May 18, 2012

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Colorado Court of Appeals: People Failed to Prove All Elements of Crime Against Delinquent Juvenile for Bomb Threats

May 2, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People in the Interest of C.F. on April 26, 2012.

False Reporting of Bomb—Location of Person When Threats Made—Failure to Prove Elements of Offenses.

The People appealed the district court’s rulings that the prosecution had not proved that C.F., a juvenile, had committed acts that, if committed by an adult, would constitute the offenses of (1) falsely reporting an explosive, weapon, or harmful substance; and (2) interfering with the staff, faculty, or students of an educational institution. The rulings were approved.

C.F. left telephone messages for two schools threatening to blow up the schools. At trial, C.F. essentially conceded that he had made the calls and did not dispute the substance of what he had said. The district court acquitted C.F. of all charges, however, finding that the prosecution had failed to prove an element of the charges.

The People argued that CRS §18-8-110 does not require proof that C.F. reported that a bomb (or other prohibited item or substance) had been placed. The statute specifically requires, however, that the People prove that the defendant reported that the bomb (or other prohibited item or substance) “has been placed in any public or private place or vehicle designed for the transportation of persons or property.” The substance of C.F.’s reports did not support an inference that bombs had been, at the time of the reports, placed somewhere.

The People also argued that CRS §18-9-109(2) does not require proof that C.F. was at the schools when he interfered with school operations. The clause in this statute, however, unambiguously concerns where the person charged is located when he engages in activity proscribed by the statute. Because C.F. was not at the schools when he made these threats, the prosecution failed to prove this element of the charges. Therefore, the district court did not err in finding that the prosecution had failed to prove all elements of these offenses beyond a reasonable doubt.

Summary and full case available here.

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Colorado Court of Appeals: Statute Regarding “Taking” of Wildlife Not Unconstitutionally Vague; Juvenile Delinquency Conviction Upheld

April 17, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People in the Interest of M.C. on April 12, 2012.

Willful Destruction of Wildlife.

M.C., a juvenile, appealed an adjudication of delinquency entered after a bench trial. The judgment was affirmed.

The juvenile and two companions, T.P. and C.P., had gone out to shoot clay pigeons when they encountered a pronghorn antelope. T.P. shot and killed it. The boys went to C.P.’s home and returned that night, dragged the carcass down a hill, and hid it. The juvenile assisted. The juvenile was charged with willful destruction of wildlife, in violation of CRS § 33-6-117(1)(a)(II), which holds that it is unlawful to “intentionally abandon the carcass or body of taken wildlife.” The offense is a class 5 felony. The prosecution responded to a request for a bill of particulars as follows:

[Juvenile] abandoned the wildlife when he left the original kill site with the person who killed the wildlife. He went with the person who killed the wildlife back to a [sic] juvenile’s house. He then returned to the scene with the person who killed the wildlife. He helped move the carcass from the original spot to a different location. He and the others then abandoned the wildlife.

The juvenile moved to dismiss on the ground that the information failed to charge an offense. He argued that CRS § 33-6-117(1)(a)(I) and (II) are not independent and, therefore, the actor had to have “taken” the wildlife. Alternatively, he argued that subsection (II) was unconstitutionally vague because it does not identify what right or interest the actor must have in the wildlife. The court denied the motion.

The juvenile renewed his same arguments on appeal. The Court of Appeals rejected both of them. The Court first found that the plain language of CRS § 33-6-117(1)(a)(I) and (II) describe different ways of committing willful destruction of wildlife—one of which is abandoning wildlife regardless of whether the actor was also the taker.

The Court also found that CRS § 33-6-117(1)(a)(II) was not void for vagueness. A facial challenge requires a showing that the statute is “impermissibly vague in all of its applications.” The juvenile argued that a person can only abandon something in which a person has a right or interest. Here, the statute requires that the wildlife was “taken,” defined as “to acquire possession of wildlife.” Although finding ambiguity in the phrasing (the actor doing the taking is not identified), the Court held that it did not rise to the level of unconstitutional vagueness, because a person of common intelligence has sufficient notice under the statute that subsection (II) could apply to abandonment of wildlife taken by another person. “Abandon” is not defined in the statute, but the plain meaning of the word is clear enough that a person of common intelligence would understand that there was liability for abandoning the carcass of an animal taken by another. The judgment was affirmed.

