April 29, 2016

Tenth Circuit: Government Lacks Authority to Garnish Retirement Accounts When Restitution Paid According to Schedule

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez on Wednesday, December 16, 2015.

Toby Martinez was convicted of mail fraud and conspiracy and was ordered to pay roughly $2.7 million in restitution. The district court ordered that he was to pay the restitution through monthly payments of a percentage of his net disposable income. Upon leaving prison, Martinez was unable to obtain steady employment, and as a result owed relatively little through his court-ordered payment schedule. The government served writs of garnishment for two of Martinez’s retirement accounts, which were worth roughly $470,000 together. Martinez moved to quash the writs of garnishment in district court, but the court denied his motion. Martinez appealed, asking the court to consider whether the government can garnish assets beyond the amount currently due under the court-ordered payment plan. The Tenth Circuit determined it could not.

The Tenth Circuit began by analyzing 18 U.S.C. §§ 3613 and 3664, which allow the government to enforce orders of restitution as if they were liens or judgments in favor of the United States. The Tenth Circuit rejected the government’s argument that it could garnish the entire restitution amount, noting the argument incorrectly assumed the entire restitution amount was currently owed. The Tenth Circuit found that by statute, the district court—not the government—had the ability to determine how a defendant is to pay restitution. It is the government’s job to enforce the district court’s order. The Tenth Circuit analyzed whether Martinez owed the full restitution amount immediately or whether he owed only the installment payments until the full amount was paid. Analyzing the district court’s restitution order, the Circuit found that the district court ordered that Martinez owed only the installment payments. The Tenth Circuit noted that the full amount of restitution is owed only immediately only if the restitution order does not provide for installment payments. The Tenth Circuit also cautioned that the government’s position conflicts with the statutory directive to the district court to impose a payment schedule that reflects the defendant’s financial condition.

The Tenth Circuit reversed and remanded with instructions for the district court to grant Martinez’s motion to quash.

Tenth Circuit: Conviction for Robbery under California Penal Code Qualifies as Crime of Violence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Castillo on Tuesday, December 15, 2015.

Wilber Castillo was convicted in California in 2004 of second-degree robbery, and was removed from the United States in 2007. In 2009, he reentered the United States without inspection. In 2011, he was convicted of shoplifting and in 2014 he was convicted of disorderly conduct. He was interviewed by ICE after his 2014 arrest, and based on his admission, Castillo was charged with illegal reentry under 18 U.S.C. § 1326. The base offense level for illegal reentry is 8 but because of his 2004 conviction for robbery, which is classified as a crime of violence, his total offense level was 24, resulting in a Guidelines range of 46-57 months’ imprisonment. Castillo objected to the application of the crime of violence enhancer. The district court ruled Castillo’s prior conviction was a crime of violence and the offense level was correct, but nevertheless varied downward and sentenced Castillo to 24 months’ imprisonment. Castillo appealed.

The Tenth Circuit examined California Penal Code § 211 to determine whether a conviction under that section qualifies as a crime of violence for purposes of Guidelines § 2L1.2. Castillo argued that because § 211 considers threats to property as crimes of violence, it does not substantially correspond with the generic definition of robbery. The government conceded that including threats to property is a minority position, but argued that the crimes covered by § 211 outside the generic definition of robbery fell within the generic definition of extortion, which is also considered a crime of violence. The Tenth Circuit agreed.  Following the Ninth Circuit’s reasoning in another case that evaluated whether a conviction under § 211 qualified as a crime of violence, the Tenth Circuit found that because the elements of § 211 that do not correspond to the generic definition of robbery are encompassed in the generic definition of extortion, and both crimes are considered crimes of violence, the sentencing enhancer applied.

The Tenth Circuit affirmed the district court.

Bills Implementing “SAFE Act,” Allowing Issuance of Summonses in Lieu of Warrants, and More Signed

On Thursday, April 21, and Friday, April 22, 2016, Governor Hickenlooper signed more bills into law. He signed 19 bills on Thursday and five bills on Friday. To date, the governor has signed 141 bills this legislative session. Some of the bills signed Thursday and Friday include a bill to limit the imposition of conditions by federal entities on Colorado water rights, changing the statutory purpose of parole in order to facilitate integration into society for parolees, limiting laws governing security interests in business entities, and more. The bills signed Thursday and Friday are summarized here.

