January 20, 2018

Archives for April 2014

SB 14-209: Amending the Requirements for Permissible Investments by Insurers in Loans Secured by Interests in Real Estate

On April 22, 2014, Sen. Rollie Heath introduced SB 14-209 – Concerning the Requirements for Permissible Investments by Insurers in Loans Secured by Interests in Real Estate. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law limits the investments insurers may make in mortgage loans and similar instruments to those secured by property located in the United States and having a loan-to-value ratio of 80% in most cases. The national association of insurance commissioners (NAIC) recommends limitations that differ in certain respects from these requirements. The bill adopts the NAIC’s recommendations by:

  • Authorizing investment in loans secured by property in either the United States or Canada;
  • Increasing the allowable loan-to-value ratio to 90% for purchase-money mortgages if the insurer holds the note, 80% for commercial property if the payment schedule meets specified requirements, up to 97% for mortgages on residential property if mortgage insurance applies, and 75% in all other cases; and
  • Repealing portions of current law that conflict with these provisions.

The bill is assigned to the Business, Labor, & Technology Committee.

Since this summary, the Business, Labor, & Technology Committee referred the bill, unamended, to the Senate Committee of the Whole.

SB 14-203: Creating the Office of the Respondent Parents’ Counsel to Provide Representation in Dependency and Neglect Proceedings

On April 16, 2014, Sen. Kent Lambert introduced SB 14-203 – Concerning the Office of the Respondent Parents’ Counsel in Cases of Alleged Child Abuse or Neglect. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes the office of the respondent parents’ counsel in the state judicial department, effective July 1, 2015, to provide high-quality legal representation to parents involved in dependency and neglect proceedings and who lack the financial means to obtain legal representation.

On April 23 the Judiciary Committee amended the bill and sent it to the Appropriations Committee. On April 25, the Appropriations Committee approved the bill and sent it to the full Senate for consideration on 2nd Reading.

SB 14-201: Reestablishing an Advisory Work Group Related to the Office of the Child Protection Ombudsman

On April 16, 2014, Sen. Linda Newell introduced SB 14-201 – Concerning Reestablishing a Child Protection Ombudsman Advisory Work Group to Develop a Plan for Accountable Autonomy for the Child Protection Ombudsman Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a new advisory work group related to the office of the child protection ombudsman (office). The duties of the advisory work group include reconciling the implementation of recommendations from the 2010 advisory work group with the current operations and function of the office and making additional recommendations for autonomy and accountability as appropriate. Appointments to the advisory work group must be made no later than 60 days after May 14, 2014, and the advisory work group must convene on or before August 1, 2014. The advisory work group shall provide a report to the health and human services committee of the senate and the public health care and human services committee of the house of representatives, or any successor committees, the governor, and the executive director on or before December 1, 2014.

The advisory work group is repealed, effective July 1, 2016.

On April 24, the Health & Human Services Committee amended the bill and sent it to Legislative Council; on April 25, Legislative Council Committee amended the bill and sent it to the full Senate for consideration on 2nd Reading.

HB 14-1347: Modifying Various Statutes to Comply with “Rule of Seven”

On March 28, 2014, Rep. Lois Court and Sen. Linda Newell introduced HB 14-1347 – Concerning Statutorily Established Time Periods that are Multiples of Seven Days. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill changes time periods in certain court proceedings to 7-day periods or periods that are multiples of 7 days to avoid actions being due on weekends. Similar changes to 7-day periods or periods that are multiples of 7 days were made to the Colorado Revised Statutes in 2012, pursuant to Senate Bill 12-175. The CBA LPC has voted to support this legislation.

On April 25, the bill passed 3rd Reading in the Senate and is now on its way to Gov. John Hickenlooper’s desk for signature.

 

HB 14-1349: Broadening Criteria for Businesses to Obtain Property Tax Exemptions

On March 31, 2014, Rep. Dickey Lee Hullinghorst and Sen. Rollie Heath introduced HB 14-1439 – Concerning the Creation of an Exemption from Property Taxes for Qualifying Business Entities Controlled by Nonprofit Organizations that are Formed for the Purpose of Qualifying for Federal Tax CreditsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

For property tax years beginning on or after January 1, 2014, the bill exempts real and personal property from the levy and collection of property tax if:

  • The property tax is owed by a qualified business entity; and
  • The property is used for charitable, religious, or educational purposes in accordance with existing property tax exemptions.

