summaries of other featured bills can be found here.

SB 12-110: Fees for Insurers; Insurance Fraud Cash Fund Moved to Department of Law

On January 31, 2012, Sen. Pat Steadman and Rep. Claire Levy introduced SB 12-110 – Concerning a Fund Consisting of Surcharges on Insurance Premiums to Pay for Costs Associated with Criminal Prosecutions of Insurance Fraud Investigations, and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Bill

The commissioner of insurance is required to establish a tiered fee schedule based upon the prior year’s direct written premiums, gross contract funds, or charges received in Colorado by each regulated insurance entity. The fees are transmitted to the insurance fraud cash fund to pay for insurance fraud investigations and prosecutions by the attorney general’s office. Currently the fee is set at $561 for each entity. The tiered fee schedule is set to approximate the direct and indirect costs of the investigations and prosecutions of insurance fraud. The bill allows the Department of Law to give the same attention to all workers’ compensation companies, including Pinnacol Assurance. The insurance fraud cash fund is moved from the Division of Insurance in the Department of Regulatory Agencies to the Department of Law.

The bill appropriates moneys to the Department of Law. On February 14, the bill cleared the Senate; on February 15 the bill was assigned to the Judiciary and Appropriations Committees.

Summaries of other featured bills can be found here.

SB 12-112: Modifications to Definition of Full-Time Employee for the State

On January 31, 2012, Sen. Mary Hodge and Rep. Claire Levy introduced SB 12-112 – Concerning the Headnote Definition of Full-Time Equivalent Employees Used in the Annual General Appropriation Act. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Bill

For purposes of the headnote definition used in the annual general appropriation act, the bill defines full-time equivalent employee (FTE) generally to mean the budgetary equivalent of a permanent position that is filled for at least 2,080 hours per year. The bill allows the hours per year to be adjusted to account for the actual number of work hours in a given fiscal year. The bill has cleared the Senate and has been assigned to the Appropriations Committee in the House.

Summaries of other featured bills can be found here.

SB 12-116: Moving Cathinones Off Drug Schedules And Classifying As Controlled Substance

On January 31, 2012, Sen. Joyce Foster and Rep. J. Paul Brown introduced SB 12-116 – Concerning Penalties Associated with Cathinones, and, in Connection Therewith, Establishing a Misdemeanor Penalty for Possession of a Cathinone. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill defines cathinones and establishes criminal penalties for possession of cathinones and for distributing, manufacturing, dispensing, or selling cathinones. Any person or entity that sells a product that is labeled as a “bath salt” or any other trademark and contains any amount of a cathinone commits a deceptive trade practice and is subject to a civil penalty. On February 21, the Local Government Committee amended the bill and referred it to the Appropriations Committee; the bill is not listed on the Appropriations Committee calendar.

Summaries of other featured bills can be found here.

SB 12-117: Establishing Parameters for Drug and Marijuana-Related DUI/DWAI

On January 31, 2012, Sen. Steve King introduced SB 12-117 – Concerning the Penalties for Persons Who Drive While Under the Influence of Alcohol or Drugs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In any prosecution for a driving under the influence (DUI), driving while ability impaired (DWAI), vehicular assault, or vehicular homicide, if at the time of the commission of the alleged offense, or within two hours thereafter, the defendant’s blood, urine, or saliva contains any amount of a schedule I controlled substance, except for tetrahydrocannabinols; a schedule II controlled substance; salvia divinorum; or synthetic cannabinoids, or the defendant’s blood contains 5 nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, such fact gives rise to the permissible inference that the defendant was under the influence of drugs.

The bill expands the existing definition of “DUI per se” to include driving when the driver’s blood, urine, or saliva contains any amount of a schedule I controlled substance, except for tetrahydrocannabinols; salvia divinorum; or synthetic cannabinoids, and driving when the defendant’s blood contains 5 nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood.

The bill removes statutory instances of the term “habitual user”. The bill is assigned to the State, Veterans, & Military Affairs Committee and is scheduled for committee review on Monday, February 27 at 1:30 p.m.

Since this summary, the bill was amended by the State, Veterans, & Military Affairs Committee and referred to the Appropriations Committee.

Summaries of other featured bills can be found here.