Thursday, April 21, 2016

  • HB 16-1035 – Concerning the Scope of Statutes Making the Issuance of Securities by a Public Utility Conditional on Approval by the Colorado Public Utilities Commission, and, in Connection Therewith, Clarifying that the Approval Requirement Applies Only to Electric and Gas Utilities, by Rep. Timothy Leonard and Sen. Ray Scott. The bill clarifies that only public electric and gas utilities are required to apply to the Public Utilities Commission for approval to issue or assume securities.
  • HB 16-1060 – Concerning Roadside Memorials for Fallen State Patrol Officers, by Rep. Max Tyler and Sen. Randy Baumgardner. The bill requires CDOT to erect and maintain a permanent roadside memorial for every Colorado State Patrol officer who has perished on the highway in the line of duty.
  • HB 16-1093 – Concerning the Use of the National Change of Address Database to Maintain Voter Registration Records, and, in Connection Therewith, Clarifying Terminology and Consolidating Procedures for County Clerks and Recorders to Follow when it Appears that an Elector has Moved Within the State, by Reps. Kim Ransom & Su Ryden and Sen. Jack Tate. The bill changes the process that must be followed by county clerks to confirm a voter address if the monthly search determines that a voter may have moved.
  • HB 16-1104 – Concerning the Issuance of a Summons in Lieu of a Warrant for Certain Non-Violent Offenders, by Rep. Kit Roupe and Sen. John Cooke. The bill allows law enforcement officers to issue a summons in lieu of a warrant if the officer believes there is a reasonable likelihood the defendant will appear, the local district attorney approves and has developed criteria for the procedure, the defendant has had no felony arrests in the past five years, there is no allegation that the defendant used a deadly weapon, and there are no outstanding warrants for the defendant’s arrest.
  • HB 16-1109 – Concerning that the Basic Tenets of Colorado Water Law Place on the Ability of Certain Federal Agencies to Impose Conditions on a Water Right Owner in Exchange for Permission to use Federal Land, by Reps. KC Becker & Jon Becker and Sens. Jerry Sonnenberg & Kerry Donovan. The bill states that Colorado water is a transferable property right and that the federal government must comply with state law, through the water court process, to acquire water rights.
  • HB 16-1141 – Concerning the Protection of Colorado Residents from the Hazards Associated with Naturally Occurring Radioactive Materials in Buildings, and in Connection Therewith, Making an Appropriation, by Reps. KC Becker & Don Coram and Sens. Cheri Jahn & Ellen Roberts. The bill requires the Colorado Department of Public Health and Environment to establish a radon education and awareness program to provide information and education statewide to citizens, businesses, and others in need of information, and requires that, by January 1, 2017, the CDPHE stablish a radon mitigation assistance program to provide financial assistance to low-income individuals for radon mitigation services.
  • HB 16-1153 – Concerning the Annual Date by which the General Assembly Receives a Report Regarding Outcomes of Decisions Made by the State Board of Parole, by Rep. Jovan Melton and Sen. John Cooke. The bill extends the deadline by which reports on parole outcomes made by the State Board of Parole and the Division of Criminal Justice are required from November 1 to March 31.
  • HB 16-1173 – Concerning the Continuation of the Regulation of Vessels by the Department of Natural Resources, by Rep. Diane Mitsch Bush and Sen. Ray Scott. The bill indefinitely removes the sunset of the Vessel Registration Program conducted by the Department of Regulatory Agencies to continue the registration and regulation of vessels program by Colorado Parks and Wildlife in the Department of Natural Resources.
  • HB 16-1198 – Concerning Computer Science Courses Fulfilling Certain Graduation Requirements, by Reps. Dan Pabon & Jim Wilson and Sens. Jack Tate & Andy Kerr. The bill encourages school districts to treat computer science and coding classes as mathematics or science courses and count completion of such computer-related courses toward the fulfillment of any mathematics or science graduation requirements.
  • HB 16-1215 – Concerning Changing the Statutory Purposes of Parole to Successfully Reintegrate Parolees into Society by Providing Enhanced Supportive Services, by Reps. Beth McCann & Daniel Kagan and Sen. Lucia Guzman. The bill redefines the purpose of parole to enhance public safety by reducing recidivism, select and prepare individuals who will be transitioned into the community, set individualized conditions of parole, and achieve a successful discharge from parole.
  • HB 16-1230 – Concerning the Inclusion of a County’s Financial Information in the State’s Financial Information Database, which is known as the Transparency Online Project, by Rep. Timothy Dore and Sen. John Cooke. The bill requires counties to provide the state Chief Information Officer with a copy of the county’s adopted budget no later than 30 days after the fiscal year begins, starting January 1, 2018.
  • HB 16-1255 – Concerning Additional Methods to Manage Forests to Secure Favorable Conditions for Water Supply, by Reps. Don Coram & Ed Vigil and Sen. Randy Baumgardner. The bill directs the Colorado state forest service to conduct demonstration pilot projects to implement forest management treatments that improve forest health and resilience, supply forest products to Colorado businesses, and target a Colorado watershed.
  • HB 16-1258 – Concerning the Posting by Court Clerks of Process When a Respondent is Served by Publication, by Rep. Jovan Melton and Sen. Kevin Lundberg. Current law mandates that clerks of court post the process for notice of a divorce proceeding on a bulletin board in their office when one party cannot be reached. This bill adds the option that clerks can post the process on a bulletin board or the website of the district court in which the case was filed.
  • HB 16-1259 – Concerning Local District Junior Colleges, and, in Connection Therewith, Changing the Term Local District Junior College to Local District College, by Reps. Diane Mitsch Bush & Jim Wilson and Sens. John Cooke & Kerry Donovan. The bill changes all statutory references to “local junior college” or “junior college” to “local district college” and changes requirements regarding number of board members, actions taken without regular meetings, and annexation.
  • HB 16-1270 – Concerning the Limitation of Laws Governing Security Interests to an Owner’s Interest in a Business Entity, by Rep. Pete Lee and Sens. Mark Scheffel & Rollie Heath. The bill allows small businesses to control their ownership under the Colorado Corporation and Associations Act and the Uniform Commercial Code.
  • HB 16-1271 – Concerning the Ability of a Limited Winery that has a Winery Direct Shipper’s Permit to Deliver Vinous Liquors of its Own Manufacture Directly to a Personal Consumer Without the Use of a Common Carrier, by Reps. Jonathan Singer & Dan Nordberg and Sens. Cheri Jahn & Kevin Lundberg. Under current law, a limited winery licensee with a winery direct shipper’s permit may only use a common carrier to deliver the wine it manufactures to personal consumers within Colorado. This bill allows a limited winery licensee to deliver the wine it manufactures directly to personal consumers without the use of a common carrier, as long as the licensee also has a winery direct shipper’s permit and follows the requirements of the permit.
  • HB 16-1306 – Concerning Revision of the State Statutes Governing Mortgage Loan Originators to Conform More Closely to Applicable Federal Law, and, in Connection Therewith, Amending, Relocating, and Repealing Provisions in Accordance with the Federal “Secure and Fair Enforcement for Mortgage Licensing Act Of 2008,” by Rep. Angela Williams and Sen. Chris Holbert. The bill  amends, relocates, and repeals provisions of Colorado’s mortgage loan originator licensing statutes that conflict with or have been rendered unnecessary by recent changes to federal law, or no longer reflect current national industry standards.
  • HB 16-1316 – Concerning Procedures for Changing Venue for Proceedings Relating to a Child Placed in the Legal Custody of a County Department of Social or Human Services, by Rep. Paul Rosenthal and Sen. John Cooke. The bill amends the Colorado Children’s Code to state that a child who is placed in the legal custody of a county department shall be deemed, for the entire period of the placement, to reside in the county in which the child’s legal parent or guardian resides or is located. This applies even if the child physically resides in an out-of-home placement located in another county.
  • HB 16-1327 – Concerning the Colorado Dental Board’s Authority to Promulgate Rules Implementing Financial Responsibility Requirements for Dental Care Providers, by Rep. Joann Ginal and Sen. Kevin Grantham. The bill allows the State Dental Board to establish lesser financial responsibility requirements for professional liability insurance for dental hygienists that meet certain criteria.

