May 27, 2017

Bills Signed Regarding Amending State Constitution, Revising Victim Rights Laws, and More

On Friday, April 28, 2017, the governor signed 29 bills into law and vetoed one bill. To date, he has signed 195 bills and vetoed one bill this legislative session. Some of the bills signed Friday include a bill to implement voter-approved changes to make it more difficult to amend the state constitution, a bill changing reporting requirements from the State Judicial Department to the General Assembly, a bill revising victim rights laws, a bill mandating minimum sentences for persons convicted of sex trafficking, and more. The bills signed Friday are summarized here.

  • HB 17-1158“Concerning the Regulation of Charitable Solicitations by the Secretary of State, and, in Connection Therewith, Modifying and Clarifying Filing Requirements and Enforcement of the ‘Colorado Charitable Solicitations Act,’ by Rep. Hugh McKean and Sens. Beth Martinez Humenik & Jim Smallwood. The bill clarifies that a charitable organization’s registration with the secretary of state must be renewed on an annual basis if the charitable organization intends to solicit donations in Colorado, and an organization may not continue to solicit if it fails to renew its registration. The bill also requires an organization to update information in its registration within 30 days after any change.
  • HB 17-1172“Concerning Criminal Penalties for Persons who Commit Human Trafficking of a Minor for Sexual Servitude,” by Reps. Terri Carver & Clarice Navarro and Sen. John Cooke. The bill requires a court to sentence a person convicted of a class 2 felony for human trafficking of a minor for sexual servitude to the Department of Corrections for a term of at least 8 years.
  • HB 17-1189“Concerning the Limit on the Number of Terms a Member of the Colorado Wine Industry Development Board may Serve,” by Reps. Jessie Danielson & Dan Thurlow and Sen. Ray Scott. The bill allows a member of the Colorado Wine Industry Development Board to serve two full 4-year terms insteat of one. Members may also continue to serve after the expiration of their terms until the appointment of a successor.
  • HB 17-1205“Concerning Changing the Definition of ‘Salvage Vehicle,’ by Rep. Jovan Melton and Sen. Beth Martinez Humenik. The bill changes the definition of ‘salvage vehicle’ to add another test of when an insurer determines the vehicle to be a total loss. The bill also adds theft damage as an exclusion to the types of damage that can cause a vehicle to be a salvage vehicle.
  • HB 17-1218“Concerning an Expansion of the State’s Ability to Share Information about State Financial Institutions with Other Governmental Regulators,” by Rep. Alec Garnett and Sen. Kevin Priola. The bill allows the banking board and the state bank commissioner to share records and other information about banks, trust companies, and money transmitters with banking or financial institution regulatory agencies of other states or United States territories if the governmental agency is required to maintain the confidentiality of the records and shares similar information with the division of banking.
  • HB 17-1241: “Concerning the Nonsubstantive Relocation of Laws Related to Indian Arts and Crafts Sales from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill relocates Article 44.5 of Title 12, which imposes requirements and penalties pertaining to the sale or offering for sale of authentic Indian and other arts and crafts, to a new Part 2 in Article 15 of Title 6 of the Colorado Revised Statutes, governing consumer and commercial affairs.
  • HB 17-1272“Concerning the Scheduled Repeal of Reports by the Department of Labor and Employment to the General Assembly,” by Rep. Edie Hooten and Sen. Dominick Moreno. The bill amends repeal dates and reporting requirements from the Department of Labor and Employment to the General Assembly.
  • HB 17-1316“Concerning Delaying the Implementation of House Bill 16-1309,” by Rep. Susan Lontine and Sen. Vicki Marble. The bill delays the implementation of HB 16-1309, which was enacted by the 2016 General Assembly and concerns a defendant’s right to counsel in certain cases considered by municipal courts, until July 1, 2018.
  • SB 17-051“Concerning the Rights of Crime Victims,” by Sens. Bob Gardner & Rhonda Fields and Reps. Polly Lawrence & Mike Foote. The bill makes several amendments to victim rights statutes, including amendments to the definitions of “crime,” “critical stages,” and “modification of sentence”; creation of a right for a victim to be informed of parole or pardon decisions; and more.
  • SB 17-083: “Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules and Regulations of State Agencies,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill extends all state agency rules and regulations that were adopted or amended on or after November 1, 2015, and before November 1, 2016, with the exception of the rules and regulations specifically listed in the bill.
  • SB 17-152“Concerning the Implementation of Voter-Approved Changes to the Colorado Constitution that Make it More Difficult to Amend the State Constitution, and, in Connection Therewith, Prohibiting a Petition for an Initiated Amendment to the State Constitution from Being Submitted to Voters Unless the Petition is Signed by the Constitutionally Required Number of Registered Electors who Reside in Each State Senate District and Total Number of Registered Electors, Requiring at Least Fifty-Five Percent of the Votes Cast on Any Amendment to the State Constitution to Adopt the Amendment Unless the Amendment Only Repeals in Whole or in Part a Provision of the State Constitution, in Which Case Requiring a Majority of the Votes Cast on the Amendment to Adopt the Amendment, and Making an Appropriation,” by Sen. Lois Court and Rep. Chris Kennedy. The bill implements changes to the Colorado constitution approved by voters at the 2016 general election that make it more difficult to amend the state constitution.
  • SB 17-179“Concerning the Limitation on the Amount of Fees that Can be Assessed for Allowing Solar Energy Device Installations, and, in Connection Therewith, Extending the Repeal Date,” by Sens. Andy Kerr & Bob Gardner and Reps. Lang Sias & Leslie Herod. The bill extends the repeal date of existing laws that limit the amount of permit, plan review, or other fees that counties, municipalities, or the state may charge for installing solar energy devices or systems.
  • SB 17-220“Concerning the Continuation of the Restorative Justice Coordinating Council,” by Sen. Lois Court and Rep. Jeni James Arndt. The bill extends the Council and moves it from Title 19, Colorado Revised Statutes, which relates to the juvenile code, to Title 13, Colorado Revised Statutes, which relates to the judicial code, since restorative justice use has expanded from juvenile cases to adult cases.
  • SB 17-223“Concerning the Nonsubstantive Relocation of Laws Related to the Treatment of Human Bodies After Death from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Bob Gardner and Rep. Leslie Herod. The bill relocates Parts 1 and 2 of Article 34 of Title 12 of the Colorado Revised Statutes related to anatomical gift and unclaimed human bodies to new Parts 2 and 3 of Article 19 of Title 15.
  • SB 17-224“Concerning the Nonsubstantive Relocation of Laws Related to Commercial Driving Schools from Title 12 of the Colorado Revised Statutes as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Pete Lee. The bill relocates the statutes governing commercial driving schools to part 6 of article 2 of title 42.
  • SB 17-226: “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Financial Institutions from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill relocates Article 13 of Title 12, pursuant to which the Commissioner of Financial Services and the Financial Services Board regulate life care institutions, to Article 49 of Title 11, and Article 52 of Title 12, pursuant to which the Banking Board and the State Bank Commissioner regulate money transmitters, to Article 110 of Title 11.
  • SB 17-231“Concerning the Scheduled Repeal of Reports by the Department of Transportation to the General Assembly,” by Sen. Dominick Moreno and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Transportation to the General Assembly.
  • SB 17-233“Concerning the Scheduled Repeal of Reports by the Department of Law to the General Assembly,” by Sen. Jack Tate and Rep. Jeni James Arndt. The bill amends repeal dates and reporting requirements from the Department of Law to the General Assembly.
  • SB 17-234“Concerning the Scheduled Repeal of Reports by the Department of Human Services to the General Assembly,” by Sen. Andy Kerr and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Human Services to the General Assembly.
  • SB 17-241“Concerning the Scheduled Repeal of Reports by the Judicial Department to the General Assembly,” by Sen. Jack Tate and Rep. Edie Hooten. The bill amends repeal dates and reporting requirements from the State Judicial Department to the General Assembly.
  • SB 17-246“Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems and Making a Corresponding Change to the Name of the Associated Task Force,” by Sen. Beth Martinez Humenik and Reps. Jonathan Singer & Dafna Michaelson Jenet. The bill changes the name of the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems’ to the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems’. The bill makes a corresponding change to the associated task force and cash fund. The bill also modernizes terminology related to mental health disorders.
  • SB 17-255“Concerning the Creation of the Technology Advancement and Emergency Fund in the Office of Information Technology, and, in Connection Therewith, Making an Appropriation,” by Sen. Kent Lambert and Rep. Bob Rankin. The bill creates the Technology Advancement and Emergency Fund in the Office of Information Technology. Subject to annual appropriation by the General Assembly, the Office may expend money in the fund to cover one-time costs associated with emergency information technology expenditures, to address deferred maintenance of state agency information technology assets, and to provide additional services to address unforeseen service demands.
  • SB 17-257“Concerning the Creation of the Community Museums Cash Fund for the Administration of Revenues Generated by Community Museums Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation,” by Sen. Dominick Moreno and Rep. Bob Rankin. The bill deposits revenues from the community museums in a new community museums cash fund which would be appropriated specifically for the activities of the community museums.
  • SB 17-260“Concerning Transfers to the General Fund from Cash Funds with Severance Tax Revenues,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make certain transfers from the cash funds to the general fund on June 30, 2018.
  • SB 17-261“Concerning the Creation of the 2013 Flood Recovery Account in the Disaster Emergency Fund,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill creates the 2013 flood recovery account in the disaster emergency fund and requires the state treasurer to transfer $12.5 million from the general fund to the account on July 1, 2017.
  • SB 17-262“Concerning the Transfer of Money from the General Fund to Cash Funds that are Used for the State’s Infrastructure,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make transfers for this fiscal year and the next three fiscal years from the general fund to the capital construction fund and the highway users tax fund, and requires percentage-based transfers after that.
  • SB 17-263“Concerning Capital-related Transfers of Money,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes certain transfers from the general fund.
  • SB 17-265“Concerning a Transfer of Money from the State Employee Reserve Fund to the General Fund,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to transfer $26.3 million from the state employee reserve fund to the general fund on July 1, 2017.
  • SB 17-266“Concerning a Reduction in the Amount of the General Fund Reserve Required for the Fiscal Year 2016-17,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill reduces the statutorily required general fund reserve from 6.5% to 6% of the amount appropriated for expenditure from the general fund.