Summary and full case available here.

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Colorado Court of Appeals: Trial Court Improperly Curtailed Father’s Constitutional Rights to Care, Custody, and Control of Biological Child

April 17, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities Concerning B.R.D., and Concerning Decker on April 12, 2012.

Presumption of Fit Parent Versus Non-Parent—Custody.

Father sought liberal and expanded parenting time and a share of decision-making authority regarding his son. The trial court denied his request, awarding sole decision-making responsibility, primary residential caretaking, and majority parenting time to Phillip and Sherry Decker, the couple with whom the boy currently was residing. The order was vacated and the case was remanded.

Father and mother are biological parents of a boy born September 2005. Mother gave him up for adoption and he was placed with the Deckers shortly after birth. In January 2006, mother filed a petition stating that she wished to relinquish to the Deckers her parental rights. Several months later, father, who had not known of mother’s pregnancy, learned of the birth. He acknowledged paternity and objected to the adoption. Mother then asked the court to dismiss her relinquishment petition and have the boy returned to her. The Deckers asked the court to terminate mother and father’s parental rights.

In June 2007, mother and father entered into a stipulation with the Deckers that awarded the Deckers sole parental and decision-making responsibility, but also allocated some parenting time to mother and father. Mother and father reserved the right to ask for a modification of parental responsibilities and also paid child support to the Deckers. In December 2008, mother moved to increase her parenting time and to have more decision-making authority. In September 2009, father asked for a similar modification.

In October 2010, the court held a three-day evidentiary hearing. The court found that the boy was deeply attached to father and mother, as well as to the Deckers and their child. The court applied the endangerment standard found in CRS §§ 14-10-129 and -131 and, finding no endangerment, decided that the Deckers should be the primary residential custodians and exercise sole decision-making authority. Father appealed.

Father argued that the court failed to accord him the presumption that he is a fit parent acting in the best interests of the boy. The Court of Appeals agreed. The Court noted that the applicable statutes essentially establish a three-step analysis: (1) there is a presumption that prior orders should remain in effect; (2) to overcome the presumption, the court must find evidence showing that the status quo endangers the child and that a modification will create advantages that outweigh any harm caused by the modification; and (3) the modification must be in the child’s best interests.

In this case, however, the Court determined that the status of the persons involved (father versus non-parents) also is a determining factor. The Court found that parents have a fundamental interest, protected by the Due Process Clause, in the care, custody, and control of their children. A fit parent is presumed to act in the best interest of his or her child. In analyzing appellate decisions addressing conflicts between parents and non-parents, the Court found (1) there is a presumption that the parent has a first and prior right to custody, which presumption may be rebutted; (2) the presumption is given “special weight” by requiring proof of “special factors” that justify interference with a parent’s decisions when the parent has custody; (3) to grant responsibilities to a non-parent over the objection of a parent, a court must find by clear and convincing evidence that such an order is in the child’s best interests based on special factors; and (4) a fit parent who has relinquished custody is nonetheless entitled to the presumption that his or her decisions about the child’s custody are in the child’s best interests.

In this case, father has a constitutionally protected interest in the boy’s care, custody, and control, and is presumed to act in the boy’s best interests. Consequently, the statutory analysis is altered in the following manner: (1) rather than presuming the existing order remains in effect, the court must give “special weight” to father’s modification request (father gains the presumption); (2) the Deckers must be given an opportunity to rebut the presumption by showing that the modification is not in the boy’s best interests and that the present allocation does not endanger him, and they must prove that the present allocation is in the boy’s best interests; (3) the Deckers must satisfy their evidentiary burdens by a preponderance of the evidence standard; and (4) if the court denies father’s request, it must make findings of fact identifying the special factors on which it relied. Because the trial court did not follow the foregoing analytic framework, its ruling was in error and the case was remanded for proceedings conducted under the standards described in the opinion.

Summary and full case available here.

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Application Process Open for Family Violence Justice Fund Grants from Colorado Judicial Branch

April 13, 2012 By Leave a Comment

The Colorado Judicial Branch announced today it has opened the application process for Fiscal Year 2013 grants from the Family Violence Justice Fund, which funds programs that provide civil legal services to indigent Coloradans.

