July 2, 2015

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

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

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

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

 

First Bill Signed by Governor Enacts C.R.S. as Colorado Statutory Law

On Tuesday, February 11, 2014, Governor Hickenlooper signed into law the first bill of the 2014 Legislative Session. HB 14-1019 – Concerning the Enactment of Colorado Revised Statutes 2013 as the Positive and Statutory Law of the State of Colorado, introduced by Rep. Bob Gardner and Sen. Pat Steadman, amends C.R.S. § 2-5-126 by specifying that the 2013 Colorado Revised Statutes are the state’s official statutory law.

Governor Hickenlooper’s 2014 legislative decisions will be listed here as the bills are signed.

 

Colorado Supreme Court: Grandparents and Relatives Allowed to Intervene in D&N Action Without 3-Month Time-Period Limitation

The Colorado Supreme Court issued its opinion in People in Interest of O.C. on Monday, September 9, 2013.

Dependency and Neglect—CRS § 19-3-507(5)(a).

In this dependency and neglect case, the Supreme Court held that CRS § 19-3-507(5)(a) permits parents, grandparents, and relatives to intervene as a matter of right. The Court further held that the statute’s three-month requirement does not apply to parents, grandparents, or relatives. The Court therefore affirmed the judgment of the court of appeals.

Summary and full case available here.

HB 13-1300: The Revisor’s Bill – Amending or Repealing Obsolete, Conflicting, or Inconsistent Laws

On April 10, 2013, Rep. Bob Gardner and Sen. John Morse introduced HB 13-1300 – Concerning Nonsubstantive Revisions of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Inconsistent, and Conflicting Provisions of Law and Clarifying the Language to Reflect the Legislative Intent of the Laws.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Committee on Legal Services—Revisor’s Bill

This bill amends or repeals various statutory provisions that are obsolete, inconsistent, or in conflict with other law, clarifies the language to more accurately reflect the legislative intent of the laws, and reconstructs provisions to follow standard drafting format. The specific reasons for each amendment or repeal are set forth in the appendix to this bill.

The amendments made by this bill are nonsubstantive in nature and, as such, are not intended to change the meaning or intent of the statutes, as amended.

The bill was introduced on April 10 and was assigned to the Judiciary Committee. The bill is scheduled for committee review on April 23 at 1:30 p.m.

Since this summary, the bill was amended in the Judiciary Committee and sent to the House Committee of the Whole for consideration on Second Reading.

Governor Hickenlooper Signs Several Bills Into Law

Governor Hickenlooper signed the first bills of the 2013 legislative session on January 31, 2013. Since then, he has signed an additional 116 bills, for a total of 118 bills.

On March 22, 2013, Governor Hickenlooper signed 29 bills. Five of them are summarized here.

  • HB 13-1126 – Concerning Statutorily Established Time Intervals, by Rep. Jared Wright and Sen. Irene Aguilar. The bill continues amending statutes in order to comply with “rule of seven” date calculations.
  • HB 13-1166 – Concerning the Repeal of Certain Crimes that Include Marital Status as an Element of the Crime, by Rep. Elena Kagan and Sen. Pat Steadman. The bill repeals the crimes of adultery and promoting sexual immorality.
  • SB 13-012 – Concerning Reporting of Suspected Child Abuse and Neglect by Youth Sports Organizations, by Sen. Rollie Heath and Rep. Jonathan Singer. The bill mandates that coaches, directors, and athletic personnel for youth sports organizations report suspected child abuse and neglect.
  • SB 13-078 – Concerning Points of Diversion that are Not Located at the Physical Location Specified in the Decrees for Diverted Water Rights, by Sen. Angela Giron and Rep. Jerry Sonnenberg. The bill allows owners of water rights to correct established but erroneously recorded points of diversion without having to apply for a change in water right.
  • SB 13-118 – Concerning Clarification of the Exemptions from the Laws Regulating Mortgage Loan Originators, and, in Connection Therewith, Exempting Real Estate Licensees Representing Persons Providing Seller Financing for the Sale of a Limited Number of Residential Properties Annually as Allowed by Law, by Sen. Mary Hodge and Rep. Dan Pabon. The bill allows a private property owner to provide seller financing to up to five properties without needing to fulfill licensing and registration requirements of mortgage brokers.

Governor Hickenlooper signed 12 bills into law on March 29, 2013. Four of them are summarized here.