The bill also defines “qualified business entity” to mean a limited partnership or a limited liability company:

  • That is formed for the purpose of obtaining federal tax credits and that does obtain such credits; and
  • The general partner or managing member of which is an entity that would qualify for an existing property tax exemption for charitable, religious, or educational purposes.

The bill repeal statutory provisions that had required an entity formed to obtain the federal new markets tax credits or federal rehabilitation tax credits and that claims a property tax exemption to pay annually to the applicable county a payment in lieu of property taxes.

On April 14, the bill passed out of the House on 3rd Reading. The bill is assigned to the Finance Committee in the Senate.

Since this summary, the Senate Finance Committee referred the bill, unamended, to the Senate Committee of the Whole for Second Reading.

HB 14-1353: Creating the Uniform Powers of Appointment Act, as Recommended by NCCUSL

On April 1, 2014, Rep. Bob Gardner and Sen. Mike Johnston introduced HB 14-1353 – Concerning Powers of Appointment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enacts the “Uniform Powers of Appointment Act” as recommended by the national conference of commissioners on uniform state laws. It repeals existing law on powers of appointment and makes conforming amendments. The CBA LPC has voted to support this legislation.

On April 21, the bill passed out of the House on 3rd Reading. The bill is assigned to the Judiciary Committee in the Senate.

Since this summary, the Senate Judiciary Committee referred the bill, unamended, for Second Reading. It passed Second Reading unamended in the Senate.

Colorado Supreme Court: Statements Made by Highly Intoxicated Defendant Need Not Be Suppressed

The Colorado Supreme Court issued its opinion in People v. Knedler on Monday, April 28, 2014.

Miranda Advisement—Knowing and Intelligent Waiver.

In this interlocutory appeal, the Supreme Court reversed the trial court’s order suppressing defendant’s statements. The trial court erred by suppressing defendant’s statements based solely on his level of intoxication, because chemical analysis of blood or breath alcohol content alone is not sufficient for a court to conclude that a defendant’s waiver was not knowing and intelligent. The trial court should have considered the totality of the circumstances. The Court reversed the trial court’s order, holding that defendant made a knowing and intelligent waiver of his Fifth Amendment Miranda rights before making the statements.

Summary and full case available here.

Colorado Court of Appeals: Defendant Entitled to One Extra Day of Presentence Confinement Credit

The Colorado Court of Appeals issued its opinion in People v. Houston on Thursday, April 24, 2014.

Presentence Confinement Calculation.

The question in this case was whether the trial court erred in granting defendant 130 days of presentence confinement credit (PSCC) rather than the 724 days sought by defendant. CRS § 18-1.3-405 provides that “[a] person who is confined for an offense prior to the imposition of a sentence for said offense is entitled to credit against the term of his or her sentences for the entire period of such confinement.” There must be a “substantial nexus” between the offense and the period of confinement for which PSCC is sought.

On December 22, 2009, defendant was served an arrest warrant in Larimer County, and on November 5, 2010, he was sentenced to probation and released (first period). Defendant argued that he was entitled to 319 days of PSCC for this period, but the People argued he was entitled to only eighty-four days, reflecting the amount of time he was in custody in Jefferson County for a separate offense. The Court of Appeals agreed with the People. During the first period, defendant was in custody in Jefferson County for eighty-four days, and he was entitled to PSCC for that time. However, defendant was not entitled to PSCC for the remaining time he was confined in Larimer County, because the conduct for which he was confined was unrelated to this case and he was confined in a different jurisdiction.

The second period was from December 19, 2010, when defendant was arrested based on a revocation complaint filed in this case, to February 3, 2011, when the district court declined to revoke his probation and released him to probation. The only dispute was whether the amount of PSCC was properly calculated as forty-seven days or forty-six days. The district court granted forty-six days.

The Court was not certain, but believed the dispute was whether the PSCC should have included both the date of defendant’s arrest and the date of his release to probation. The Court concluded that defendant was entitled to credit for both dates, and therefore the trial court erred by one day in its PSCC calculation for the second period.