Application forms will be available Monday, April 16, 2012 at http://www.courts.state.co.us/Administration/Unit.cfm/Unit/fvjf and will be accepted only via email.

The program was established by the General Assembly in 1999 to help indigent victims of family violence obtain legal services at no cost to them.

Grants will be awarded based on a formula that considers factors including past participation in the program. For Fiscal Year 2013, $625,000 is available for grants.

Applications must be received by the State Court Administrator’s Office by Friday, May 25, 2012, to be considered for a grant. To be eligible, organizations must be non-profit and currently serving the legal needs of indigent victims of family violence.

Successful organizations must be prepared to provide full legal services, including but not limited to assistance with divorce, child custody, child support, and other related civil matters. Additional information regarding the fund and qualifications for organizations receiving grants may be found in section 14-4-107 of the Colorado Revised Statutes.

Applications will be accepted via email only at jessica.zender@judicial.state.co.us. Questions may be directed to Jessica Zender at the email address above or by calling (303) 861-1111.

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Colorado State Judicial Revises Many JDF Instructions and Forms in March

April 11, 2012 By Leave a Comment

As part of its continuing efforts to keep JDF forms up-to-date, the Colorado State Judicial Branch revised several instructions and a few forms in March. Practitioners should begin using the new forms and instructions immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Download the new forms from State Judicial’s individual forms pages or below.

Adoption

  • JDF 495 – “Instructions for Second Parent Adoption” (revised 3/12)
  • JDF 497 – “Instructions for Validation of Foreign Adoption” (revised 3/12)
  • JDF 498 – “Instructions for Kinship Adoption” (revised 3/12)
  • JDF 499 – “Instructions for Custodial Adoption” (revised 3/12)
  • JDF 500 – “Instructions for Stepparent Adoption” (revised 3/12)
  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 3/12)

Appeals

  • JDF 126 – “Instructions to File a County Court Civil or Small Claims Appeal” (revised 3/12)

County Civil / District Civil

  • JDF 86  – “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 3/12)
  • JDF 96 – “Instructions for Filing an Answer and/or Counterclaim in County Court” (Money Demand) (revised 3/12)
  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED) / Evictions” (revised 3/12)
  • JDF 110 – “Instructions for County Court Civil Cases (Money Demand)” (revised 3/12)
  • JDF 112 – “Instructions for Reviving a Judgment” (revised 3/12)
  • JDF 115 – “Instructions for Replevin” (revised 3/12)
  • JDF 122 – “Instructions for Issuance of Contempt Citation” (revised 3/12)
  • JDF 137 – “Instructions for Filing a Foreign Judgment” (revised 3/12)
  • JDF 385  – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (revised 3/12)
  • JDF 432 – “Instructions for Filing a Change of Name (Adult)” (revised 3/12)
  • JDF 605 – “Instructions for Appealing Property Tax Assessments with the District Court” (revised 3/12)
  • JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 3/12)
  • JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice” (revised 3/12)

Criminal

  • JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 416 – “Instructions to File a Petition to Seal Arrest and Criminal Records” (revised 3/12)

Domestic

  • JDF 1215 – “Evaluation of a Foreign Decree, Foreign Custody-Determination, and Foreign Support Order” (revised 3/12)
  • JDF 1220 – “Instructions to Register a Foreign Decree” (revised 3/12)
  • JDF 1800 – “Instructions/Options to Enforce Orders” (revised 3/12)
  • JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support and/or Maintenance Orders” (revised 3/12)

Juvenile

  • JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 476 – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Juvenile Adjudication or Disposition” (revised 3/12)

Paternity

  • JDF 1500  – “Instructions to Establish Paternity” (revised 3/12)
  • JDF 1502 – “Summons in Paternity” (revised 3/12)
  • JDF 1513 – “Instructions to Disclaim Paternity” (revised 3/12)
  • JDF 1515 – “Summons to Disclaim Paternity” (revised 3/12)