Additionally, the governor vetoed one bill on Friday. That bill was SB 17-139, “Concerning the Extension of the Credit for Tobacco Products that a Distributor Ships or Transports to an Out-of-State Consumer.” The governor stated that he was unpersuaded there would be a significant economic impact, and he was concerned about educating Colorado consumers on the dangers of tobacco use.

For a list of the governor’s 2017 legislative actions, click here.

Colorado Court of Appeals: Oil and Gas Commission Has Authority to Issue Rule at Petitioner’s Request

The Colorado Court of Appeals issued its opinion in Martinez v. Colorado Oil and Gas Commission on Thursday, March 23, 2017.

Oil and Gas Conservation ActColorado Oil and Gas Conservation CommissionPublic Health and Safety.

Petitioners filed a petition for rulemaking pursuant to the Colorado Oil and Gas Conservation Commission’s Rule 529(b). Petitioners proposed a rule requesting that the Commission not issue permits for drilling oil and gas wells unless certain conditions were met to demonstrate that the drilling would not have specified adverse effects. The Commission ultimately denied the petition, concluding that (1) the proposed rule mandated action that exceeded the Commission’s statutory authority; (2) the requested third-party review contradicted the Commission’s nondelegable duty to promulgate rules; and (3) the public trust doctrine, which petitioners relied on to support their request, has been expressly rejected in Colorado. The district court affirmed the Commission’s order after concluding that the Commission rationally decided to deny the petition after considering input from stakeholders on both sides of the fracking issue in accordance with the Oil and Gas Conservation Act’s requirement of a balance between the development of oil and gas resources and the protection of public health, safety, and welfare.

On appeal, petitioners contended that the district court and the Commission erred in interpreting the Act. The Colorado Court of Appeals determined that the plain meaning of the statutory language indicates that fostering balanced development, production, and use of natural resources is in the public interest when that development is completed subject to the protection of public health, safety, and welfare. Therefore, the Commission erred in interpreting C.R.S. § 34-60-102(1)(a)(I) as requiring a balance between development and public health, safety, and welfare.

The district court’s and Commission’s orders were reversed and the case was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Electronic Court Notice Bill, Increase of Life Insurance Exemption Bill, Subpoena Clarifications Bill, and More Signed Monday.

On Monday, March 20, 2017, the governor signed 17 bills into law. To date, he has signed 80 bills this legislative session. Some of the bills signed Monday include a bill increasing the exemption amount for a cash surrender of life insurance, a bill authorizing the fiduciary of an endowment fund to distribute principal under a unitrust election, a bill allowing an attorney general or district attorney to issue a subpoena for people engaged in deceptive trade practices, a bill allowing court clerks to electronically notice parties, and a bill increasing the appropriation to the Department of Law for providing legal services to the Department of Education. The bills signed Monday are summarized here.