The third period was from December 28, 2011, when defendant was arrested in Denver County, to December 20, 2012, when he was sentenced to prison in this case. Defendant argued he was entitled to 358 days of PSCC for this entire period, and the People argued he was not entitled to any.

On March 24, 2011, another revocation complaint was filed in this case (second revocation complaint) and a warrant was issued for defendant’s arrest. In April 2011, a revocation complaint was also filed in the Larimer County case. Defendant was arrested in Denver County, and the record suggests he was arrested on the warrant in this case. During the third period, he was transferred to Jefferson County a number of times on writs from either Denver County or Larimer County. On July 3, 2012, an addendum to the second revocation complaint was filed, which added as a basis for revocation the charge filed against him in Denver County (the amended second revocation complaint). A new arrest warrant was issued on July 5, 2012. The district court ultimately revoked probation in this case and sentenced defendant to four years in prison.

During the third period, the amount of time defendant was in Denver, Larimer, or Jefferson Counties was unclear, and therefore there was no basis for the Court to allocate the PSCC due based on time in each jurisdiction. The Court held that the time defendant was confined in Denver County was based on defendant’s alleged failure to register as a sex offender in Denver County and not the second revocation complaint in this case. The Court found that the time defendant was confined in Larimer County was based on the revocation complaint filed in the Larimer County case. The Court declined to consider the time defendant was confined in Jefferson County, because defendant did not present any argument in the district court or on appeal that he was entitled to PSCC on the basis of his confinement in Jefferson County during the third period.

The order was affirmed in part and reversed in part. The case was remanded for the district court to award defendant one additional day of PSCC.

Summary and full case available here.

Colorado Court of Appeals: Involuntary Medication Administration in Non-Emergency Situation Requires Clear and Convincing Evidence that Deterioration Likely

The Colorado Court of Appeals issued its opinion in People in Interest of Marquardt on Thursday, April 24, 2014.

Involuntary Administration of Antipsychotic.

Larry Marquardt was committed to the Colorado Mental Health Institute at Pueblo (CMHIP) after having been found not guilty by reason of insanity in a criminal case. Since arriving at CMHIP, he was voluntarily taking ten milligrams of Saphris, an antipsychotic medication, once a day. The People petitioned the court to slowly increase the dosage to 20 milligrams per day, because he refused to voluntarily do so and his psychiatrist felt 10 milligrams was ineffective.

After a hearing, the court ordered the dosage could be increased over his objection. On appeal, Marquardt argued that the trial court erred in applying the elements established in People v. Medina, 705 P.2d 961 (Colo. 1985),to the facts of this case.

As a matter of first impression, the Court of Appeals had to decide whether Medina was applicable to a nonemergency request to increase antipsychotic medication dosage over a patient’s objection. It concluded it was applicable; however, the trial court applied an incorrect legal standard in its decision.

The trial court was required, pursuant to Medina, to find by clear and convincing evidence a number of factors, one of which was whether, absent the increased dosage, Marquardt would suffer significant and likely long-term deterioration to his mental health. Although the evidence supported the trial court’s finding that Marquardt was unlikely to improve at the current dosage, that was not the correct standard and there was not clear and convincing evidence that, absent the increased dosage, he would suffer a significant and likely long-term deterioration to his mental health. The order was reversed.

Summary and full case available here.

Colorado Court of Appeals: Taxes Paid to Wrong Municipality Cannot be Recovered and Are Still Owed to Correct Municipality

The Colorado Court of Appeals issued its opinion in Qwest Corporation v. City of Northglenn on Thursday, April 24, 2014.

Use Taxes—Statute of Limitations—CRS § 39-26-210.

Qwest Corporation has a facility in Thornton, a home-rule municipality. Under Thornton’s tax code, Qwest must pay use taxes on new purchases delivered to the Thornton facility. Northglenn, an adjacent home rule municipality, has a similar tax ordinance.

Qwest’s Thornton facility is across the street from Northglenn. Between 2002 and 2005, an error in Qwest’s computer software recognized the Thornton facility as being in Northglenn. As a result, Qwest mistakenly paid to Northglenn use taxes it owed to Thornton during that time.

