June 24, 2017

Archives for January 2017

SB 17-040: Modifying Procedures for Public Access to Government Files

On January 11, 2017, Sen. John Kefalas and Rep. Dan Pabon introduced SB 17-040, “Concerning Public Access to Files Maintained by Governmental Bodies.”

Section 2 of the bill modifies the ‘Colorado Open Records Act’ (CORA) by creating new procedures governing the inspection of public records that are stored as structured data.

Section 1 defines key terms including ‘structured data’, which the bill defines as digital data that is stored in a fixed field within a record or file that is capable of being automatically read, processed, or manipulated by a computer.

If public records are stored as structured data, section 2 requires the custodian of the public records to provide an accurate copy of the public records in a structured data format when requested. If public records are not stored as structured data but are stored in an electronic or digital form and are searchable in their native format, the custodian is required to provide a copy of the public records in a format that is searchable when requested.

Section 2 specifies the circumstances that exempt the custodian from having to produce records in a searchable or structured data format.

If a custodian is not able to comply with a request to produce public records in a requested format, the custodian is required to produce the records in an alternate format and to provide a written declaration attesting to the reasons the custodian is not able to produce the records in the requested format. If a court subsequently rules the custodian should have provided the data in the requested format but that the custodian reasonably believed, based upon the reasons stated in the written declaration, that the data could not be produced in the requested format, attorney fees may be awarded only if the custodian’s action was arbitrary or capricious.

Nothing in the bill requires a custodian to produce records in their native format.

Section 3 expands the grounds permitting the filing of a civil action seeking inspection of a public record to include an allegation of a violation of the digital format provisions in the bill or a violation of record transmission provisions specified in CORA. This section also specifies that altering an existing record, or excising fields of information, to remove information that the custodian is required or allowed to withhold does not constitute the creation of a new public record. Such alteration or excision may be subject to a research and retrieval fee or a fee for the programming of data as allowed under existing provisions of CORA.

Section 4 modifies CORA provisions governing the copy, printout, or photograph of a public record and the imposition of a research and retrieval fee. Among these modifications:

  • The bill deletes existing statutory language permitting the custodian to charge the same fee for services rendered in supervising the copying, printing out, or photographing of a public record as the custodian may charge for furnishing a copy, printout, or photograph;
  • The bill replaces a reference in the statute to the phrase ‘manipulation of data’ with the phrase ‘programming, coding, or custom search queries so as to convert a record into a structured data or searchable format’;
  • In connection with determining the amount of the fee for a paper or electronic copy of a public record, the bill specifies that, if a custodian performs programming, coding, or custom search queries to create a public record, the fee for a paper or electronic copy of that record may be based on recovery of the actual or incremental costs of performing the programming, coding, or custom search queries, together with a reasonable portion of the costs associated with building and maintaining the information systems; and
  • When a person makes a request to inspect or make copies or images of original public records, the bill permits the custodian to charge a fee for the time required for the custodian to supervise the handling of the records, when such supervision is necessary to protect the integrity or security of the original records.

Section 5 repeals the existing criminal misdemeanor offense and penalty for a willful and knowing violation of CORA.

The bill was introduced in the Senate and assigned to the State, Veterna

SB 17-036: Limiting Evidence Presented in District Court on Appeal from Agency Groundwater Decisions

On January 11, 2017, Sen. Ray Scott and Reps. Jon Becker & Jeni Arndt introduced SB 17-036, “Concerning the Appellate Process Governing a District Court’s Review of Final Agency Actions Concerning Groundwater.”

Under current law, the decisions or actions of the ground water commission (commission) or the state engineer regarding groundwater are appealed to a district court, and the evidence that the district court may consider is not limited to the evidence that was presented to the commission or state engineer. Therefore, unlike appeals from other state agencies’ decisions or actions under the ‘State Administrative Procedure Act’, a party appealing a decision or action of the commission or state engineer may present new evidence on appeal that was never considered by the commission or state engineer.

The bill limits the evidence that a district court may consider, when reviewing a decision or action of the commission or state engineer on appeal, to the evidence presented to the commission or state engineer.

The bill was introduced in the Senate and assigned to the Agriculture, Natural Resources, & Energy Committee.

SB 17-055: Prohibiting Employers from Mandating Labor Organization Membership

On January 13, 2017, Sen. Tim Neville and Rep. Justin Everett introduced SB 17-055, “Concerning the Prohibition of Discrimination Against Employees Based on Labor Union Participation.”