  • HB 13-1016 – Concerning the Distribution to Beneficiaries of Amounts on Payable-on-Death (POD) Financial Institution Accounts Pursuant to Written Designation in the Records of the Financial Institution, by Rep. Bob Gardner and Sen. Cheri Jahn. The bill  specifies that funds held in a payable-on-death account may be distributed in an unequal manner if such intent is clearly written in the records of the financial institution.
  • HB 13-1168 – Concerning an Expansion in the Ability of a Ditch to Operate as an Acequia Ditch, by Rep. Edward Vigil and Sen. Gail Schwartz. The bill allows acequia ditch corporations to operate on properties other than long lots.
  • SB 13-008 – Concerning Elimination of the Waiting Period for Children’s Eligibility Under the Children’s Basic Health Plan, by Sen. Linda Newell and Rep. Beth McCann. The bill removes the waiting period for CHP+ health insurance, in hopes that removing the waiting period will encourage people to leave group plans and join CHP+.
  • SB 13-177 – Concerning Changes to the Juvenile Corrections Programs Resulting in Cost Reductions and Reducing the Juvenile Detention Bed Cap, Reducing the Appropriation for Commitment Beds and Assessment Services, and Making an Appropriation for Transportation, by the Joint Budget Committee. The bill reduces the maximum number of beds available in the Division of Youth Corrections due to a decreased number of youth offenders.

Finally, Governor Hickenlooper signed one bill on April 1, 2013. It is summarized here.

  • SB 13-194 – Concerning a Repeal of a Telephone Assistance Program for Low-Income Individuals and Reducing an Appropriation, by Sen. Pat Steadman and Rep. Cheri Gerou. The bill repeals the Low-Income Telephone Assistance Program.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

Colorado Court of Appeals: Plain Language of Statute Requires Sex Offender Registration to Continue for 10 Years After Final Release

The Colorado Court of Appeals issued its opinion in People v. Sheth on Thursday, March 14, 2013.

Declaratory Judgment—Sex Offender Registration—CRS § 16-22-113.

In this declaratory judgment action, petitioner Parag Sheth appealed the district court’s judgment denying his request for equitable relief to discontinue the requirement that he register as a sex offender. The judgment was affirmed.

In 2008, petitioner pleaded guilty to criminal attempt to commit Internet sexual exploitation of a child, a class 5 felony. He was sentenced to thirty-six months’ probation, which included a number of conditions, such as undergoing sex offender treatment and refraining from all contact with minors. He also was required to register as a sex offender under the Colorado Sex Offender Registration Act (Act). In 2011, the district court reduced petitioner’s probationary sentence to two years, and his probation ended as a matter of law on that date.

Petitioner filed a CRCP 57 action seeking a declaratory judgment determining that his registration duties terminated when his probation terminated. The district court concluded that CRS § 16-22-113 was the relevant statutory section and that it requires a person to wait ten years after final release from the jurisdiction of the court for the offense triggering the registration duties before petitioning the court for termination of those duties.

On appeal, petitioner argued that the sentencing court has discretion to set the length of time that the petitioner is required to register, pursuant to its sentencing authority. The Court of Appeals disagreed, finding that the language of CRS § 16-22-113 is unambiguous and there are no exceptions to the waiting period.

Summary and full case available here.

The Intersection of Lawful Off-Duty Activities and Employment Discrimination

A few years ago, the national and local news ran a story about a man who was employed by a company that distributes Budweiser beer and was fired for drinking a Coors (click here for the Denver Post story). The man said that the company president’s son-in-law saw him sipping the Coors, and he was terminated two days later.

We know there are two sides to every story, and the article focused on the man’s story, not the employer’s. However, if what the man said was true, the employer violated the Lawful Activities Statute, C.R.S. § 24-34-402.5. This statute provides “It shall be a discriminatory or unfair practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours. . . .” The statute applies only to employees, not job applications.

The statute enumerates three exceptions to this rule, if the conduct: (1) relates to a bona fide occupational requirement; (2) creates a conflict of interest; and (3) is rationally related to the employment activities.

In the beer case, the employer claimed that the employee’s activity fell under all three exceptions–the employer stated that the employee was terminated to avoid a conflict of interest, and that his conduct was rationally related to a bona fide occupational requirement.

The beer case never went to trial, but the issue is not uncommon in employment disputes. Very few cases have interpreted the statute, however; Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997) provides most of the guidance on the issue.

To learn more about the intersection of lawful off-duty activities and employment discrimination, don’t miss CBA-CLE’s Employment Law Conference April 4 and 5 at the Denver Marriott City Center. Click the links below to register online or call (303) 860-0608.

CLE Program: 2013 Employment Law Conference

This CLE presentation will take place on Thursday and Friday, April 4 and 5, 2013, at the Denver Marriott City Center. Click here to register for the live program.

Can’t make the live program? Click here to order the homestudy.