Probate

  • JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State” (revised 3/12)
  • JDF 786 – “Instructions to File Petition to Transfer Adult Guardianship and/or Conservatorship From Colorado to Receiving State” (revised 3/12)
  • JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 3/12)
  • JDF 823 – “Instructions for Appointment of a Guardian – Minor” (revised 3/12)
  • JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 3/12)
  • JDF 860 – “Instructions for Appointment of a Conservator – Minor” (revised 3/12)
  • JDF 875 – “Instructions for Appointment of a Conservator – Adult” (revised 3/12)
  • JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 3/12)
  • JDF 906 – “Instructions for Probate With a Will” (revised 3/12)
  • JDF 907 – “Instructions for Probate Without a Will” (revised 3/12)
  • JDF 957 – “Instructions for Closing an Estate Formally” (revised 3/12)
  • JDF 958 – “Instructions for Closing a Small Estate Informally” (revised 3/12)
  • JDF 959 – “Instructions for Closing an Estate Informally” (revised 3/12)
  • JDF 989 – “Instructions for Re-Opening an Estate” (revised 3/12)

Protection Orders

  • JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 3/12)
  • JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 3/12)

Small Claims

  • JDF 248 – “Instructions for Filing a Small Claims Case” (revised 3/12)
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e-Legislative Report: Week Thirteen, April 9, 2012

April 11, 2012 By Leave a Comment

In this week’s Legislative Video Update, it still seems relatively quiet around the Capitol. There were a few exceptions, including the Senate sending the Juvenile Direct File Limitations bill to the Governor for signing, and an update on the CBA LPC-opposed fetal-homicide measure. As expected, the Budget Bill was introduced and is moving to the House this week.

From the CBA Legislative Policy Committee

The Legislative Policy Committee did not meet on Friday, April 6.

From the Capitol

The week that was April 2 was relatively quiet but for a few exceptions.

On Monday, April 2, the Senate Judiciary Committee took three hours of testimony on HB 12-1130 – Concerning offenses against an unborn child. Then, the bill’s sponsor requested that the bill be taken off the table in order for the sponsor to find language that can satisfy the concerns raised by a majority of the Judiciary Committee members. The CBA LPC voted to oppose the legislation at the request of the Civil Rights committee. A quick check of the Senate Judiciary calendar does not have the bill scheduled in the coming week.

As expected, the Long Bill or Budget Bill (HB 12–1335) was introduced on Wednesday, April 4. The Appropriations Committee, the bill’s committee of reference, approved the bill on Thursday, April 5 and sent the bill to the floor of the House for consideration on 2nd Reading. The routine schedule for the Long Bill was altered somewhat when both the House and the Senate took a long weekend by recessing early on Thursday afternoon. The next step in the life of the Long Bill is two days of separated “caucusing” by both sides of the House on the numerous bill sections separated by the various departments of state government. The caucus process allows the 62 House members who did not participate in the preparation of the Long Bill an opportunity to learn about the budget, ask questions, and propose amendments to the bill. Second reading on the Long Bill is scheduled for Wednesday, April 11.

On Thursday, before a three-day weekend break, the Senate gave final approval to HB 12-1271 – Concerning charging of juveniles by direct file of information or indictment in district court. The final tally in the Senate was 22-13 to move the bill to the Governor for signature. The bill proceeds directly to the Governor’s desk since no amendments were added to the bill in the Senate. Amendments were the subject of great debate on 2nd Reading and a rare substantive amendment offered on 3rd Reading on Thursday. In the end, all amendments to the bill were rejected by the proponents of the bill and the Senate. The CBA LPC authorized the Juvenile Law Section to support the bill in the name of the section alone.

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SB 12-159: Evaluations of Children Receiving Home and Community Based Services for Autism and Annual Review

April 3, 2012 By Leave a Comment

On March 19, 2012, Sen. Evie Hudak and Rep. Jim Kerr introduced SB 12-159 – Concerning the Evaluation of Home- and Community-Based Services for Children with Autism Under the Medicaid Waiver Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that evaluation of children receiving long-term care services and supports through the Medicaid autism waiver program must occur at the time the child begins receiving services and when services terminate, as well as regularly during the course of services. The evaluations must include norm-referenced and standardized assessment of the child’s expressive and receptive communication, the child’s adaptive skills, including self-help skills, and the child’s maladaptive behavior, including self-injurious and aggressive behavior.