Friday, April 22, 2016

  • HB 16-1070 – Concerning a Signature Verification Requirement for Municipal Mail Ballot Elections, and, in Connection Therewith, Making an Appropriation, by Rep. Patrick Neville and Sen. Tim Neville. The bill requires an election judge to compare the signature on each ballot return envelope with the signature of the eligible elector stored in the statewide voter registration system for every municipal mail ballot election.
  • HB 16-1155 – Concerning Authorization for a County to Designate a Four-Lane Controlled-Access Highway that is Located in the County as a Primary Road of the County Highway System, and, in Connection Therewith, Specifying the Jurisdiction, Control, and Duties of the County and of a Municipality Through which the Highway Passes with Respect to Such a Highway, by Reps. Lori Saine & Diane Mitsch Bush and Sen. Jerry Sonnenberg. The bill allows a county with a population of 250,000 or more to designate a four-lane, controlled-access county highway in an unincorporated county area that intersects with an interstate highway or a U.S. numbered highway as a primary road of the county if the construction begins in 2016.
  • HB 16-1323 – Concerning Changing the Name of the Division of Labor to the Division of Labor and Statistics, by Rep. Tracy Kraft-Tharp and Sen. John Cooke. The bill changes the name of the Division of Labor and Employment within the Colorado Department of Labor and Employment (CDLE) to the Division of Labor Standards and Statistics.
  • HB 16-1350 – Concerning the Department of Higher Education’s Authority to Make Transfers Relating to a Governing Board’s Fee-For-Service Contracts for Specialty Education, by Rep. Dave Young and Sen. Kevin Grantham. Under current law, the Department of Higher Education may transfer up to ten percent of the annual total governing board appropriation for an institution of higher education between that governing board’s appropriation for college opportunity fund (COF) stipends, and that governing board’s fee-for-service (FFS) contracts for higher education services and programs. The bill expands the department’s authority to transfer between the COF and FFS appropriations for specialty education programs.
  • HB 16-1352 – Concerning the Appropriation of Moneys from the State Museum Cash Fund for the Benefit of Facilities Owned and Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Kevin Grantham. The bill allows moneys in the fund to also be appropriated for exhibit planning, development, and build-out at other State Historical Society facilities, and, for FY 2016-17, appropriates $2 million from the fund for those purposes. The State Historical Society has four years to spend the appropriation.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

HB 16-1359: Eliminating Exception to Prohibition on Restricting Probationers’ Medical Marijuana Use

On March 11, 2016, Rep. Joseph Salazar and Sen. Lucìa Guzman introduced HB 16-1359Concerning the Use of Medical Marijuana while on Probation. The bill was introduced into the House Judiciary Committee, where it was amended. It was again amended on Second Reading and passed Third Reading with no further amendments.

Current law prohibits a court from requiring that a person on probation refrain from possessing or using medical marijuana unless the person was convicted of a crime related to medical marijuana or, based on an assessment, the court determines that a prohibition against such possession or use is necessary to accomplish the goals of sentencing. This bill eliminates the exception related to the assessment, and instead, allows a court to consider “any material evidence” in determining whether a prohibition on the possession or use of medical marijuana by an individual on probation is necessary to accomplish the goals of sentencing.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-132: Clarifying that DUI Test Results Are Not Public Information

On February 18, 2016, Sen. John Cooke and Rep. Mike Foote introduced SB 16-132Concerning Clarifying that Test Results Relating to Certain DUI Offenses are not Public Information. The bill was assigned to the Senate Judiciary Committee, where it passed with amendments and was referred to the Senate Committee of the Whole for Second Reading. The bill passed Second Reading with amendments and passed Third Reading. In the House, the bill was assigned to the Judiciary Committee.

This bill states that the database compiled by the Department of Public Heath and Environment containing personal information relating to the results of individuals’ breath alcohol content, and all other personal identifying information, are not public information. The Department shall disclose such information only to: (1) the individual who is the subject of the test, or his or her legal representative; (2) a named interested party in a civil or criminal action in which the test results are directly related, or his or her legal representative; (3) any prosecuting attorney, law enforcement officer, state agency, or state and local public official; or (4) the Department may release non-personal identifying information in accordance with C.R.S. § 24-72-101 through § 24-72-402.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1309: Establishing a Defendant’s Right to Counsel in Certain Municipal Cases

On March 2, 2016, Rep. Susan Lontine and Sen. Vicki Marble introduced HB 16-1309Concerning a Defendant’s Right to Counsel in Certain Cases Considered by Municipal Courts. The bill was introduced in the House Judiciary Committee, where it passed, unamended, and was referred to the House Committee of the Whole. The bill passed Second and Third Readings in the House unamended and was assigned to the Senate State, Veterans, & Military Affairs Committee. The bill was amended in the State, Veterans, & Military Affairs Committee and referred to the Senate Finance Committee.