In 2008, Thornton conducted an audit of Qwest and discovered the error. After Thornton notified Qwest of the deficiency, Thornton and Qwest entered into numerous agreements extending the three-year limitations period under CRS § 39-26-210 for collecting tax assessments and requesting refunds applicable to Qwest’s tax liability to Thornton. Thornton ultimately issued Qwest a sales and use tax assessment totaling $65,862.19 for the subject period.

In 2010, pursuant to CRS § 29-2-106.1(3), Qwest requested a hearing concerning the deficiency by the Colorado Department of Revenue (Department) and joined Northglenn as a respondent. This was the first time that Qwest notified Northglenn that it had received tax payments in error. The Department concluded that any action against Northglenn for taxes for the 2002 through 2005 period was time barred, and Qwest remained liable to Thornton.

Qwest appealed to the district court and moved for summary judgment. The district court affirmed the Department.

On appeal, Qwest argued that under CRS § 29-2-106.1(5) and (6), it is immune from liability for use taxes owed to Thornton for 2002 to 2005 because it erroneously paid those taxes to Northglenn. It further argued that the statute of limitations did not relieve Northglenn of any obligation to forward the erroneously paid taxes to Thornton. The Court of Appeals disagreed.

Colorado’s general use tax statute limits the time to collect taxes to three years after the date the tax is due. The parties agreed that if the limitations period applies, it has expired. The Court concluded that it clearly applies because it covers “any action to collect use taxes.”

Qwest also argued that it should be relieved of its tax liability to Thornton because it paid the amounts due to Northglenn. The Court rejected this argument because Thornton cannot recover the money from Northglenn due to the statute of limitations. The Court therefore affirmed the district court’s decision that Qwest remains liable to Thornton for the use tax deficiency.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 4/29/2014

On Tuesday, April 29, 2014, the Tenth Circuit Court of Appeals issued one published opinion and 13 unpublished opinions.

Maynard v. Fallin

United States v. Platero

Stirling v. Stirling

United States v. Gonzalez-Ramirez

Hanson v. Colorado Judicial Department

United States v. Wardell

Llanos v. Holder

Baccus v. Baccus

Shockley v. Colvin

Robertson v. Colvin

Taber v. Farris

Oliver v. Raemisch

Wardell v. Executive Director

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

HB 14-1355: Directing the Department of Corrections to Develop Programs to Decrease Recidivism

On April 3, 2014, Rep. Daniel Kagan and Sen. Lucia Guzman introduced HB 14-1355 – Concerning Department of Corrections Reentry Initiatives for Successful Reintegration of Adult Offenders into the Community, and, in Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

On and after July 1, 2014, the Dept. of Corrections (department) shall develop and implement initiatives specifically designed to decrease recidivism, enhance public safety, and increase each offender’s chances of achieving success upon his or her release to the community.

Subject to appropriations, on and after July 1, 2014, the department shall:

  • Develop and implement initiatives specifically designed to assist offenders in a correctional facility to prepare for release to the community;
  • Develop and implement initiatives specifically designed to assist each offender’s transition from a correctional facility into the community; and
  • Make necessary operational enhancements and develop and implement initiatives specifically designed to ensure that the department has the proper equipment, training, and programs to properly supervise offenders in the community to enhance public safety.

On and after January 1, 2015, the department shall develop and implement a grant program to provide funding to eligible community-based organizations that provide reentry services to offenders in the community. On or before January 1, 2015, the executive director shall develop policies for the administration of the grant program.

The grant program is repealed, effective September 1, 2018. Before such repeal, the department of regulatory agencies shall conduct a sunset review of the grant program.

On and after January 1, 2016, during its annual presentation before the joint judiciary committee of the general assembly, or any successor joint committee, the department shall include a status report regarding the progress and outcomes of reentry planning and program initiatives developed and implemented by the department during the preceding year.

The bill makes an appropriation.

On April 21, the bill passed out of the House on 3rd Reading. The bill is assigned to the Judiciary Committee in the Senate.

Since this summary, the Senate Judiciary Committee referred the bill, unamended, to Appropriations.