The bill prohibits an employer from requiring any person, as a condition of employment, to become or remain a member of a labor organization or to pay dues, fees, or other assessments to a labor organization or to a charity organization or other third party in lieu of the labor organization. Any agreement that violates these prohibitions or the rights of an employee is void.

The bill creates civil and criminal penalties for violations and authorizes the attorney general and the district attorney in each judicial district to investigate alleged violations and take action against a person believed to be in violation. The bill states that all-union agreements are unfair labor practices.

The bill was introduced in the Senate and assigned to the Business, Labor, & Technology Committee. It is scheduled for hearing in committee on February 6 at 2 p.m.

Colorado Court of Appeals: Victim Intimidation Statute Applies only to Criminal Cases, not Civil Actions

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, January 26, 2017.

RetaliationWitnessCivilOther Bad ActsJury DeliberationsLimiting Instruction.

The Colorado Department of Human Services (DHS) took custody of Johnson’s two children based on information from Ranals. Later, Johnson and his girlfriend drove to a DHS office, but the office was closed. Before leaving, Johnson fired shots into a vehicle in the parking lot that appeared similar to the vehicle driven by the DHS employees who had removed the children. Johnson then drove to Ranals’s home and fired several shots into her house.

At trial, Johnson moved for a mistrial and later a new trial, based on Ranals’s testimony. Both motions were denied. A jury convicted Johnson of several counts, including retaliation against a witness or victim. The prosecution’s theory in support of the witness retaliation charge was that Johnson shot into Ranals’s home because she had reported him to DHS and he believed she might be a witness in the dependency and neglect proceedings against him.

On appeal, Johnson contended that the C.R.S. § 18-8-706 offense of retaliation against a witness applies only to retaliation against a witness because of the witness’s relationship to a criminal proceeding. The Colorado Court of Appeals examined the statute and its legislative history and concluded that C.R.S. § 18-8-706 applies only to retaliation against witnesses or victims because of their relationship to criminal, and not civil, proceedings. Because the prosecution only presented evidence regarding Ranals’s perceived involvement in a dependency and neglect proceeding, Johnson’s conduct could not have constituted witness retaliation under this statute.

Johnson also contended that the trial court erroneously denied his motion for a mistrial and erroneously denied his post-verdict motion for a new trial. At trial, Ranals made a statement referencing Johnson’s acts of domestic violence, despite the trial court’s prior ruling that evidence of Johnson’s other bad acts was inadmissible. The court properly exercised its discretion by directing the jury to disregard Ranals’s statement to ensure that Johnson would not be unfairly prejudiced. Further, Ranals’s statement was part of her trial testimony; the jury was not exposed to information or influences outside of the trial process. Thus, it was not extraneous information as contemplated by CRE 606(b).

The witness retaliation conviction was vacated and the judgment of conviction on the remaining convictions was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Denial of Crim. P. 35 Motion Without Hearing was In Error

The Colorado Court of Appeals issued its opinion in People v. Smith on Thursday, January 27, 2017.

Crim. P. 35(c)Post-Conviction ReliefPlea AgreementIneffective Assistance of CounselHearing—Sentencing.

Smith was charged with three sexual offenses. As the result of an unwritten plea agreement, Smith pleaded guilty to added counts of first degree assault with a deadly weapon and attempted sexual assault on a child by a person in a position of trust. The original charges were dismissed, and Smith was sentenced to a determinate 28-year term in the custody of the Department of Corrections.

Acting pro se, Smith timely moved for post-conviction relief under Crim. P. 35(c). The district court appointed counsel to expound on Smith’s claims in a supplemental motion. The court sought and received a response from the prosecution, which attached a report authored by the prosecution’s investigator. Smith filed a reply that did not specifically challenge the investigator’s report but rather identified contested issues of fact and requested an evidentiary hearing. In a written order, the district court denied Smith’s motion without holding a hearing.

On appeal, Smith contended that the district court erred in denying his motion without a hearing because he asserted sufficient facts to support his claim that plea counsel was ineffective. Under certain circumstances, a trial court may deny a post-conviction motion without conducting an evidentiary hearing if the motion, the files, and the record show the defendant is not entitled to relief, and where the court refers the matter for additional briefing, as it did here, it may enter a ruling based on the pleadings if it finds it appropriate to do so. Here, the district court relied, in part, on the report authored by the prosecution’s investigator in determining that Smith was not entitled to relief. Because the attachment was not part of the file and record of the case, and did not qualify as a pleading, the district court’s reliance on that document was error. It was also error for the court to rely on Smith’s plea colloquy in denying his claims related to that phase of the proceedings because Smith alleged sufficient facts to warrant a hearing on his claim of ineffective assistance related to his plea.