This bill applies to prosecutions for violations of municipal charters and ordinances. At the time of first appearance on a municipal charge, if the defendant is in custody and the charged offense includes a possible sentence of incarceration, the court shall appoint counsel to represent the defendant for purposes of the initial appearance unless, after a full advisement, the defendant makes a knowing, intelligent, and voluntary waiver of his or her right to counsel. If the defendant remains in custody, the appointment of counsel continues until the defendant is released from custody. If the defendant is released from custody, he or she may apply for court-appointed counsel, and the court shall appoint counsel if the court determines that the defendant is indigent and the charged offense includes a possible sentence of incarceration.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Bills Limiting Foreclosure Finder’s Fee, Clarifying Documentary Recording Fees, and More Signed by Governor

On Friday, April 15, 2016, Governor Hickenlooper signed 15 bills into law. To date, he has signed 117 bills this legislative session. Some of the bills signed Friday include a bill reducing finder’s fees for public trustee foreclosures, a bill treating sexual trafficking of a child as child abuse for dependency and neglect cases, a bill clarifying how to calculate filing fees for recording grants or conveyances of real property, and more. The bills signed Friday are summarized here.

  • HB 16-1011 – Concerning the Removal of Restrictions on the Authority of a Board of a Metropolitan District to Provide Activities in Support of Business Development Within the District, by Rep. Ed Vigil and Sens. Leroy Garcia & Kevin Grantham. The bill removes the specified minimum valuation of commercial property for which a board of a metropolitan district can provide activities in support of business recruitment, management, and development.
  • HB 16-1066 – Concerning an Habitual Domestic Violence Offender, by Rep. Kit Roupe and Sen. Linda Newell. Currently, a judge must make a finding of fact regarding whether a defendant is a habitual domestic violence offender. The bill specifies that the trier of fact (judge or jury) may determine habitual status.
  • HB 16-1073 – Concerning the Qualifications of Licensed Electricians, by Reps. Crisanta Duran & Brian DelGrosso and Sens. Lucia Guzman & Mark Scheffel. The bill creates new renewal requirements for people seeking to renew licenses as master electricians, journeyman electricians, or residential wiremen. Renewal applicants will be required to complete 24 hours of continuing education rather than passing a competency evaluation.
  • HB 16-1090 – Concerning the Conditions Under Which a Person May Assist Another for Compensation in Obtaining the Proceeds of a Foreclosure Sale After All Liens Have Been Satisfied, by Rep. Beth McCann and Sen. Cheri Jahn. The bill limits the premium, or finder’s fee, that a person may charge for offering assistance in recovering the balance of the purchase price of a foreclosed property after all liens and claims against the property have been satisfied.
  • HB 16-1098 – Concerning Updates to Provisions Relating to School Discipline Reporting, by Rep. Polly Lawrence and Sen. Linda Newell. The bill modifies school discipline reporting requirements, requiring that agencies of the Judicial Department make information regarding expunged juvenile delinquency proceedings available to the Division of Criminal Justice, specifies that the attorney general’s requirement to report names of students given criminal citations or diversion is exempt from statutes prohibiting dissemination of confidential information, and allows aggregation of data about incidents involving law enforcement on school property.
  • HB 16-1103 – Concerning Clarifying License Pathways for the Mental Health Professional Workforce, by Reps. Tracy Kraft-Tharp & Lois Landgraf and Sens. Beth Martinez Humenik & Nancy Todd. The bill specifies that candidates seeking licensure as mental health professionals may, but are not required to, register with the database of registered psychotherapists after completing their degree.
  • HB 16-1106 – Concerning the Authority of a County to Designate Public Roads as a Section of a Pioneer Trail, by Rep. Jim Wilson and Sens. Kevin Grantham & Leroy Garcia. The bill allows a board of county commissioners to designate by resolution any public roads in the county as a pioneer trail, with certain conditions.
  • HB 16-1145 – Concerning the Determination of the Documentary Fee Imposed for Recording a Grant or Conveyance of Residential Real Property, by Rep. Steve Lebsock and Sen. Jack Tate. The bill clarifies that the filing fee for a residential real property conveyance is calculated based on the total sales price, as listed on the conveyance document, and if there is no sales price listed or the amount is less than $500, the documentary fee is calculated based on the total sales price listed on the declaration form.
  • HB 16-1149 – Concerning a Requirement that the Executive Board of a Common Interest Community Created in Colorado Before July 1, 1992, Comply with the Budget Reporting Provision of the “Colorado Common Interest Ownership Act”, by Rep. Jovan Melton and Sen. Linda Newell. Currently, common interest communities established before July 1, 1992 are exempt from certain reporting requirements. The bill removes the exemption.
  • HB 16-1170 – Concerning the Continuation of the Division of Racing Events in the Department of Revenue, and, in Connection Therewith, Implementing Recommendation 1 of the 2015 Sunset Report of the Department of Regulatory Agencies, by Reps. Ed Vigil & Don Coram and Sens. Jerry Sonnenberg & Leroy Garcia. The bill extends the sunset of the Division of Racing Events and the Colorado Racing Commission until September 1, 2023.
  • HB 16-1189 – Concerning the Regulation of Bingo-Raffle Licenses, by Rep. Cole Wist and Sen. Ellen Roberts. The bill makes changes to the Secretary of State’s regulation of bingo-raffle licenses. Specifically, the bill allows people whose license was denied to appeal to an ALJ within 60 days, clarifies when consolation prizes must be reported, and removes a restriction on the number of games a person can be a game manager for.
  • HB 16-1224 – Concerning Child Abuse Involving Human Trafficking of Minors, by Rep. Paul Lundeen and Sen. Laura Woods. The bill adds human trafficking of a minor for sexual servitude or commercial sexual exploitation to the definition of child abuse for purposes of dependency and neglect. The bill also requires county departments of human services to immediately offer services to children who are victims of human trafficking when appropriate and to file petitions in juvenile court on the child’s behalf.
  • HB 16-1236 – Concerning Continuation of the Infection Control Advisory Committee, by Rep. Dianne Primavera and Sen. Larry Crowder. The bill extends the sunset of the Infection Control Advisory Committee until July 1, 2021.
  • SB 16-013 – Concerning Statutory Changes Related to the Office of the Child Protection Ombudsman, by Sen. Linda Newell & Rep. Jonathan Singer. The bill makes several statutory changes regarding the Office of the Child Protection Ombudsman, including clarifying its board’s advisory nature, clarifying certain duties and the relationship between the office and the Judicial Department, and removing an audit requirement.
  • SB 16-125 – Concerning the Governance of Credit Unions, and, in Connection Therewith, Authorizing the Appointment of an Audit Committee in Lieu of a Supervisory Committee and Allowing the Reasonable Compensation of a Director for His or Her Service to the Credit Union, by Sen. Chris Holbert and Rep. Tracy Kraft-Tharp. The bill allows the board of directors of a credit union to appoint an audit committee in lieu of a supervisory committee.