The department of health care policy and financing shall annually review the balance in the Colorado autism treatment fund to determine whether additional eligible children may receive services and supports under the program.

As part of its regular review of Medicaid waivers, the department shall review the waiver to determine if the program eligibility criteria are sufficient to ensure that services and supports under the program are being directed toward children with significant intellectual or adaptive impairment in addition to a diagnosis of autism.

The department shall conduct an evaluation of the program and the children served through the program that must include information about the improvement in communication and adaptive behavior of children receiving services and supports. The department may contract with an independent program evaluator to review individual treatment evaluations.

The bill clarifies that moneys in the fund may be used for the evaluation of children receiving services through the program, as well as for the evaluation of the program.

The bill is scheduled in the Health And Human Services Committee on April 4 Upon Adjournment.

Summaries of other featured bills can be found here.

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HB 12-1271: Raising Age for Direct Filing and Limiting Circumstances in Which Juveniles Can Be Charged as Adults

March 29, 2012 By Leave a Comment

On February 7, 2012, Rep. B.J. Nikkel and Sen. Angela Giron introduced HB 12-1271 – Concerning Charging of Juveniles by Direct File of Information or Indictment in District Court. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

On Friday, March 23 the CBA Legislative Policy Committee authorized the Juvenile Law Section to support the bill in the name of the Juvenile Law Section. Under current law, a juvenile charged with a specific serious crime can be prosecuted in district court under the district attorney’s authority to direct file certain juveniles. This bill amends the direct file statute to limit the offenses for which a juvenile may be subject to direct file to class 1 felonies, class 2 felonies, crime of violence felonies or sex offenses if the juvenile has a previous felony adjudication, and violent sex offenses. The bill limits direct file to juveniles age 16 or 17.

After a juvenile is charged in district court, the juvenile may petition the adult court for a reverse-transfer hearing to transfer the case to juvenile court. The juvenile must make the request at or before the time to request a preliminary hearing, and the court shall set the reverse-transfer hearing at the same time as the preliminary hearing. If after a reverse-transfer hearing, the court finds the juvenile and community would be better served by juvenile proceedings it shall order the case to juvenile court. If, after a preliminary hearing, the district court does not find probable cause for a direct-file-eligible offense, the court shall remand the case to the juvenile court.

Under the bill, a juvenile’s non-felony conviction must be remanded to juvenile court and, when a juvenile sentence is selected, the conviction converts to a juvenile adjudication.

The amended bill passed out of the House on bill on March 19; the bill is scheduled on the Judiciary Committee calendar for Monday, March 26 at 1:30 p.m.

Since this summary, the bill passed out of the Senate Judiciary Committee unamended and was referred to the Senate Committee of the Whole.

Summaries of other featured bills can be found here.

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Governor Hickenlooper Signs Several More Bills into Law

March 28, 2012 By Leave a Comment

Many bills have reached the Governor’s desk this legislative session, and on Thursday, March 22 and Saturday, March 24, 2012, Governor Hickenlooper signed several more bills into law.

Eighteen bills were signed into law on Saturday, March 24; five are highlighted below. A complete list of the legislation signed into law Saturday can be found here.