Smith also claimed ineffective assistance of counsel at his sentencing. The Colorado Court of Appeals determined that this claim was conclusory, vague, and lacking in detail, and that it failed to adequately allege the required prejudice.

The district court’s order on Smith’s claim of ineffective assistance of counsel at sentencing was affirmed. The district court’s order on Smith’s claim of ineffective assistance of counsel related to his plea was reversed and the case was remanded for a hearing solely on that claim.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/30/2017

On Monday, January 30, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Vaughn

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

CBA-CLE Welcomes Vincent O’Brien, Our New Executive Director

CBA-CLE is proud to welcome Vincent “Vince” O’Brien as our new Executive Director. Vince hails from Minnesota, where he was Assistant Director and Program Attorney at Minnesota CLE. He has been at Minnesota CLE since 1987. Vince also spent 20 years working as a firefighter and EMT for the Hastings Fire Department in Minnesota, and he is active on his local school board. Prior to his work at Minnesota CLE, Vince was a public defender and in private practice, where he practiced in the areas of probate, estate planning, family law, business planning, and criminal defense.

Vince is a proud husband to Amy, an ER nurse, and father of five children ranging in ages from 24 to 3. He likes to run and work out in his spare time, and he loves great literature. When asked about a favorite sports team, Vince wisely declined to comment (this is Broncos Country, after all), but mentioned that Amy is a Green Bay Packers fan.

CLE was a natural fit for Vince, because he is passionate about life-long learning and all it entails. He has worked two jobs for most of his adult life; he commented that working at CBA-CLE will be the first time he will have a sole professional objective. Vince notes that he loves to work with attorneys and listen to them and think about their needs: “There’s an obscure note in a translation of ‘The Art of War,’ where, in discussing the five elements, a commentating general talks about seeing the tree on the plain before it grows… I have been very fortunate a few times to ‘see the tree’ in my work in CLE.”

Vince plans 33 seminars annually, and notes that one of his favorite and most successful ventures was a series of TED Talk-style programs with the estate planning group. Vince mentioned that he likes all the programs he plans, from the rural agricultural law programs to the large multi-day probate conference. He is looking forward to working with the CBA-CLE members and staff to empower people to do best they can and grow to meet increasingly diversified educational needs.

Before working at Minnesota CLE, Vince was a practicing attorney. When asked about a favorite practice area, Vince said, “Cases where I felt I truly helped people were my favorite—in criminal defense, family law, and Veterans disability appeals.” He related a story where once he used vacation time to try a family law case pro bono. On the first day of trial, the judge called counsel and said that if he were to rule preliminarily on what was in the record, he would rule against Vince’s client. However, after that week of “vacation,” Vince prevailed and his client had a successful outcome.

Education of non-attorneys is also important to Vince—he has been on his local school board in Hastings, Minnesota, for many years, and has been in leadership roles such as the school board chair, vice-chair, treasurer, and secretary. He found that his extensive school board experience helped his continuing legal education work in two ways. First, he took an active role in getting into classrooms and observing how “educational processes, differentiation, and technology, blended with classically wonderful teaching methods and hard work led to evolved learning, data-driven practices, and engaged students.” Vince would like to transfer these teaching models into CLE programming. Second, working on the school board helped him learn to listen respectfully to the different factions and interests to steer vision and focus processes.

CBA-CLE is excited to welcome Vince. His vision for our future is to work together with our great staff and wonderful stakeholders throughout Colorado, to evolve the CLE work as best we can. He is excited to present innovative and important education for attorneys.

Colorado Court of Appeals: Sentence Enhancement Based on Victims’ Ages Not Structural Error

The Colorado Court of Appeals issued its opinion in People v. Ewing on Thursday, January 26, 2017.

Leon Ewing was accused in March 2013 of sexually assaulting two brothers, M.B. and J.B., during the summer of 2008 while he was living in their family’s home. The boys were around 11 and 13 at the time of the assaults. The allegations arose in May 2011, and although they were investigated, Detective Nicholas Kundert could not locate Ewing until December 2012. After Ewing was located, he was charged with nine class 3 felony counts of sexual assault on a child by one in a position of trust—eight pertaining to the crimes against J.B. and one pertaining to the crimes against M.B. For the eight charges concerning J.B., Ewing was charged with one count of sexual assault on a child by one in a position of trust (pattern of abuse), and one count of sexual assault on a child by one in a position of trust (victim under 15 years old) for each of four separate incidents. The charge pertaining to M.B. was one count of sexual assault on a child by one in a position of trust (victim under fifteen 15 old). The complaint also included three crime of violence counts.