For all of Governor Hickenlooper’s 2016 legislative decisions, click here.

HB 16-1308: Establishing Criminal Penalties for Misrepresentation of a Service Animal

On March 2, 2016, Rep. Daniel Kagan and Sen. Linda Newell introduced HB 16-1308Concerning the Offense of Intentional Misrepresentation of a Service Animal. The bill was introduced in the House Judiciary Committee, where it was amended and referred to the House Committee of the Whole. The bill was amended on Second and Third Readings in the House and was assigned to the Senate Judiciary Committee, where it was postponed indefinitely.

This bill creates the criminal offense of intentional misrepresentation of a service animal (referred to herein as “offense), which is committed if: (1) a person intentionally misrepresents an animal in his or her possession as a service animal (or service-animal-in-training) for the purpose of obtaining any of the rights or privileges granted by law to persons with disabilities; and (2) the person knows that the animal is question is not a service animal (or service-animal-in-training).

If convicted, the defendant must pay $33 plus: $350-$1,000 for a first offense; $600-$1,000 for a second offense; and $1,000-$5,000, plus community service, for a third offense.

A district court may order the conviction record sealed if: (1) the defendant files a petition and pays the filing fee; (2) the defendant’s first offense was at least three years prior to filing the petition; and (3) the defendant has not had a subsequent conviction for the offense.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

e-Legislative Report: Week of April 11, 2016

legislationWelcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me atjschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings—please RSVP if you are interested.

LPC Meeting Update

Here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1211 – Marijuana Transporter License

The bill creates a retail marijuana transporter license and a medical marijuana transporter license. The license is valid for five years. A licensed marijuana transporter (transporter) provides logistics, distribution, and storage of marijuana and marijuana products. A transporter may contract with multiple businesses and may also hold another marijuana license. A transporter must be licensed by December 31, 2017, in order to continue to operate. The bill describes the circumstances under which a business can terminate a contract with a transporter.

The Bar’s Cannabis Law Committee is currently monitoring and preparing comments on this bill. The bill is working through its first chamber and has been greatly amended from its original form. The Legislative Policy Committee has not taken action on this bill.

HB 16-1235 – Commissions Evaluating State Judicial Performance

The bill makes revisions to various functions of the state commission on judicial performance (state commission) and the district commissions on judicial performance (district commission), referred to collectively as the “commissions.”

This bill was postponed indefinitely (killed) in the House State, Veterans and Military Affairs Committee. The Colorado Bar Association had many concerns with the cost and operation of the bill.

HB 16-1270 – Security Interest Owner’s Interest In Business Entity

Under current law, the Uniform Commercial Code (Code) invalidates contractual limits on the transferability of some assets that can be subject to a security interest. In 2006, the Colorado Corporations and Associations Act (Act) was amended to clearly and broadly exempt an owner’s interest in a business entity from these Code provisions to effectuate the “pick your partner” principle that allows small businesses to control their ownership. Section 3 of the bill narrows the exemption in the Act to that necessary for “pick your partner,” and sections 1 and 2 codify this narrowed exemption in the Code.

This bill, part of a four bill package of business entities clean up acts, was supported by the Bar and has passed the House and Senate and is on its way to be signed by the Governor.

HB 16-1275 – Taxation Of Corporate Income Sheltered In Tax Haven

The bill pertains to an affiliated group of corporations filing a combined report. In a combined report filing, the tax is based on a percentage of the entire taxable income of all of the includable corporations, but the tax is assessed only against the corporation or corporations doing business in Colorado. Including more affiliated corporations in the combined report may result in an increase in income subject to tax.

There are jurisdictions located outside of the United States with no tax or very low rates of taxation, strict bank secrecy provisions, a lack of transparency in their tax system operations, and a lack of effective exchange of information with other countries. There are several common legal strategies for sheltering corporate income in such jurisdictions, often called “tax havens.”

Notwithstanding a current requirement in state law that those corporations with 80% or more of their property and payroll assigned to locations outside of the United States be excluded from a combined report, the bill makes a corporation that is incorporated in a foreign jurisdiction for the purpose of tax avoidance an includable C corporation for purposes of the combined report.

The bill defines a corporation incorporated in a foreign jurisdiction for the purpose of tax avoidance to mean any C corporation that is incorporated in a jurisdiction that has no or nominal effective tax on the relevant income and that meets one or more of five factors listed in the bill, unless it is proven to the satisfaction of the executive director of the Department of Revenue that such corporation is incorporated in that jurisdiction for a legitimate business purpose.

The bill requires the state controller to credit a specified amount per fiscal year to the state education fund to be used to help fund public school education.

