November 23, 2017

Archives for January 28, 2013

e-Legislative Report: January 28, 2013

CBA Director of Legislative Relations Michael Valdez discusses Martin Luther King Jr. Day, honoring veterans, and the status of the civil unions bill in this week’s video legislative update.

Senate Judiciary Gives SB 11—Civil Unions Initial Okay

On Wednesday, Jan. 23, after several hours of testimony, the Senate Judiciary Committee approved SB 11 and moved the bill to the Appropriations Committee for consideration of the fiscal implications of the bill. The CBA went on record for the second year to support the legislation. Several substantive sections of the Bar Association have supported the passage of this legislation and are continually reviewing the bill for possible technical corrections amendments. Technical amendments were adopted by the Senate Judiciary Committee to comply with the “Rule of 7” days statutory time calculations.

The House of Representatives Gave Final House Approval of Two Technical “Legal” Bills on Wednesday, Jan. 23:

  1. HB 13–1077. Concerning the enactment of Colorado Revised Statutes 2012 as the positive and statutory law of the state of Colorado was approved on a vote of 63 yes, 0 no and 2 excused; and
  2. HB 13–1029. Concerning the use of authority verbs in the Colorado Revised Statutes was approved on a vote of 63 yes, 0 no and 2 excused.

Friday, Jan. 25—Military Day at the Capitol

The House and Senate paid tribute to veterans during the annual Military Day series of Resolutions:

  • HJR13–1006. Concerning recognition of Military, Veterans, and MIA/POW Appreciation Day.
  • HJR13–1008. Concerning the U.S.S. Pueblo.
  • HJR13–1009. Concerning the designation of the Leopard Creek bridge in Placerville as the “Pfc. Paul L. Haining Memorial Bridge.”
  • HJR13–1012. Concerning the designation of National Guard and Reserve retirees as veterans.
  • HJR13–1010. Concerning recognizing the 60th anniversary of the armistice marking the end of the Korean War.
  • HJR13-1011.Concerning recognition of military personnel from Colorado who have served in Operation New Dawn and Operation Enduring Freedom and in the Global War on Terrorism, and honoring those who have died while serving their country in Iraq, Afghanistan, and elsewhere around the world.

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

At the meeting on Friday, Jan. 25, the LPC voted to take action on several bills at its weekly meeting:

  1. The Committee voted to support HB 13–1016. Concerning the distribution to beneficiaries of amounts in pay-on-death (POD) financial institution accounts pursuant to written designation in the records of the financial institution;
  2. The Committee voted to oppose HB 13–1032. Concerning offenses against an unborn child and HB 13–1033. Concerning a prohibition on abortion.

Stay tuned to CBA-CLE Legal Connection for summaries of ten bills of interest.

Governor Hickenlooper Announces Appointment to Sixteenth Judicial District Nominating Commission

On Monday, January 28, 2013, Governor John Hickenlooper announced an appointment to the Sixteenth Judicial District Nominating Commission. Nathan Shultz of La Junta was appointed to serve as an attorney and a Republican from Otero County. His appointment is effective until December 31, 2018. Mr. Shultz will replace Philip Palmer of La Junta, who resigned.

Each of Colorado’s 22 judicial districts has a nominating commission comprised of seven members who reside in the district. No more than four members can be from the same political party, and each county in the district must have at least one resident representative. In districts in which the population is over 35,000, three of the members of the nominating commission must be attorneys admitted to practice law in Colorado, and the other four may not be admitted to practice law.

 

Tenth Circuit: District Court’s Dismissal of Claims Without Prejudice and Restitution Amount After Real Estate Investor’s Conviction of Fraud Affirmed

The Tenth Circuit published its opinion in United States v. Smith on Thursday, January 24, 2013.

Defendant Derrick Smith was a real estate investor who conspired to defraud mortgage lenders by setting up sales to straw buyers at inflated prices, with the excess loan proceeds being distributed to Defendant and others. When the buyers defaulted on the loans, the lenders were unable to recoup the full loan amounts at foreclosure.

Defendant was indicted and eventually convicted by a jury on one count of conspiracy to commit wire fraud in relation to real estate mortgages. The district court declared a mistrial as to four counts on which the jury could not reach a verdict, later dismissing these counts without prejudice. At sentencing, the district court calculated an advisory sentencing range of 37 to 46 months’ imprisonment. The court then sentenced Defendant to 40 months’ imprisonment and ordered restitution in the amount of $369,455.54.

Defendant raises three issues on appeal. First, he claims the district court abused its discretion by dismissing the mistried counts without prejudice. Second, he contends the court erred in treating the sale of 7300 N.E. 133rd Street as relevant conduct in its sentencing calculation. Third, he argues the court erred in calculating actual loss based on the difference between the outstanding principal balance and the foreclosure sale price.

