May 24, 2018

Archives for January 31, 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.