The bill requires the secretary of state to submit a ballot question, to be treated as a proposition, at the statewide election to be held in November 2016 asking voters:

  • To increase taxes annually by the taxation of a corporation’s state income that is sheltered in a foreign jurisdiction for the purpose of tax avoidance;
  • To use the resulting tax revenue to help fund elementary and secondary public school education; and
  • To allow an estimate of the resulting tax revenue to be collected and spent notwithstanding any limitations in section 20 of article X of the state constitution (TABOR).

The Tax Law section of the CBA voted to oppose this bill, which was postponed indefinitely (killed) by the Senate State Affairs Committee. The Bar had concerns over the cost of vague language in the bill as well as the impact on the courts and judicial system.

HB 16-1310 – Operators Liable For Oil And Gas Operations

Under current law governing relations between surface owners and oil and gas operators, to prevail on a claim the surface owner must present evidence that the operator’s use of the surface materially interfered with the surface owner’s use of the surface of the land. The bill amends this requirement to allow proof that the operator’s oil and gas operations harmed the surface owner’s use of the surface of the land, caused bodily injury to the surface owner or any person residing on the property of the surface owner, or damaged the surface owner’s property.

The Legislative Policy Committee voted to oppose this bill because it upends the burden of proof responsibility. The bill has passed the House and is moving on to the Senate, where it will be heard by the Agriculture Committee.

HB 16-1331 – Policies On Juvenile Shackling In Court

The bill requires restraints on a juvenile to be removed prior to any court proceeding, except when the court determines the restraints are necessary:

  • To prevent physical harm to the juvenile or another person;
  • To prevent disruptive courtroom behavior by the juvenile, evidenced by a history of behavior that created potentially harmful situations or presented substantial risk of physical harm; or
  • To prevent the juvenile from fleeing the courtroom, when there is evidence of an escape history or other relevant factors.

The prosecution, sheriff, or any other detention or pretrial personnel may request that an individual juvenile be restrained in the courtroom. The court shall provide the juvenile’s attorney an opportunity to be heard before the court allows the use of restraints on a juvenile. The court may conduct a hearing on the use of restraints without the juvenile being present.

The CBA supports this bill as good policy and an extension of the efforts the courts have made this past year. While the courts need discretion, we believe this bill strikes the right balance for outlining the policies on how and when juveniles should be subject to shackling.

HB 16-1346 – Open Records Subject To Inspection Denial

The bill allows a custodian to deny access to confidential personal information records and employee personal e-mail addresses. The provisions of the Colorado Open Records Act (CORA) that relate to civil or administrative investigations and trade secrets and other privileged and confidential information apply to the judicial branch.

The Bar Association opposed this bill because of constitutional and separation of powers concerns regarding the relationship between the judicial and legislative branches of government. In addition, we believe that the PAIRR rules issued by the Chief Justice, which closely mirror the text of CORA, are better suited to meet the information needs of requesters while maintaining the integrity of judicial records.

HB 16-1394 -Aligning Issues Around At-risk Persons

The bill implements the following recommendations of the at-risk adults with intellectual and developmental disabilities mandatory reporting implementation task force:

  • Standardizing statutory definitions among the Colorado Criminal Code, adult protective services in the department of human services, and the office of community living in the department of health care policy and financing;
  • Specifying that enhanced penalties for crimes against an at-risk person apply to all persons 70 years of age or older and to all persons with a disability; and
  • Clarifying and expanding the definitions of persons who are required to report instances of mistreatment of at-risk elders or at-risk adults with an intellectual and developmental disability (adults with IDD).

The bill also:

  • Reduces the time in which a law enforcement agency or county department is required to prepare a written report from 48 hours to 24 hours;
  • Specifies that a county department of human or social services is to conduct an investigation of allegations of mistreatment of an at-risk adult; and
  • Clarifies that the human rights committee is responsible for ensuring that an investigation of mistreatment of an adult with IDD occurred.

The Colorado Bar Association opposed the bill as written, but is working with stakeholders to review amendments from other stakeholder groups. We are working with and talking with the sponsors frequently.

SB 16-130 – Methods To Collect Consumer Use Tax

Consumer use tax is the complement to sales tax and is due on the purchases of goods where the retailer did not charge sales tax. For example, any time consumers make an Internet purchase and the out-of-state retailer does not charge sales tax, the purchaser should pay the equivalent amount of sales tax as consumer use tax directly to the Colorado Department of Revenue (department). The department has added a use tax line to the 2015 individual income tax return form in an effort to make self-reporting of use tax more convenient for consumers.

The bill specifies that after the 2015 income tax year the department is not allowed to add use tax reporting lines to the individual income tax return form for any reason. The bill also prohibits the department from auditing any taxpayer for any amount he or she reported on the use tax lines included in the 2015 individual income tax return form.

The CBA is monitoring this bill and has sought permission to make changes to the bill to ensure that collecting use taxes is efficient.

SB 16-131 Overseeing Fiduciaries’ Management Of Assets

The bill clarifies statutory language concerning the removal of a fiduciary to ensure that a fiduciary’s authority is suspended as soon as a petition to remove the fiduciary is filed. The bill adds a provision to the conservatorship statutes stating that an adult ward or protected person has a right to be represented by a lawyer of their choosing unless the trial court finds the person lacks sufficient capacity to provide informed consent for representation by a lawyer. The bill states that after a fiduciary receives notice of proceedings for his, her, or its removal, the fiduciary shall not pay compensation or attorney fees and costs from the estate without an order of the court.

This bill rearranges the existing responsibilities for fiduciaries managing assets. It is a cleanup and reorganization of these statutes and adds the right to legal counsel for wards and protected persons. The bill is scheduled for committee later this week.