  • HB 17-1023“Concerning a Clarification of Procedures for Subpoenas for Deceptive Trade Practices,” by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Chris Holbert & Lois Court. The bill clarifies that the attorney general or a district attorney may issue a subpoena pursuant to C.R.C.P. 4 to a person whom he or she has reasonable cause to believe has engaged or is engaging in a deceptive trade practice in violation of Colorado statute.
  • HB 17-1039“Concerning Communication Issues Related to Restorative Justice,” by Rep. Pete Lee and Sen. Daniel Kagan. The bill allows the district attorney to consent to an assessment for suitability for participation in restorative justice practices, including victim-offender conferences, as part of a recommended sentence in a plea bargain.
  • HB 17-1041“Concerning Measures to Inform Students of Education Opportunities Leading to Jobs,” by Rep. Phil Covarrubias and Sen. Kevin Priola. The bill requires schools to inform students of military enlistment as a path to educational opportunities.
  • HB 17-1056“Concerning the Eligibility of a Veterans’ Service Organization to Accept Public Service Assignments Offered in Connection with Misdemeanor Sentencing,” by Rep. Michael Weissman and Sens. Bob Gardner & Andy Kefalas. The bill expands the criteria for organizations that may accept community or useful public service assignments to include veterans’ service organizations organized under 501(c)(4) or 501(c)(19) of the tax code, and specifies that the court or other entity making the assignment retains discretion to determine which organizations may be included in its program of community or useful public service.
  • HB 17-1061“Concerning Modification of the Class of Vehicles that is Subject to Regulation as Commercial Vehicles,” by Reps. Jon Becker & Jovan Melton and Sens. Nancy Todd & Ray Scott. The bill increases the minimum weight for classification as a commercial vehicle subject to the statutory and regulatory standards for commercial vehicles from 10,001 pounds to 16,001 pounds unless the vehicle is registered for use in interstate commerce.
  • HB 17-1093“Concerning an Increase in the Exemption for the Cash Surrender Value of Life Insurance,” by Rep. Kim Ransom and Sen. Daniel Kagan. The bill increases the exemption for cash surrender value of life insurance policies to $250,000.
  • HB 17-1096“Concerning Endowment Care Funds Administered for Cemetery Authorities,” by Rep. Larry Liston and Sen. Jim Smallwood. The bill authorizes the fiduciary of an endowment fund to distribute principal, such as capital gains, under a unitrust election.
  • HB 17-1135“Concerning the Portability of Employment Background Checks for a Child Care Worker who Works for the Same Common Ownership Entity,” by Rep. Jeff Bridges and Sen. Kevin Priola. The bill allows a child care worker who is employed in a licensed facility that is wholly owned, operated, and controlled by a common ownership group or school district to use a single completed fingerprint-based criminal history record check and a check of the records and reports of child abuse or neglect to satisfy the requirements of the necessary background checks if the employee also works for or transfers to another licensed facility.
  • HB 17-1142“Concerning Notices of Certain Court Proceedings,” by Rep. Dominique Jackson and Sen. Bob Gardner. The bill allows the clerk of the court to send notice by first-class mail or electronically using the e-filing system of the judicial department.
  • HB 17-1143“Concerning Audits of Correspondence Sent to Medicaid Clients,” by Rep. Lois Landgraf and Sen. Larry Crowder. The bill directs the Office of the State Auditor to conduct or cause to be conducted an audit of client correspondence, including letters and notices, sent to clients or potential clients in Medicaid programs.
  • SB 17-011“Concerning the Creation of a Technical Demonstration Forum to Study Solutions to Improve Transportation Access for People with Disabilities,” by Sen. Kent Lambert and Rep. Polly Lawrence. The bill creates a technical demonstration forum consisting of eight members to study and document how advanced technologies can improve transportation access for people with disabilities.
  • SB 17-041“Concerning Employment Contracts for Positions at Institutions of Higher Education that are Funded by Revenue Generated from Auxiliary Activities,” by Sen. Kevin Priola and Reps. Yeulin Willett & Edie Hooten. The bill exempts certain positions at institutions of higher education from limits for employment contract terms or amounts.
  • SB 17-060“Concerning Relocation of the Colorado Student Leaders Institute from the Office of the Lieutenant Governor to the Department of Higher Education, and, in Connection Therewith, Making and Reducing an Appropriation,” by Sen. Nancy Todd and Rep. James Wilson. The bill relocates the Colorado Student Leaders Institute to the Department of Higher Education with no changes to the program.
  • SB 17-077“Concerning the Eligibility of Certain Government Agencies to Apply for a Special Event Permit to Sell Alcohol Beverages,” by Sen. Cheri Jahn and Reps. Tracy Kraft-Tharp & Yeulin Willett. The bill authorizes certain agencies to obtain a special event permit to sell alcohol beverages for a limited period.
  • SB 17-109“Concerning the Use of Industrial Hemp in Products Designed for Consumption,” by Sen. Kerry Donovan and Rep. Jeni Arndt. The bill creates a group under the commissioner of agriculture to study the feasability of including hemp products in animal feed.
  • SB 17-196“Concerning the Improvement of the Department of Law’s Information Technology Security,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the appropriation to the Department of Law to improve the Department’s information technology security based on an external auditor’s recommendations.
  • SB 17-197“Concerning the Provision of Legal Services for the Department of Education in the 2016-17 State Fiscal Year,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the amount of reappropriated funds that are appropriated to the Department of Law for the purpose of providing additional legal services for the Department of Education.

For a list of the governor’s 2017 legislative actions, click here.

Bills Correcting Statutory References, Changing Child Welfare Allocations, Implementing State Engineer’s Functions, and More Signed

On Friday, March 17, 2017, the governor signed 21 bills into law. To date, he has signed 63 bills this 2017 legislative session. The bills signed Friday include a bill to update statutory references to people with disabilities, a bill outlining the procedure to correct statutory references in administrative procedural rules, a bill redetermining the child welfare allocation formula, and a bill exempting steroids injected into nonhumans from controlled substances statutes. The bills signed Friday are summarized here.