The Tenth Circuit first considered the district court’s dismissal of the mistried counts. After considering the following factors, the Tenth Circuit concluded that the district court did not abuse its discretion in dismissing the four mistried counts without prejudice: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.”  18 U.S.C. § 3162(a)(1).

The Tenth Circuit turned next to Defendant’s challenges to the district court’s sentencing calculation, starting with his argument that the district court erred in determining the sale of 7300 N.E. 133rd Street should be included as relevant conduct for sentencing purposes. The Court held that the district did not err in considering Defendant’s conduct regarding this residece, as it constituted relevant conduct or a common scheme or plan.

Finally, the Tenth Circuit turned to Defendant’s argument that the district court erred in calculating actual loss, reviewing the court’s loss calculation methodology de novo and its factual findings for clear error. The Court held the district court did not err in applying the general formula and subtracting the foreclosure sales price from the outstanding balance on the loan,  since this actual loss was the reasonably foreseeable pecuniary harm that resulted from the offense.

AFFIRMED.

Tenth Circuit: Unpublished Opinions, 1/25/13

On Friday, January 25, 2013, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Sebreros-Castro

United States v. Hall

Bituminous Casualty Corporation v. Pollard

Morrow v. Jones

Colvin v. Medina

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

SB 13-012: Adding Certain Personnel of Youth Sports Organizations to List of Mandatory Reporters of Suspected Child Abuse and Neglect

On Wednesday, January 9, 2013, Sen. Rollie Heath introduced SB 13-012 – Concerning Reporting of Suspected Child Abuse and Neglect by Youth Sports Organizations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill adds directors, coaches, assistant coaches, and athletic program personnel for private sports programs or organizations to the list of persons required to report suspected child abuse or neglect to the county or district department of social services or local law enforcement agency. Assigned to the Judiciary Committee.

SB 13-019: Promoting Water Conservation Measures

On Wednesday, January 9, 2013, Sen. Gail Schwartz introduced SB 13-019 – Concerning the Promotion of Water Conservation Measures. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill declares that increasing water use efficiency by appropriators promotes the maximum utilization of Colorado’s water resources and is in the public interest.

The amount of water that currently can be changed to a new type or place of use is limited by the amount of water that was historically consumed by the original type and place of use. Therefore, a water user has no incentive to reduce the amount of water diverted. Current law encourages the conservation of water in some contexts by eliminating from the determination of abandonment the period during which water is conserved under a variety of government-sponsored programs. However, in these contexts, the water conserved through a reduction in the application of the water to a beneficial use results in a reduction of consumptive use. The bill directs the water judge to disregard the decrease in use of water from such programs in its determinations of historical consumptive use in change of water right cases and adds to the list a decrease in water use to provide for compact compliance. The bill defines “conserved water” and directs water judges to allow a change of water right for conserved water. Assigned to the Agriculture, Natural Resources, & Energy Committee.

SB 13-021: Reaffirming Grant of Power of Eminent Domain to Pipeline Companies Conveying Petroleum Products

On Wednesday, January 9, 2013, Sen. Mary Hodge introduced SB 13-021 – Concerning Technical Revisions to Article 5 of Title 38, Colorado Revised Statutes, that Reaffirm that the Provisions of that Article Relating to Rights-of-Way for Transmission Companies Apply to Pipeline Companies Operating Pipelines that Convey Petroleum and Hydrocarbon Products. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Article 5 of title 38, C.R.S., governs rights-of-way for transmission companies and grants the right of eminent domain to any domestic or foreign electric light power, gas, or pipeline company authorized to do business in Colorado for the purpose of obtaining rights-of-way for wires, pipes, regulator stations, substations, and systems needed to conduct its business. Until May 2012, it was commonly understood that article 5 applied to and granted the right of eminent domain to all pipeline companies authorized to do business in Colorado, including companies operating pipelines that convey oil, gasoline, or other petroleum products.

In May 2012, the Colorado Supreme Court held that article 5 grants the right of eminent domain only for acquisition of rights-of-way for pipelines involved in delivering electric power or natural gas and not for pipelines that convey oil, gasoline, or other petroleum products. The bill reaffirms that article 5 grants the power of eminent domain to pipeline companies operating pipelines that convey petroleum products by defining the term “pipeline company” to include such companies and by making additional clarifying technical revisions. Assigned to the Local Government Committee.

Colorado Court of Appeals: Announcement Sheet, 1/24/13

The Colorado Court of Appeals issued no published opinions and 36 unpublished opinions on Thursday, January 24, 2013.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.