Governor Hickenlooper Signs Several Bills Into Law

Governor Hickenlooper continues to sign bills into law as they make it through the House and Senate. To date, he has signed 46 bills into law since January 31, 2013. Most recently, he signed 15 bills on March 8, 2013. Five of these bills are summarized here.

The governor also signed four bills on February 27, 2013, which are summarized here.

Prior to this, the governor signed 23 Joint Budget Committee bills and two other bills on February 19, 2013.

For a complete list of the governor’s legislative decisions to date, click here.

Colorado Supreme Court: Juvenile Justice System is Separate Statutory Framework from Adult Criminal Justice System and Provisions Are Not Interchangeable

The Colorado Supreme Court issued its opinion in In re People in the Interest of W.P. on Monday, February 11, 2013.

Competency to Proceed in the Juvenile Justice System—Availability of Second Competency Evaluation as of Right—Indigent Alleged Juvenile Offender—Rule Discharged.

In this original proceeding, the Supreme Court considered whether an indigent alleged juvenile offender was entitled as of right to a second competency evaluation at state expense. Two days after W.P.’s arrest on allegations of sexual assault on a child, and one day after the juvenile division of the Adams County District Court appointed a public defender to represent him, the court ordered W.P. to undergo a competency evaluation at state expense. After receiving the evaluation report, the court made a preliminary finding that W.P. was competent to proceed in the case. Citing ongoing concerns about her client’s mental health, the public defender objected, requesting a competency hearing pursuant to CRS § 19-2-1302(2) of the Colorado Children’s Code and filing a motion for a second competency evaluation at state expense pursuant to CRS §§ 16-8.5-106 and -107 of the Colorado Code of Criminal Procedure. At the motion hearing, the public defender stated that “[b]ecause the juvenile code is silent, they are referring to the adult code,” which entitles a criminal defendant to a second competency evaluation at state expense. Concluding that the Children’s Code was “specifically silent on that issue,” the district court determined that the adult competency provisions did not apply to this case.

The Court held that the district court did not abuse its discretion when it denied the public defender’s request for a second competency evaluation pursuant to CRS §§ 16-8.5-106 and -107, because these adult competency provisions do not apply in juvenile justice proceedings either explicitly or by implication. The Court concluded the General Assembly created two distinct competency frameworks: (1) promoting the criminal justice system’s goal of just punishment; and (2) advancing the juvenile justice system’s goal of appropriately sanctioning juvenile offenders, taking into consideration their own and society’s best interests. The juvenile competency provisions require a court to order an evaluation at any stage of the proceedings if it develops doubts about the alleged juvenile offender’s competency that are not satisfied by available information. The Court discharged the rule and returned the case to the district court for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Plain Meaning of C.R.S. § 12-47.1-521 Gives Court of Appeals Exclusive Jurisdiction to Review Rule-Making Actions of Gaming Commission

The Colorado Court of Appeals issued its opinion in Board of County Commissioners of Gilpin County v. City of Blackhawk on Thursday, October 11, 2012.

Subject Matter Jurisdiction—Rule-Making Proceeding—CRS § 12-47.1-521.

Plaintiffs, the Board of County Commissioners of Gilpin County, Forrest Whitman, Bruce Schmalz, and Connie McLain (collectively, Gilpin County) and defendant, the City of Black Hawk (Black Hawk), appealed the district court’s order dismissing their claims against defendants, the Colorado Limited Gaming Control Commission (Commission), the Colorado Division of Gaming (Division of Gaming), Colorado State Treasurer Walker Stapleton, the Board of County Commissioners of Teller County (Teller County), the City of Cripple Creek (Cripple Creek), and the City of Central (Central), for lack of subject matter jurisdiction pursuant to CRCP 12(b)(1). The order was affirmed.

This case arose from a rule-making proceeding before the Commission. The proceeding addressed the interpretation of the phrase “gaming revenue” as used in the Colorado Constitution.

At a Commission hearing, the Division of Gaming proposed an amendment to the Commission’s Rule 24 that reflected its interpretation of “gaming revenue” and, in response, Gilpin County proposed its own amendment. The Commission adopted the Division of Gaming’s amendment.

Gilpin County then filed a complaint against defendants, seeking judicial review of the Commission’s rule-making proceeding. Defendants, excluding Black Hawk, filed a motion to dismiss for lack of subject matter jurisdiction under CRCP 12(b)(1), which was granted by the district court.

On appeal, Gilpin County argued that CRS § 12-47.1-521 does not give the Court of Appeals exclusive jurisdiction to review the rule-making actions of the Commission. The Court, relying on the plain meaning of the statute, held that it does. Therefore, the district court was correct that it lacked jurisdiction to review the Commission’s rule-making actions.