  • HB 17-1006“Concerning the Authorization of a Process to Correct Statutory Citations Contained in Executive Branch Agency Rules Published in the Code of Colorado Regulations without the Requirement to Follow Rule-Making Procedures,” by Rep. Mike Foote and Sen. Daniel Kagan. The bill allows agencies to correct statutory citations in the code of Colorado regulations without notice, comment, or a hearing by submitting to the secretary of state a specific, written determination by the attorney general.
  • HB 17-1011“Concerning a Limitation on When Certain Disciplinary Actions may be Commenced Against a Mental Health Professional, and, in Connection Therewith, Requiring that a Mental Health Professional Provide Notice to Former Clients Regarding Record Retention and that All Complaints be Resolved by the Agency within Two Years after the Date the Complaint was Filed,” by Rep. Jovan Melton and Sen. Jack Tate. The bill requires that any complaint filed with the division of professions and occupations in the department of regulatory agencies against a mental health professional alleging a maintenance-of-records violation must be commenced within 7 years after the alleged act or failure to act giving rise to the complaint.
  • HB 17-1014“Concerning the Elimination of the Criminal Penalty Imposed Upon an Elector for Disclosing the Contents of the Elector’s Voted Ballot,” by Reps. Paul Rosenthal & Dave Williams and Sens. Kerry Donovan & Owen Hill. The bill deletes the ballot selfie prohibition in the Uniform Election Code provided certain conditions are met.
  • HB 17-1032“Concerning the Evidentiary Privilege for Communications Made During the Provision of Certain Peer Support Services,” by Rep. Jeni Arndt and Sen. John Cooke. The bill clarifies that privileged peer support communications need not be made during individual meetings in order to be confidential.
  • HB 17-1034“Concerning Licensing Changes to the Medical Marijuana Code to Conform with the Retail Marijuana Code,” by Rep. Dan Pabon and Sen. Randy Baumgardner. The bill creates a requirement for a medical marijuana business operator to be licensed, and allows a medical marijuana licensee to move his or her business anywhere in Colorado upon approval of the state and local jurisdiction. The bill also allows a medical marijuana licensee to remediate its product if it contains a foreign substance.
  • HB 17-1046“Concerning Updating Statutory References to Certain Limited Outdated Terms Relating to People with Disabilities,” by Rep. Steve Lebsock and Sen. Kerry Donovan. The bill updates certain limited terms in statute that refer to persons with intellectual and developmental disabilities or physical disabilities using insensitive or outdated terminology.
  • HB 17-1050“Concerning the Annual In-Service Training Required for a County Sheriff,” by Rep. Hugh McKean and Sen. Daniel Kagan. The bill specifies that each sheriff undergo at least the number of hours required for all certified peace officers by the peace officers standards and training board (POST board), but in no case less than 20 hours.
  • HB 17-1052“Concerning Factors to Take Into Consideration in Determining the Child Welfare Allocation Formula in a Given Fiscal Year,” by Rep. Susan Beckman and Sen. Jim Smallwood. The bill removes certain data-gathering factors currently required to be taken into consideration in determining a fiscal year’s child welfare allocation formula for counties and replaces those with a broader scope of factors that directly affect the population of children in need of child welfare services.
  • HB 17-1054“Concerning Partnerships Between Local Governments and Military Installations, and, in Connection Therewith, Identifying Shared-Service Opportunities to Reduce Costs and Increase Efficiencies,” by Reps. Terri Carver & Dan Nordberg and Sen. Nancy Todd. The bill directs the department of local affairs to support cooperative intergovernmental agreements between military installations and local governments to the extent possible.
  • HB 17-1055“Concerning a Voluntary Contribution Designation Benefiting the Urban Peak Housing and Support Services for Youth Experiencing Homelessness Fund that Appears on the State Individual Tax Return Forms,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill creates the Urban Peak Housing and Support Services for Youth Experiencing Homelessness fund in the state treasury and adds a check-off to state tax returns for five years.
  • HB 17-1094“Concerning Modifications to the Requirements for Health Benefit Plans to Cover Health Care Services Delivered via Telehealth,” by Reps. Perry Buck & Donald Valdez and Sens. Kerry Donovan & Larry Crowder. The bill makes several changes to broaden the application of telehealth services.
  • HB 17-1105“Concerning Narrowing the Circumstances in Which Physical Inspection of a Vehicle is Required before Issuing Legal Documentation Identifying the Vehicle,” by Rep. Jon Becker and Sen. Randy Baumgardner. The bill specifies that the department of revenue may not require physical inspection of a vehicle, including a VIN inspection, to verify information about the vehicle before registering or titling the vehicle if certain requirements are met.
  • HB 17-1137“Concerning the Scheduled Repeal of Reports by the Department of Revenue to the General Assembly,” by Reps. Dan Thurlow & Edie Hooton and Sens. Dominick Moreno & Jack Tate. The bill amends reporting requirements of the Department of Revenue.
  • HB 17-1140“Concerning Permitted Uses of Fee-for-Service Contract Money by the Colorado School of Mines,” by Rep. Jessie Danielson and Sen. Tim Neville. In addition to tuition supports, the bill allows Colorado School of Mines to use state fee-for-service contract money to fund  other services and programs, including counseling, academic support, student recruiting, and precollegiate programs.
  • SB 17-026“Concerning Requirements Governing Implementation of the State Engineer’s Functions, and, in Connection Therewith, Restructuring the Fee that the State Engineer may Charge for Rating Certain Types of Water Infrastructure, Repealing Certain Requirements, and Updating Language in the Statutes Regarding the Division of Water Resources,” by Sen. Jerry Sonnenberg and Rep. Jeni Arndt. The bill makes several changes to the state engineer’s functions and fee requirements.
  • SB 17-030“Concerning the Exemption from the Schedules of Controlled Substances any Anabolic Steroid that is Administered through Injection into Nonhuman Species,” by Sen. Randy Baumgardner and Rep. Daneya Esgar. The bill exempts from the definition of ‘anabolic steroid’ human chorionic gonadotropin licensed for animal use only if it is expressly intended for administration through implants or injection into cattle or other nonhuman species.
  • SB 17-034“Concerning Extension of the Period Following the Declaration by the Governor of a Disaster Emergency in a County Within Which the Board of County Commissioners of the County may Transfer County General Fund Money to the County Road and Bridge Fund for the Purposes of Disaster Response and Recovery,” by Sens. Kevin Lundberg & Matt Jones and Reps. Hugh McKean & Mike Foote. The bill extends from 4 years to 8 years the period within which the board of county commissioners of the county may transfer general fund money to the road and bridge fund for disaster response and recovery.
  • SB 17-050“Concerning the Consolidation of Grant Programs Relating to Forest Management,” by Sen. John Cooke and Reps. Jeni Arndt & KC Becker. The bill transfers a forest management grant program from the Department of Natural Resources to the Forest Service, and realigns the funding for the new grant program and the healthy forest and vibrant communities fund.
  • SB 17-056“Concerning the Scheduled Repeal of Reports by the Department of Public Health and Environment to the General Assembly,” by Sen. Andy Kerr and Rep. Jeni Arndt. The bill addresses reporting requirements of the department of public health and environment.
  • SB 17-090“Concerning How to Measure the Level of Delta-9 Tetrahydrocannabinol in Industrial Hemp,” by Sen. Randy Baumgardner and Rep. Diane Mitsch Bush. The bill requires the commissioner of agriculture to determine the level of delta-9 tetrahydrocannabinol in industrial hemp by measuring the combined concentration of delta-9 tetrahydrocannabinol and its precursor, tetrahydrocannabinolic acid.
  • SB 17-127“Concerning an Expansion of the Exemption from the Requirements that Apply to a Mortgage Loan Originator to Include Up to Three Loans Per Year Without Compensation Between Family Members,” by Sen. Jack Tate and Rep. Dan Pabon. The bill expands the mortgage loan originator exemption to include up to 3 loans per year without compensation, other than interest, between family members, and directs the board of mortgage loan originators to define ‘family member’ by rule.