SB 16-133 – Transfer Of Property Rights At Death

Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. The bill removes the requirement that the person who swears to and affirms the supplementary affidavit has no record interest in the real property. The bill includes inherited individual retirement accounts and inherited Roth individual retirement accounts as property exempt from levy and sale under writ of attachment or writ of execution.

The bill amends provisions concerning determination-of-heirship proceedings, as follows:

  • Clarifies the definition of “interested person” so that anyone affected by the ownership of property may commence a proceeding;
  • Describes when an unprobated will may be used as part of a proceeding;
  • Clarifies notice requirements; and
  • Ensures that a judgment and decree will convey legal title as opposed to equitable title.

The bill enacts portions of section 5 of the Uniform Power of Appointment Act, with amendments.
This bill, the second part of the Colorado Bar Association’s probate reorganization bills, has passed the legislature and will be sent to the Governor shortly.

Bills that the LPC is monitoring, watching or working on can be found at this link:
http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

Colorado Supreme Court: Criminal Defendants Have No Constitutional Right to Conduct Discovery

The Colorado Supreme Court issued its opinion in People in Interest of E.G. on Monday, April 18, 2016.

Criminal Procedure—Criminal Discovery—Constitutional Law.

The Supreme Court considered whether a trial court may order a third party to allow a criminal defendant discovery access to the third party’s home. The Court first discussed the historical underpinnings of criminal discovery, noting that there is no common law right to discovery in a criminal case. The Court then analyzed the possible sources of authority by which a trial court could grant a defendant’s discovery request for access to a private home. Finding no constitutional provision mandating such discovery, and failing to locate any authority to grant such a discovery request in Crim.P. 16 or 17, the Court concluded that the trial court lacked the authority to order the third party to allow access to her private home.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Criminal Defendant Has No Constitutional Right to Examine Victim’s Home

The Colorado Supreme Court issued its opinion in In re People v. Chavez on Monday, April 18, 2016.

Criminal Procedure—Criminal Discovery—Constitutional Law.

In this original proceeding, the Supreme Court considered whether a trial court may order a third party to allow a criminal defendant discovery access to the third party’s home. Relying on People in the Interest of E.G., 2016 CO 19, __ P.3d __, the Court concluded that the trial court had no authority to order the alleged victim to allow defendant or his representatives into her home to investigate the scene of the alleged crime.

Summary provided courtesy of The Colorado Lawyer.

Bills to Make References to Attorney General Gender Neutral, Authorize Pink Vests for Hunters, and More Signed

On Tuesday, April 12, 2016, the governor signed six bills into law, and on Thursday, April 14, 2016, the governor signed 18 bills into law. To date, the governor has signed 102 bills into law this legislative session. Some of the bills signed Tuesday and Thursday include a bill to make statutory references to the attorney general gender neutral, a bill to allow hunters to wear fluorescent pink vests, a bill allowing employees of an alcohol wholesaler to purchase alcohol at wholesale prices, a bill increasing judicial discretion in sentencing for violent crimes, and more. The bills signed Tuesday and Thursday are summarized here.

Tuesday, April 12, 2016

  • SB 16-068 – Concerning Wearing Fluorescent Pink Garments to Hunt Big Game, by Sen. Kerry Donovan and Reps. Daneya Esgar & Yeulin Willett. Currently, hunters of big game are required to wear fluorescent orange clothing. The bill allows hunters to wear fluorescent pink as well.
  • HB 16-1030 – Concerning the Use of Off-Highway Vehicles, by Reps. J. Paul Brown & Lois Court and Sen. Kerry Donovan. Currently, anyone age 10 or over can operate an off-highway vehicle with supervision of a licensed driver. The bill allows local governments to require off-highway vehicle operators to have a driver’s license or carry liability insurance.
  • HB 16-1163 – Concerning Appropriations from the Noxious Weed Management Fund, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill specifies that unexpended monies in the noxious weed management fund are subject to reappropriation.
  • HB 16-1182 – Concerning the Continuation of the Commodity Metals Theft Task Force, by Reps. Lois Court & Crisanta Duran and Sens. John Cooke & Rollie Heath. The bill extends the sunset of the Commodity Metals Theft Task Force until September 1, 2025.
  • HB 16-1184 – Concerning the Administration of Money that Is Required Under Existing Law to be Transferred from the High Cost Support Mechanism to the Broadband Fund, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill requires that the High Cost Support Mechanism funds be transferred to the Broadband Fund on July 1 of each year, rather than on allocation.
  • HB 16-1269 – Concerning the Ability of the Department of Revenue to Allow Additional Application Methods for Identification Cards, by Rep. Jovan Melton and Sen. John Cooke. The bill allows holders of Colorado driver’s licenses that are current or less than one year out-of-date to apply by mail for an identification card.