  • SB 12-011: Concerning the Differential Response Pilot Program for Child Abuse or Neglect Cases of  low or Moderate Risk.
  • Sponsored by Sen. Nancy Spence and Rep. Ken Summers. The bill extends the Differential Response Pilot Program beyond the five counties that were originally designated and allows families with low or moderate risk to engage in voluntary programs rather than involuntary and expensive court intervention.
  • SB 12-064: Concerning the Colorado Children’s Trust Fund.
  • Sponsored by Sen. Jeanne Nicholson and Rep. Tom Massey. The bill extends the sunset of the Colorado Children’s Trust Fund until July 1, 2022, and clarifies that the moneys in the fund are to be used for child abuse/neglect prevention, not intervention.
  • HB 12-1029: Concerning an Economic Stimulus Through a Property Tax Exemption for Business Personal Property and, in Connection Therewith, Enacting the “Save Colorado Jobs Act.”
  • Sponsored by Rep. Chris Holbert and Sen. Mark Scheffel. The bill changes the caps for statutory business incentive agreements for counties, municipalities, and special districts.
  • HB 12-1169: Concerning a Clarification of the Circumstances Under Which Voting to Elect Leadership of a Public Body May be Held by Secret Ballot in Accordance with the State Open Meetings Law.
  • Sponsored by Rep. Bob Gardner and Sen. Greg Brophy. The bill amends the state’s open meetings law to prohibit public bodies from taking certain actions by secret ballot unless they are in full compliance with the State Open Meetings Law.
  • HB 12-1249: Concerning the Manner in Which Tobacco Litigation Settlement Monies are Allocated to the State Auditor’s Office for the Costs of Conducting Program Reviews and Evaluations of the Performance of Tobacco Settlement Programs.
  • Sponsored by Rep. Cheri Gerou and Sen. Pat Steadman. The bill, which was recommended by the Joint Budget Committee, changes the funding allocations for tobacco Master Settlement Agreement funds.

For a full list of bills signed into law by Governor Hickenlooper on March 24, click here.

Governor Hickenlooper also signed seventeen bills into law on Thursday, March 22, 2012. Five of those bills are summarized here; for a complete list, click here.

  • HB 12-1033: Concerning Conditions on the Authority of the Director of the Division of Workers’ Compensation to Impose Administrative Fines as a Result of Compliance Audits Finding Instances of Late Reporting of Injuries Under the “Workers’ Compensation Act of Colorado.”
  • Sponsored by Rep. Spencer Swalm and Sen. Linda Newell. The bill restricts the circumstances in which the Director of the Division of Workers’ Compensation can inpose a fine for non-reporting or late reporting of industrial injuries.
  • HB 12-1047: Concerning the Waiver of Non-Safety Licensing Standards for Kinship Foster Care.
  • Sponsored by Rep. John Kefalas and Sen. Linda Newell. The bill allows county departments of social services to waive certain non-safety licensing requirements for kinship foster care. Previously, the state Department of Human Services had this waiver power, but it was rarely exercised due to the fact that most children are removed under emergency circumstances and there generally is not time to obtain a state waiver prior to placement.
  • HB 12-1074: Concerning Access to Data to Assist the Courts in Overseeing Persons Appointed to Manage the Affairs of Persons Under Disability.
  • Sponsored by Rep. Jim Kerr and Sen. Steve King. The bill allows a court to access data maintained by state agencies in order to contact guardians and conservators who have failed to file reports, as long as the courts keep the personal information private.
  • SB 12-024: Concerning the Obligations of a Residential Nonprofit Corporation to its Residential Members and, In Connection Therewith, Clarifying Open Meeting Provisions and Limiting the Conditions Under Which the Corporation Must Refund Moneys Paid by a Residential Member.
  • Sponsored by Sen. Ted Harvey and Rep. Chris Holbert. The bill specifies that residential membership fees for nonprofit corporations must only be refunded when the membership is transferred, and clarifies that all members must receive notice and be allowed to attend meetings whenever final action will be taken on the board’s behalf.
  • SB 12-097: Concerning a Simplified Procedure for the Adjudication of Certain Changes of the Points of Diversion of Water Rights.
  • Sponsored by Sen. Mary Hodge and Rep. Jerry Sonnenberg. The bill sets forth a simplified procedure for applications to change a point of diversion of water rights. The bill creates a presumption that there will not be a change in the amount of decreed water rights, which may be challenged in court.

For a complete list of legislation signed into law by Governor Hickenlooper on March 22, click here.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

 

 

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e-Legislative Report: Week Eleven, March 26, 2012

March 27, 2012 By Leave a Comment

In this week’s Legislative Video Update, Michael discusses discusses how the Colorado Bar Association’s Legislative Policy Committee played King Solomon with the juvenile direct file bill, improvements to the Secretary of State’s business filing system, and the state’s projected increased revenues for its budget.