For a list of the governor’s legislative actions, please visit here.

Colorado Court of Appeals: Complaint Filed After Denial of Motion to Reconsider was Untimely

The Colorado Court of Appeals issued its opinion in Sterling Ethanol, LLC v. Colorado Air Quality Control Commission on Thursday, February 23, 2017.

Interlocutory Appeal—Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, Companies) are ethanol manufacturing plants that are sources of air pollution in northeastern Colorado. They are required to operate in accordance with air permits issued by the Colorado Air and Pollution Control Division (Division). After the Division issued two compliance orders addressing the Companies’ alleged violations of their air permits, Companies sought timely administrative review from the Air Quality Control Commission (Commission), which operates pursuant to the Colorado Air Pollution Prevention and Control Act (APPCA). Following an evidentiary hearing, the Commission issued a final order affirming the Division’s orders.

Companies filed a motion to reconsider, which the Commission denied. Companies then filed a complaint in the district court 69 days after the Commission issued its final order and 35 days after the Commission denied its motion to reconsider. The Commission filed a motion to dismiss for lack of subject matter jurisdiction, arguing the complaint was untimely filed. The district court denied the motion. The district court, on the Commission’s request, certified for review the question whether the State Administrative Procedure Act (APA), the APPCA, and the Commission’s procedural rules, read together, compel the conclusion that the complaint was untimely filed, thus depriving the court of appeals of subject matter jurisdiction.

The court held that the district court erred in denying the motion to dismiss because Companies’ complaint was untimely. The party seeking judicial review must file a complaint within 35 days of the effective date of the Commission’s final order, even if that party first filed a motion to reconsider, and the Commission declined to reconsider its order. The plain language of the APPCA, the APA, and the Commission’s procedural rules required such a conclusion.

The order was reversed and the case was remanded for entry of an order dismissing the action.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statute of Limitations Had Not Run for Enforcing Fair Campaign Practices Act Judgment

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog, LLC v. Alliance for a Safe and Independent Woodmen Hills on Thursday, February 23, 2017.

Fair Campaign Practices Act—Campaign and Political Finance Amendment—Statute of Limitations.

The Alliance for a Safe and Independent Woodmen Hills (Alliance) was established to work for the common good and general welfare of the Woodmen Hills community. Before the 2014 Woodmen Hills Metropolitan District board of directors’ election, Alliance sent postcards and created Facebook posts directed at undermining the character of a board candidate. Campaign Integrity Watchdog, LLC (CIW) filed a complaint with the Secretary of State alleging a violation of § 9 of the Campaign and Political Finance Amendment, Colo. Const. Art. 28 (Amendment) and various violations of the Fair Campaign Practices Act (FCPA). The matter was referred to the Office of Administrative Courts. After a hearing, the administrative law judge (ALJ) found that the alliance was a “political committee” under the FCPA and it failed to register and file required reports as of the first day of the hearing, June 26, 2014. Thus Alliance violated the FCPA. The ALJ imposed a fine and ordered Alliance to register with the Secretary of State and file all required reports.

Alliance filed a motion to stay the decision, which was denied, and immediately thereafter filed a notice of appeal, which it then withdrew. About a year later, CIW filed a complaint in district court to enforce the ALJ’s decision. Alliance filed a CRCP 12(b)(5) motion to dismiss alleging the Amendment’s one-year statute of limitations barred CIW’s enforcement action. The district court dismissed the complaint, finding it time-barred under the Amendment.

On appeal, both parties agreed that the statute of limitations is triggered by the date of “violation” in § 9(2)(a) of the Amendment, but disagreed about what “violation” means. The Court of Appeals concluded that “violation” means the act(s) of breaking or dishonoring the FCPA or Amendment and therefore the statute of limitations began running the day following the last such act.

The Court then reviewed CIW’s complaint and concluded it could be read to allege a continuing violation of the Amendment, and the record does not show when or if the continuing violation ended. The complaint states a plausible claim of a continuing violation sufficient to withstand a Rule 12(b)(5) motion to dismiss based on the statute of limitations.

The order dismissing the complaint was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Top Ten Programs and Homestudies of 2016: Employment Law and Workers’ Compensation

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today we are featuring the Top Ten Programs and Homestudies in Employment Law and Workers’ Compensation. In addition to this sampling of programs and homestudies, CBA-CLE offers several other great books and programs for both employment law and workers’ compensation.

10. Non-compete Agreements, Confidentiality Agreements, and Other Restrictions on Employee Competition
When and how should restrictive covenants like non-compete agreements be used? Can they be enforced? How broad can they be? Should the employer try to enforce them? Is a non-solicit agreement subject to the same rules? Can you sue the new employer? Is there any way to protect the company from “raiding?’ Can I hire a person who has signed a non-compete? Can employees prepare to compete while they are still on my payroll? Are employees free to do what they want after they leave if they do not have a non-compete? Are customer lists trade secrets? Why do I need more than a confidentiality agreement? When is injunctive relief likely to be granted or rejected? What can I expect in non-compete trade secret litigation? These and many other questions are explored in this practical program for all those who draft, enforce or seek to avoid restrictive employment covenants. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits.