The jury convicted Ewing of two counts of sexual assault on a child by one in a position of trust — one against J.B. and one against M.B. It specifically found that the assault against J.B. was not committed as part of a pattern of abuse. The jury made no findings regarding J.B.’s and M.B.’s ages at the time of the assaults. At sentencing, the court entered convictions and sentences for two counts of class 3 felony sexual assault on a child by one in a position of trust (victim under 15 years old). Sexual assault on a child by one in a position of trust is typically a class 4 felony. However, the offense is elevated to a class 3 felony if the victim is less than 15 years of age.

On appeal, Ewing contended that because the jury made no finding as to the ages of the victims at the time of the assaults, the district court erred in entering convictions and sentences for a class 3 felony. The court of appeals characterized the elevation of the offense to a class 3 felony as a sentence enhancer. The court held that although the district court erred in enhancing Ewing’s sentence without submitting the question to the jury, the error was harmless. The court found no reasonable possibility that the jury could have concluded that the victims were 15 or older at the time of the offenses. The information alleged that the offenses occurred between May 1, 2008, and August 31, 2008. Because each victim testified to his birthday, the jury was presented with undisputed evidence that the boys were not yet 15 years old at the time of the assaults. The Colorado Court of Appeals found no plain error in the district court’s sentence enhancement.

Ewing also argued that his recross-examination of Detective Kundert was impermissibly limited by the trial court. During Detective Kundert’s testimony, defense counsel asked to recross the detective “on biases,” arguing that the prosecution brought up “witness bias and/or interviewer/interrogative bias,” which had not been previously raised on direct or cross-examination. Defense counsel did not, however, raise a Confrontation Clause issue. The court denied the request, stating that the issue was extrinsic and had already been addressed. Because Ewing did not raise the Confrontation Clause issue in the trial court, the court of appeals reviewed for plain error and found none. The court found that the trial court’s decision to deny the recross was not in error because any information that could potentially have been elicited was only marginally relevant. Even assuming error, the court of appeals did not find that it rose to the level of plain error.

The court of appeals affirmed Ewing’s convictions and sentences.

HB 17-1121: Requiring Criminal History Checks for Professional Health Care Workers with Prescriptive Authority

On January 20, 2017, Rep. Janet Buckner introduced HB 17-1121, “Concerning Certain Health Care Professions Regulated by the Department of Regulatory Agencies, and, in Connection Therewith, Requiring Criminal History Record Checks for Individuals with Prescriptive Authority and Certified Nurse Aides, Repealing the Nurse Licensure Compact, and Enacting the Enhanced Nurse Licensure Compact.”

Patient Safety Act

The bill requires applicants for initial licensure or certification, as well as current licensees and certificate holders, to submit to a fingerprint-based criminal history record check for:

  • Podiatrists (sections 1 and 2);
  • Dentists and dental hygienists (sections 3 and 4);
  • Medical doctors, physician assistants, and anesthesiologists (sections 5 and 6);
  • Nurses (sections 7 and 8);
  • Certified nurse aides (sections 10 and 11);
  • Optometrists (sections 13 through 15); and
  • Veterinarians (sections 16 through 18).

Section 9 of the bill eliminates the nurse alternative to discipline program.

Section 12 of the bill requires an employer of a certified nurse aide (CNA) to report whenever a CNA is terminated from employment or resigns in lieu of termination, within 30 days after the termination or resignation. The state board of nursing is authorized to fine an employer that fails to report the termination or resignation.

Section 19 amends the ‘Medical Transparency Act of 2010’ to include a person applying for nurse licensure under the ‘Enhanced Nurse Licensure Compact’ within the definition of ‘applicant’.

Section 20 of the bill repeals the current ‘Nurse Licensure Compact’ and adopts the ‘Enhanced Nurse Licensure Compact’.

The bill was introduced in the House and assigned to the Health, Insurance, & Environment Committee. It is scheduled for hearing in committee at 1:30 p.m. on February 16, 2017.

HB 17-1119: Providing a Workers’ Compensation Payment Mechanism for Uninsured Employers

On January 20, 2017, Reps. Tracy Kraft-Tharp & Lang Sias and Sens. Jake Tate & Cheri Jahn introduced HB 17-1119, “Concerning the Payment of Workers’ Compensation Benefits to Injured Employees of Uninsured Employers.”

The bill creates the ‘Colorado Uninsured Employer Act’ to create a new mechanism for the payment of covered claims to workers who are injured while employed by employers who do not carry workers’ compensation insurance. The bill creates the Colorado uninsured employer fund, which consists of penalties from employers who do not carry workers’ compensation insurance.