Thursday, April 14, 2016

  • HB 16-1094 – Concerning Making References to the Attorney General in the Colorado Revised Statutes Gender Neutral, by Rep. Timothy Dore and Sen. Ellen Roberts. The bill revises the Colorado Revised Statutes to make references to the attorney general gender-neutral.
  • HB 16-1157 – Concerning the Establishment of a Future Sunset Review of the Functions Delegated to the Director of the Division of Professions and Occupations Under the “Michael Skolnik Medical Transparency Act of 2010” to Implement the Recommendations of the Department of Regulatory Agencies as Contained in its 2015 Sunset Report Pertaining to the Division of Professions and Occupations, by Reps. Alec Garnett & Tracy Kraft-Tharp and Sen. Jack Tate. The bill adds a September 1, 2021, sunset date for the Michael Skolnik Medical Transparency Act of 2010.
  • HB 16-1168 – Concerning the Continuation of the Rural Alcohol and Substance Abuse Prevention and Treatment Program, by Reps. Joann Ginal & Jessie Danielson and Sen. Ray Scott. The bill extends the sunset of the Rural Alcohol and Substance Abuse Prevention and Treatment Program until September 1, 2025.
  • HB 16-1169 – Concerning the Appointment of Representatives of the Southern Ute and Ute Mountain Ute Tribes as Voting Members of the Statewide Transportation Advisory Committee, by Rep. Don Coram and Sen. Ellen Roberts. The bill alters the membership of the Statewide Transportation Advisory Committee to include as full voting members one representative from the Southern Ute Tribe and one representative from the Ute Mountain Ute Tribe.
  • HB 16-1176 – Concerning the Authority of a Licensed Wholesaler to Establish an Employee Purchase Program Under Which its Employees May Purchase Directly from the Wholesaler Alcohol Beverage Products Sold by that Wholesaler, by Rep. Steve Lebsock and Sen. Jack Tate. The bill allows licensed vinous and spiritous wholesalers to establish an employee purchase program.
  • HB 16-1188 – Concerning Requirements for the Provision of Additional Public Information by a Separate Legal Entity Established by Contract by a Combination of Political Subdivisions of the State, by Rep. Paul Rosenthal and Sen. Beth Martinez Humenik. The bill requires a separate legal entity formed by a combination of local governments and political subdivisions to file a copy of the intergovernmental agreement with the Division of Local Government in the Department of Local Affairs.
  • HB 16-1190 – Concerning the Use of Deadly Force in a Detention Facility, by Rep. Timothy Dore and Sen. John Cooke. The bill clarifies that deadly force is not allowed against intruders in a dwelling that is a detention facility.
  • HB 16-1192 – Concerning a Nonsubstantive Recodification of the Sunset Review Procedures, by Rep. Daniel Kagan and Sen. Pat Steadman. The bill reorganizes sunset review provisions in statutes by removing repealed provisions and renumbering the remaining provisions for clarity.
  • HB 16-1193 – Concerning Granting Electronic Access to Court Information to Attorneys Under Contract with the Office of the Respondent Parents’ Counsel, by Rep. Millie Hamner and Sen. Kent Lambert. The bill grants attorneys working with the Office of Respondent Parents’ Counsel electronic access to the name index and register of actions databases in the Judicial Department.
  • HB 16-1229 – Concerning Modification of the Means of Repayment for Certain Ongoing Financial Obligations Incurred by the State in Order to Fund Capital Construction Projects for State-Supported Institutions of Higher Education, by Rep. Bob Rankin and Sen. Pat Steadman. Currently, a portion of the Federal Mineral Lease revenue is transferred into a reserve fund and a revenues fund to support capital construction projects at institutes of higher education. The bill specifies that for this fiscal year, all money in the reserve fund should be transferred into the revenues fund and the reserve fund should be eliminated.
  • HB 16-1247 – Concerning a Supplemental Appropriation to the Department of Public Health and Environment, by Rep. Millie Hamner and Sen. Kent Lambert. The bill allows a supplemental appropriation to the Department of Public Health and Environment.
  • HB 16-1272 – Concerning Procedures to be Followed in Connection with the Disconnection by Ordinance of Land from a Municipality, by Rep. Tracy Kraft-Tharp and Sen. Jack Tate. The bill modifies the procedures for the owner of a tract of land adjacent to a municipality to have the tract of land disconnected from the municipality.
  • HB 16-1297 – Concerning the Immediate Reestablishment of the Voluntary Contributions Excluded from the 2015 Colorado Income Tax Return Form for Not Receiving the Requisite Minimum Dollar Amount of Contributions by the Statutory Deadline, and, in Connection Therewith, Expanding the Number of Voluntary Contributions that May Appear on the Income Tax Return Form and Lowering the Minimum Amount of Donations that Must be Received by Every Fund Appearing on the Form, by Rep. Lois Court and Sen. Beth Martinez Humenik. The bill expands the number of voluntary contribution income tax check-offs on a state income tax form from 15 to 20 and lowers the minimum contribution amount that a program must receive to stay on the form from $75,000 to $50,000, and reestablishes check-offs that were removed last year because they did not meet the minimum contribution amount.
  • HB 16-1416 – Concerning the Transfer of Money from the General Fund to Cash Funds that are Used for the State’s Infrastructure, by Rep. Millie Hamner and Sen. Kent Lambert. The bill replaces transfers specified as percentages with actual dollar amounts.
  • SB 16-051 – Concerning Increasing Judicial Discretion Regarding the Imposition of Consecutive Sentences for Violent Crimes, by Sens. Mike Johnston & Kevin Lundberg and Rep. Jovan Melton. The bill removes the requirement that people who commit two or more separate, specified crimes of violence arising out of the same incident be sentenced consecutively.
  • SB 16-099 – Concerning Implementing Recommendations of the State Auditor’s Office by Establishing the Authority of the Correctional Education Program to Sell Inmate-Produced Products to Specified Persons, by Sen. Cheri Jahn and Rep. Dianne Primavera. The bill authorizes the correctional education program to sell goods produced by inmates to other inmates, invited guests, employees of the department, governmental agencies, or nonprofit organizations, provided certain conditions are met.
  • SB 16-110 – Concerning Protecting the Privacy of Child Victims when Releasing Criminal Justice Records, by Sen. Laura Woods and Rep. Paul Lundeen. The bill requires the custodian of criminal justice records to make a notation of “child victim” whenever the name is disclosed during official proceedings, except when information is shared between certain state and local government agencies.
  • SB 16-122 – Concerning Additional Oversight of the Activities of the Department of Transportation, by Sen. Randy Baumgardner and Reps. Dan Nordberg & J. Paul Brown. The bill requires the Colorado Department of Transportation to undergo an audit, release funds budgeted for certain projects within one year or sooner, post on its website information related to public bid contracts, and more.

For all of Governor Hickenlooper’s 2016 legislative decisions, click here.