9. Workplace Discrimination
Join the debate Between the ACLU and Focus on the Family on the Intersection of Religious Freedom and Workplace Anti-Discrimination Laws; Federal Court Judge Christine Arguello WIll Moderate a Panel of State Court Judges from across Colorado Who Will Answer Your Questions Concerning How Individual Districts are Preparing for the Potential Increase of Employment Discrimination Case Filings; Be a Fly on the Wall: Find out What Goes on in the Other Room During a Mediation Moderated by Honorable Michael Hegarty, Magistrate Judge, United States District Court for the District of Colorado; and much more. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

8. Workers’ Compensation Basics: Learn How the System Works
Workers’ compensation is a highly specialized area of the law. It is full of detail and nuance that you have to be aware of if you want to be successful. If you would like to add this area to your practice, register for this program today, so you can lay the groundwork on foundational concepts like medical benefits, indemnity and compensability. Additionally, two judges’ panels and essential ethics rules in workers’ compensation arena are included. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

7. Workers’ Compensation Fall Update 2016
If you practice workers’ compensation law in Colorado, the CBA-CLE Workers’ Compensation Fall Update is the place to be. Register now so you can get the latest information from the Division and the Office of Administrative Courts. Get a thorough understanding of joint replacements, the DIME process, and unemployment insurance in the workers’ compensation context. Get the inside track on the Division’s website, and a tour of Medicaid in the workers’ compensation world. Finally, get a clear understanding of your ethical role when it comes to IMEs. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

6. Whistleblower Litigation, Discrimination, and the First Amendment: Employment Law Fall Update
Is sworn testimony outside of one’s ordinary job duties entitled to First Amendment protection? The United States Supreme Court decided this and related issues in Lane v. Franks, and the case will be discussed at the Fall Program. Federal and state whistleblower litigation has been in the headlines. Not only will a judge from the Merit Systems Protection Board be speaking on The Federal Whistleblower Protection Act, but a national panel will be gathered to discuss what employment lawyers need to know about state law qui tam claims. Also, as the American work force ages, never has the issue of age discrimination been more important. Get the most up-to-date information on the ADEA, and hear discussion on a changed discrimination doctrine for our changed social paradigm. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits.

5. The Amended Colorado Anti-Discrimination Act: Best Practices for Small Employers
The Colorado Anti-Discrimination Act (“CADA”) was recently amended to provide enhanced remedies for employees who experience discrimination. Unlike the federal anti-discrimination laws, CADA applies to employers of all sizes, including your firm. Do you know how to prevent and address complaints of discrimination within your firm? This program covers the scope of CADA including the administrative exhaustion process; defenses; and damages, and review best practices for all employers, both to prevent and address claims, including a discussion of real-life examples. Order the Video OnDemand here and the MP3 here. Available for 1 general credit.

4. Key Strategies for your Practice: Employment Law Fall Update
Your day begins with TWO tracks! One for attorneys who are new to the area of labor and employment, and one track if you have some experience under your belt. For the New Lawyer’s Track, learn what employment law state and federal statutes are key to your labor and employment law practice from two of the most experienced law professors in the State. Then enjoy a “how-to” workshop on client intake, complete with a YouTube video! On the Advanced Track, get up to speed on the aspects of representing clients in the marijuana industry: the ethics, the payroll, and other employment-related challenges. Finish the morning on the Advanced Track by discovering the nuances in the use of electronic evidence in an employment law case. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

3. Hot Topics in Employment Litigation: Managing High-profile Cases, Implicit Bias, and Other Issues
The practice of law has never been busier. Listen to Jay Tiftickjian’s insights to get some sanity from the myriad of demands that practicing law makes on us. One of these many demands is implicit bias in the courtroom and on your juries. Join the discussion on how to overcome these prejudices in your employment law cases. A highlight of the day will be the panel presentation on managing high-profile cases in the press! Join reporters from all of the major networks, who will give you the information you need to have when you get a case that’s in the news. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 2 ethics credits.

2. Staying Ahead of the Changes: Workers’ Compensation Spring Update 2016
The Planning Committee has been bringing you incomparable CLE programs, and the 2016 Spring Update does not disappoint. As always, get an up-to-the-minute Case Law Update. There is always something new to know about Medicare Set-Asides, so this topic is included on the agenda. Have you ever wondered why the Division of Workers’ Compensation does certain things? Get a glimpse behind the curtain! Then tune in for changes to Rule 9 from the perspectives of the claimant, the respondents and the bench. The all-important medical topic for the Spring Update is about the changes to the upper and lower extremity medical treatment guidelines. Finally, the head of the Office of Attorney Regulation talks about a possible new model of self-regulation in Colorado. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 6 general credits, including 1 ethics credit.

1. Proactively Prepare for What Lies Ahead: Employment Law Conference 2016
Whether you practice from the plaintiff or defense perspective… Are a solo practitioner or are a member of a large firm… Whether you are new to employment law or a seasoned professional… Choose the Litigation Track, the Counseling Track, or a combination of the two… Your experienced and knowledgeable faculty will give you balanced and comprehensive reviews of cutting-edge topics, regulations, and the most recent cases for you and your clients. Order the CD homestudy here and the MP3 here. Available for 17 general credits, including 1 ethics credit.

Colorado Court of Appeals: Exhaustion of Administrative Remedies Required but Dismissal With Prejudice was in Error

The Colorado Court of Appeals issued its opinion in Grant Brothers Ranch, LLC v. Antero Resources Piceance Corp. on Thursday, December 1, 2016.

Subject Matter Jurisdiction—Summary Judgment—Exhaustion of Administrative Remedies—Dismissal Without Prejudice.

Antero Resources Piceance Corporation (Antero), an oil and gas exploration and production company, received approval from the Colorado Oil and Gas Conservation Commission (the Commission) to establish a drilling and spacing unit to produce oil and gas. Antero wanted to produce oil and gas underlying Grant Brothers Ranch, LLC’s (Grant Brothers) property, which was within the unit, but Grant Brothers refused Antero’s offer to lease the minerals or participate in their production. Antero then requested that the Commission pool all nonconsenting interests in the unit and allow Antero to produce and sell the oil and gas of the nonconsenting owners. Following a hearing, the Commission granted the request. A year and a half later, to produce from a deeper formation, Antero sought to establish a new unit within the same lands. Again, Antero asked Grant Brothers to participate in their production, and Grant Brothers refused. Following objection by Grant Brothers and a hearing, the Commission granted this request and issued an order pooling all nonconsenting interests in the second unit. Pursuant to these pooling orders, Grant Brothers was entitled to receive its interest in the proceeds from the production and sale of oil and gas from wells in the units after the wells reached “payout.” Antero was required to furnish Grant Brothers monthly statements concerning its costs and proceeds.

Three years after the second order, Grant Brothers asked Antero for permission to audit its books and records regarding the wells. Antero refused, stating it had been sending Grant Brothers the required monthly statements.