The bill creates the uninsured employer board to establish the criteria for the payment of benefits, to set rates, to adjust claims, and to adopt rules. The board is required to adopt, by rule, a plan of operation to administer the fund and to institute procedures to collect money due to the fund.

The bill was introduced in the House and assigned to the Business Affairs and Labor Committee.

Tenth Circuit: Unpublished Opinions, 1/27/2017

On Friday, January 27, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Walker v. Scherbarth

Griffin v. Bryant

Johnson v. Oklahoma Department of Transportation

Collins v. Schustermann

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

Colorado Court of Appeals: “Fruit of the Poisonous Tree” Doctrine Did Not Apply to Statements

The Colorado Court of Appeals issued its opinion in People v. Archuleta on Thursday, January 26, 2017.

On December 5, 2012, Roger Louis Archuleta and his roommate in the housing facility left Archuleta’s apartment around 7 a.m., as captured by surveillance video. The roommate returned home around noon, and Archuleta returned later, remaining home the rest of the night. That night, other residents of the housing facility reported hearing loud noises. Around 4 a.m. on December 6, the surveillance video showed Archuleta dragging his roommate’s body down the hall, then back to his room. Archuleta then informed a residential aide at the housing facility that he had a body in his apartment that needed to be removed.

When the police arrived at defendant’s apartment, they found the deceased victim lying just inside the door, covered by a blanket. The police observed the victim had blood on him and appeared to have been beaten. They also found defendant seated on a mattress in the living room, apparently highly intoxicated and with a substantial amount of dried blood on his face and hands. There was blood spattered on all four walls in the apartment bedroom, which the prosecution’s expert testified was consistent with an altercation between two people.

The police took defendant to the police station; advised him of his Miranda rights under and interviewed him. They also took pictures of him, collected his clothing, and took swabs of suspected blood. Defendant ended the interview at the police station by indicating he wanted to speak to an attorney. Without obtaining a court order or defendant’s consent, police took defendant to the hospital, where three samples of his blood were drawn at one hour intervals. The court later held that the blood draw was unconstitutional; that holding was not challenged on appeal. Defendant was charged with second degree murder and first degree assault, and the jury found him guilty as charged.

Defendant appealed, arguing his convictions must be reversed because under the fruit of the poisonous tree doctrine, the trial court erred by failing to suppress statements he made in the course of his transport to and detention at the hospital for his blood draws, and also because there were errors in the jury instructions and the trial court improperly elicited and admitted testimony from the prosecution’s blood spatter analysis expert that his conclusions were independently verified. The court of appeals addressed the fruit of the poisonous tree doctrine argument first.

The court found no error in the trial court’s admission of defendant’s statements to police officers while at the hospital and in transit. Defendant had made numerous rambling statements to the police while at the hospital, including several comments that seemed to relate to the victim’s death. At one point, the officer left but a recorder was left on in the room. Defendant was heard saying, “Shit. [Victim’s name]. You’re dead, you’re dead brother. I killed you.” The trial court held that the fruit of the poisonous tree was the result of the blood draw, not the statements. The court noted that it was entirely speculative whether defendant would have continued to make statements while at the police station, and the vast majority of his statements were spontaneous. The court of appeals agreed, noting that the exclusionary rule was properly applied to the blood draw results, and that the statements were not fruit of the poisonous tree. The court found that defendant failed to establish a causal connection between the illegality of the warrantless blood draws and the challenged statements.

Defendant also contended the jury instruction defining “cause” misstated the law because it instructed the jury that the victim’s preexisting physical condition was not a defense to the murder and assault charges. He argues that while a victim’s preexisting conditions generally do not impact the causation element, they are relevant to the culpable mental state. The court of appeals disagreed. The court held that because the trial court’s instruction that “it is no defense that the victim was suffering from preexisting physical ailments, illnesses, injuries, conditions or infirmities” was not a stand-alone instruction but rather was embedded into the definition of “cause,” there was no error. The court noted that it is no defense that a victim who had been in good physical condition would have survived an attack; a defendant cannot be excused from guilt and punishment because his victim was weak and could not survive the torture he administered. The court rejected defendant’s contention that the instruction misstated the law.

The defendant also asserted that the trial court plainly erred by giving an erroneous elemental instruction for first degree assault and admitting hearsay testimony from the prosecution’s blood spatter analysis expert. The court of appeals again disagreed, finding that the instruction tracked the statutory language and was therefore sufficient, and the blood spatter analyst’s testimony that someone else always reviews his work was a general statement that did not rise to the level of plain error.

The court of appeals affirmed defendant’s convictions.