From the CBA Legislative Policy Committee

After a well deserved break from the action on March 16, the Legislative Policy Committee met on Friday, March 23 and took up two bills:

HB 12-1271 – the Juvenile Direct File bill
The LPC played King Solomon and developed a measured position for the Bar Association on HB 1271 – the Juvenile Direct File bill. (See full description of the bill here.) The LPC voted to authorize the Juvenile Law Section to support the bill in the name of the Juvenile Law Section only. This is permitted within the guidelines for the Legislative Policy Committee. This position was developed to respect the natural divide within the Criminal Law section where prosecutors and defense attorneys are divided on the bill. The bill is scheduled to be heard by the Judiciary Committee on Monday at 1:30 p.m. in the big committee room at the Capitol – the Old Supreme Court Chamber.

SB 12-123 – Enhance Secretary of State On-Line Filing System
The LPC also voted to support SB 123 – Enhance Secretary of State On-Line Filing System. The bill contemplates improvements to the Business Filing System including enhancements to user accounts, registered agents, record management, certifications, and better search functionality. The Business Law Section sought the approval for support. The bill is caught up in the Appropriations Committee as the Joint Budget Committee moves closer to introducing a balanced budget.

Click here to read the full e-Legislative Report.

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HB 12-1226: Addition of Surcharge to Crimes Against At-Risk Individuals to be Allocated to New Surcharge Fund

March 16, 2012 By Leave a Comment

On February 6, 2012, Rep. Mark Barker and Sen. Irene Aguilar introduced HB 12-1226 – Concerning a Surcharge on Persons Convicted of Crimes Against At-Risk Persons, and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill imposes a surcharge on persons convicted of crimes against at-risk adults and at-risk juveniles. Once collected, the surcharge is transferred to the crimes against at-risk persons surcharge fund. The state office on aging shall distribute moneys from the fund to a fiscal agent who will oversee the award of moneys to programs that provide respite services for caregivers of at-risk adults or at-risk juveniles. Programs receiving moneys from the fund must comply with provisions concerning the use of funds and reporting requirements.

The court is permitted to waive some or the entire surcharge if the person convicted of the crime is indigent or unable to pay the surcharge. The surcharge applies to offenses committed on or after July 1, 2012. The bill passed 2nd Reading on Friday, March 9.

Since this summary, the bill passed the Third Reading in the House.

Summaries of other featured bills can be found here.

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Colorado Court of Appeals: Father’s Right to Counsel Violated

March 5, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People in the Interest of R.D., and Concerning K.L. on March 1, 2012.

Dependency and Neglect—Termination—Parental Rights—Due Process—Right to Counsel—Clear and Convincing Evidence.

In this dependency and neglect case, father appealed from the judgment terminating the parent–child relationship between him and his children, R.D. and R.D. Mother also appealed from the judgment terminating the parent–child relationship between her and her children, R.D., R.D., C.L., and D.L. The judgment was vacated and the case was remanded as to father. The judgment was affirmed as to mother.

Father contended that the trial court violated his statutory and due process rights to counsel when it prohibited his attorney from participating on his behalf and entered default against him on the first day of the termination hearing and sua sponte allowed his counsel to withdraw on the second day of the hearing. In all dependency and neglect proceedings, a parent possesses the legal right to be represented by counsel at every stage of the proceedings. Here, after commencing the termination hearing, in the absence of father but with his counsel present and participating, the trial court found father in default and granted the motion to terminate his parental rights. It also indicated on the first day of the hearing that it was dismissing his counsel, over her objection. The court proceeded with day one of the termination hearing without father or his counsel present. On the second day of the hearing, the court allowed father to participate, but without the assistance of counsel. No statutory exception exists here to permit such a deprivation of this right. Accordingly, the trial court violated CRS §§ 19-3-202(1) and -602(2) when it deprived father of his right to the assistance of counsel during substantial parts of the termination hearing.This constituted reversible error per se.

Mother contended that the judgment terminating her parental rights was not supported by clear and convincing evidence. The overwhelming evidence, however, supports the trial court’s findings that mother continued to demonstrate the same behaviors identified in the treatment plan, including a “strange absence of emotional attachment.” Further, despite mother’s claims of progress, the evidence showed that her issues were chronic. Both mother’s therapist and the caseworker testified that she would not be able to safely parent within a reasonable time. Accordingly, the termination of mother’s parental rights was supported by clear and convincing evidence.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.

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