Two years later, Grant Brothers sued Antero and Ursa Operating Company, LLC (which assumed operation of the wells in 2012) (Operators), requesting an equitable accounting and alleging the wells had reached payout, but Operators had not paid Grant Brothers. Operators filed a motion for summary judgment arguing that Grant Brothers had not exhausted its administrative remedies under the Oil and Gas Conservation Act (the Act) and therefore the district court lacked subject matter jurisdiction. The court agreed and dismissed the action with prejudice.

On appeal, Grant Brothers argued that the district court improperly granted summary judgment because Grant Brothers was not required under the Act to exhaust its administrative remedies. The Colorado Court of Appeals noted that because the district court had not resolved a number of factual disputes and resolved Antero’s motion solely on the basis that the court lacked subject matter jurisdiction, the summary judgment motion was more properly characterized as a motion to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1) and it therefore treated it as such.

The Act gives the Commission a broad grant of jurisdiction over operations for the production of oil and gas, including payment disputes, unless such dispute is one over interpretation of a payment contract, which would be resolved by a district court. In determining whether a court has subject matter jurisdiction where a party did not exhaust administrative remedies, courts examine whether (1) the claim was filed pursuant to the relevant statute, (2) the statute provides a remedy for the claim asserted, and (3) the legislature intended the statute to provide a “comprehensive scheme” addressing the issues underlying the claim.

First, Grant Brothers’ claim was one for payment of proceeds under C.R.S. §§ 34-60-116 and -118.5. Grant Brothers is entitled to receive payment only if and when payout occurs. Primary jurisdiction to make this determination rests with the Commission. Second, because there was no contract between the parties, Grant Brothers needed to first submit a written request for payment. If there is a payment dispute, Grant Brothers may request a hearing before the Commission, whose order would then be appealable to the courts. Third, the Act’s language and structure indicate that a proceeding before the Commission is the primary remedy for nonconsenting owners’ claims for the payment of proceeds when there is no contract between the parties. Grant Brothers was required to exhaust its administrative remedies and because it did not do so prior to filing suit in the district court, the court properly dismissed the action.

Grant Brothers also contended that the district court erred in dismissing its claim with prejudice solely on the basis that the court lacked subject matter jurisdiction. A dismissal under C.R.C.P. 12(b)(1) does not adjudicate the merits, but results from the court lacking the power to hear the claims asserted. Thus the dismissal is necessarily without prejudice.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Parties Should Assume Finality in Face of Agency Ambiguity and File Protective Appeal

The Tenth Circuit Court of Appeals issued its opinion in Tulsa Airports Improvement Trust v. Federal Aviation Administration on Friday, October 14, 2016.

Tulsa Airports Improvement Trust (TAIT) has been working to reduce noise from the Tulsa airport through grants from the Federal Aviation Administration (FAA). In 2002, while waiting for some FAA grants to go through, TAIT instructed its contractors to place projects on hold. As a result, some contractors terminated their contracts or demanded increases, causing TAIT to pay them approximately $700,000. TAIT sought reimbursement from the FAA. The FAA initially reimbursed TAIT, but then demanded repayment of approximately $656,000, finding the costs were not allowable under the grants. TAIT repaid the FAA, but in 2010, TAIT sought reconsideration, and the FAA provided reimbursement for approximately $559,000.

In October 2012, TAIT informed the FAA that it had reviewed the remaining unpaid expenses and had found several categories that it believed were eligible for reimbursement. The FAA responded on October 24, 2012, that it had reviewed the information and could not make a favorable determination. TAIT appealed to the FAA’s Associate Administrator for Airports on December 6, 2012, and on December 31, 2012, the FAA issued a letter stating that the FAA was unable to find potentially eligible costs that had not been reimbursed, and stating that TAIT should submit any further information to the FAA. TAIT did not respond to the letter.

On November 14, 2013, TAIT filed a breach of contract action in the Court of Federal Claims, invoking jurisdiction under the Tucker Act and arguing that the FAA had wrongfully determined the payments in question were not allowable grant costs. The Court of Federal Claims found that it did not have subject matter jurisdiction because 49 U.S.C. § 46110 or 49 U.S.C. § 47111 vested exclusive jurisdiction in the United States Court of Appeals, and transferred the case to the Tenth Circuit. The Tenth Circuit considered it a petition for review of agency action.

The Tenth Circuit concluded that § 47111 did not apply, because it only applies to the withholding of payments that are determined to be allowable. Since the payments in question were never determined to be allowable, § 46110 governed review. The Tenth Circuit next found that the December 31, 2012, letter from the FAA was a final order. The letter constituted a final determination that the costs were not allowable, and although the FAA invited TAIT to submit further information for review, that did not affect the finality of the letter.

The Tenth Circuit then concluded that TAIT’s appeal was not timely filed. TAIT had sixty days to file an appeal, but did not do so until eight months after the expiration of the statutory period. TAIT did not offer any reasonable grounds to justify its delay. The Tenth Circuit noted that agency-created confusion had been recognized in some circuits as a basis for justifying delay, but in this case there was no agency-created confusion. The Tenth Circuit agreed with the D.C. Circuit that parties should assume finality in the face of ambiguity and file protectively for review.

The Tenth Circuit dismissed the appeal as not timely filed.

Colorado Supreme Court: Condemnation Decision Must Consider Each Landowner’s Taken Land and Damages

The Colorado Supreme Court issued its opinion in Department of Transportation v. Amerco Real Estate Co. on Monday, September 26, 2016.

Administrative Law and Procedure—Delegation of Authority—Condemnation Proceedings.

Amerco Real Estate Co. (Amerco) and U-Haul petitioned for relief pursuant to CAR 21 from an order of the district court denying their request to dismiss the Colorado transportation department’s Petition in Condemnation and instead granting the department’s motion for immediate possession of the subject property, which is owned by Amerco and occupied by U-Haul. The district court rejected U-Haul’s assertion that the transportation commission’s authorization for the department to condemn property for highway purposes, in the absence of any resolution by the commission approving the acquisition of the particular property to be taken, at a public meeting, amounted to an unlawful delegation of quasi-legislative power. The Supreme Court issued its rule to show cause and here made the rule absolute, remanding to the district court with orders to dismiss the department’s Petition in Condemnation. The Court held that because the commission’s enabling legislation contemplates that it alone must decide whether the public interest or convenience will be served by a proposed alteration of a state highway, and that decision must be made in consideration of, among other things, the portions of land of each landowner to be taken for that purpose and an estimate of the damages and benefits accruing to each landowner whose land may be affected thereby, the commission’s general authorization, to the extent it purports to delegate to the department the choice of particular properties to be taken for such a highway project and the manner of their taking, constituted an unlawful delegation of its statutorily imposed obligation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: License Suspension Arbitrary and Capricious Due to Lack of Standards

The Colorado Court of Appeals issued its opinion in Farmer v. Colorado Parks & Wildlife Commission on Thursday, August 25, 2016.