The Court also considered whether Gilpin County and Black Hawk had claims for declaratory relief under CRCP 57, because review under CRS §§ 12-47.1-521 and 24-4.106 do not provide adequate relief for their constitutional challenges to the Commission’s rule-making actions. The Court held they do not have claims for declaratory relief because the statutory sections provide adequate relief in these circumstances. Here, adequate relief was provided because Gilpin County and Black Hawk were parties to the rule-making proceeding. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. § 18-3-203(1)(f) Does Not Require Consecutive Sentencing but Court has Discretion to Sentence Consecutively

The Colorado Court of Appeals issued its opinion in People v. Diaz on September 27, 2012.

Assault—Consecutive Sentencing—CRS § 18-3-203(1)(f).

Defendant appealed the sentence entered on a jury verdict finding him guilty of second-degree assault. The sentence was vacated and the case was remanded to the district court for resentencing.

While serving a sentence on other charges, defendant punched a prison guard in the eye. On a second occasion, he threw a cup that hit a guard in the mouth. The second assault was tried first. Defendant was found guilty, and he was sentenced to ten years in the custody of the Department of Corrections. The next day, defendant was found guilty of the first assault, and he was sentenced to ten years in prison, to be served consecutively to the sentence imposed for the second assault.

On appeal, defendant contended that the district court erred by ruling that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. CRS § 18-3- 203(1)(f) requires consecutive sentencing only when a defendant is serving a sentence (and not merely confined on unresolved charges) at the time of the assault. Therefore, the district court erred in ruling that the sentence for the first assault must run consecutively to the sentence for the second assault. Nonetheless, the court had discretion to order the sentence for the first assault to run consecutively to the sentence for the second assault. On remand, the court must exercise its discretion in determining whether the sentence for the first assault should be served consecutively to the sentence for the second assault.

Summary and full case available here.

Colorado Court of Appeals: Secretary of State Exceeded Rulemaking Authority by Promulgating Rules that Modify or Contravene Statutory or Constitutional Provisions

The Colorado Court of Appeals issued its opinion in Colorado Common Cause v. Gessler, Secretary of State on August 30, 2012.

Rulemaking Authority—Campaign Finance Laws.

This case arose out of a challenge to the Colorado Secretary of State’s (Secretary) rulemaking authority brought by plaintiffs, Colorado Common Cause and Colorado Ethics Watch, pursuant to CRS § 24-4-106. The Secretary appealed the trial court’s order finding he exceeded his rulemaking authority in promulgating Rule 4.27. [Rule 4.27 has since been renumbered as Rule 4.1, 8 Code Colo. Regs. 1505–6.] The order was affirmed.

In 2002, Colorado voters adopted the Campaign and Political Finance Amendment (Amendment), which sets forth specific disclosure requirements that apply to various categories of participants in the elections process. The Amendment also regulates “issue committees” that advocate for or against ballot issues or questions. The Amendment incorporates the registration and disclosure requirements set forth in the Fair Campaign Practices Act (Act). In November 2010, a panel of the Tenth Circuit held in Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), that the financial burden of complying with the registration and reporting requirements for issue committees was substantial and the public interest in such information was minimal.

In response to Sampson, the Secretary commenced a rulemaking process to implement the decision. As part of this process, the Secretary published proposed Rule 4.27, which ultimately was adopted.Rule 4.27 states that “[a]n issue committee shall not be subject to any of the requirements of [the Amendment] or [the Act] until the issue committee has accepted $5,000 or more in contributions or made expenditures of $5,000 or more during an election cycle.” The contributions and expenditure made before reaching this threshold are not required to be reported.

Plaintiffs sued under CRS § 24-4-106. The trial court held that the Secretary had exceeded his rulemaking authority and dismissed the Secretary’s counterclaim for a declaration that the definition of issues committee is unenforceable until such a rule is adopted.

The Court of Appeals noted that an agency does not have authority to promulgate rules that modify or contravene statutory or constitutional provisions. Rule 4.27 creates a contribution and expenditure threshold of $5,000 that triggers an issue committee’s duty to register and disclose. The Act establishes a threshold of $200. On its face, Rule 4.27 conflicts with the clear requirements of Colorado law. Thus, unless Sampson abrogated the $200 threshold, the Secretary lacked the authority to promulgate the rule. The Secretary argued Sampson did just that. The Court disagreed.

The Tenth Circuit declined to address the facial challenge to Colorado’s campaign finance laws, holding only that the application of those laws under the specific facts of Sampson unconstitutionally burdened their freedom of association. The Circuit specifically acknowledged that Colorado campaign finance laws may be constitutionally applied outside of the context presented in Sampson. Consequently, Rule 4.27 sweeps far too broadly. The rule was set aside as void and the order was affirmed.

Summary and full case available here.