Big Game Hunter—Suspension of Wildlife License—Colorado Parks and Wildlife Commission—Agency Standards—Arbitrary and Capricious.

Farmer is a big game hunter and guide. After allowing his Colorado outfitter’s license to lapse, Farmer was charged with six counts of illegal sale of big game wildlife for outfitting mountain lion hunts without the proper license. Farmer pleaded guilty to one count. Pursuant to CRS § 33-6-113(2)(a), his guilty plea triggered an administrative hearing by the Colorado Parks and Wildlife Commission (Commission) to determine whether to suspend Farmer’s wildlife license privileges. After a hearing, Farmer’s hunting license was suspended for 20 years. Farmer initiated this action for review of the Commission’s decision, and the district court affirmed.

On appeal, Farmer contended that he was deprived of due process because neither CRS §§ 33-6-106 and -113 nor any applicable regulations contain sufficient standards to constrain the Commission’s discretion in determining the length of his suspension. CRS § 33-6-113(2)(a) merely provides that, upon conviction for the illegal sale of big game, the Commission may suspend “any or all wildlife license privileges of the person for a minimum of one year to life.” Because neither the statute nor any applicable regulations provide sufficient standards to guide the Commission’s suspension decision, its action in suspending Farmer’s license was arbitrary and capricious.

The district court’s order was reversed and Farmer’s suspension was vacated. Because remanding to the hearing officer would not provide Farmer a complete remedy for the arbitrary and capricious suspension of his license under defective procedures, the Court of Appeals declined to remand for a new hearing.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Refusal to Operate Vehicle in Manner Directed by Supervisor Qualifies as Refusal to Operate

The Tenth Circuit Court of Appeals issued its opinion in TransAm Trucking, Inc. v. Administrative Review Board on Monday, August 8, 2016.

Alphonse Maddin was driving a tractor-trailer for TransAm in sub-zero temperatures on I-88 in Illinois. He could not find the TransAm-approved gas station and his truck’s fuel meter was below E, so he pulled to the side of the highway. When he tried to pull back onto the road about 10 minutes later, he discovered his brakes were frozen and had locked up. He radioed TransAm’s road assist department and was advised that a repairperson would be sent to his location. He then discovered that his bunk heater was not working and there was no heat in the cab of the truck. He fell asleep while waiting for the repair person.

Approximately two hours later, Maddin’s cousin called him and woke him up. According to the cousin, Maddin’s speech was slurred and he sounded confused. When Maddin sat up, he realized his torso was numb and he could not feel his feet. He called road assist again to report that his bunk heater was not working, telling the dispatcher about his physical condition. The road assist dispatcher told him to stay where he was. About thirty minutes later, Maddin became concerned about continuing to wait in the freezing temperatures with no heat. He unhitched the trailer from the truck, pulled a few feet away, and called his supervisor, Larry Cluck, telling him he couldn’t feel his feet and was having trouble breathing because of the cold. Cluck told him not to abandon the trailer. Cluck advised Maddin that he could either drive off with the trailer or stay there and wait for the repairperson. Maddin drove off without the trailer. About 15 minutes later, the repairperson showed up and Maddin drove back to the trailer. When the truck was repaired, Maddin called Cluck for directions to the fuel stop. Cluck threatened to write Maddin up for missing his fuel stop or a late load. Later, Cluck informed Maddin that he was being written up for abandoning his trailer. He was terminated less than a week later for violating company policy by abandoning his load.

Maddin filed a complaint with OSHA, asserting TransAm violated the whistleblower provisions of the Surface Transportation Assistance Act (STAA) when it terminated him. After OSHA dismissed his complaint, Maddin requested a hearing with a Department of Labor ALJ. The ALJ concluded Maddin engaged in protected activity when he reported his defective vehicle to TransAm and again when he refused to obey Cluck’s order to either drive the defective vehicle or stay put. The ALJ found that the protected activity was inextricably intertwined with TransAm’s decision to terminate Maddin, and eventually awarded back pay from the date of discharge to the date of reinstatement, including a per diem allowance provided by TransAm. TransAm appealed the ALJ’s decision to the Administrative Review Board (ARB), which upheld the ALJ’s findings and backpay award. TransAm filed a petition for review in the Tenth Circuit.

TransAm first argued that frozen brakes are not the type of vehicle complaint contemplated by the STAA. The Tenth Circuit declined to resolve the question because the ARB’s decision could be affirmed under another aspect of the STAA also relied on by the ARB. The alternative provision makes it unlawful for an employer to discharge an employee who refuses to operate a vehicle due to safety concerns. TransAm argued that Maddin did not refuse to operate the vehicle since he drove away. The Tenth Circuit applied Chevron deference to the agency’s interpretation of the word “operate,” and found no authority to support that Congress intended to limit the word “operate” solely to driving. The ARB interpreted “operate” to encompass situations in which an employee refused to use a vehicle in the manner directed by the employer, and the Tenth Circuit majority approved of this definition. TransAm argued it would have been impossible for Maddin to drive off while the trailer’s brakes were frozen, so his refusal to drag the trailer could not have contributed to his termination because he could not “defy the laws of physics,” therefore it was not protected activity. The Tenth Circuit majority disagreed. The Tenth Circuit found ample evidence supporting the ARB’s causation finding.

TransAm also raised three challenges to the backpay award. First, it contended that the per diem allowances should not have been included, but the ARB found that because the allowances were paid whenever Maddin drove for TransAm and did not appear to be intended to offset expenses, they were properly included as lost earnings. TransAm argued that the per diems were intended to reimburse Maddin for expenses, but no record evidence supported its assertion. TransAm also challenged the ARB’s refusal to offset the backpay award for earnings from 2010 to 2012, arguing no evidence supported the ALJ’s finding that the income was less than Maddin’s incurred business expenses. The Tenth Circuit, however, noted that the ARB specifically referenced Maddin’s IRS tax records and a personal statement, both of which supported the ALJ’s finding. The Tenth Circuit also rejected TransAm’s argument that Maddin was not entitled to backpay with interest for the entire period between his termination and reinstatement, finding TransAm’s statements conclusory, self-serving, and unsupported.

The Tenth Circuit denied TransAm’s petition for review. Judge Gorsuch dissented; he would not have applied Chevron and instead would have relied on the dictionary definition of “operate” in determining whether Maddin operated the vehicle in defiance of his supervisor’s orders.