May 4, 2015

Bills Regarding Oversight of CFIs, Electronic Benefits Card Transfer, and Promoting Water Conservation in Land Planning Signed

legislationOn Friday, May 1, 2015, Governor Hickenlooper signed 30 bills into law. To date, the governor has signed 176 bills into law. The bills signed on May 1 are summarized here.

  • HB 15-1153 – Concerning Oversight of Child and Family Investigators, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Dave Young and Sen. Pat Steadman. The bill consolidates the oversight of all CFIs into the Office of the State Court Administrator.
  • HB 15-1255 – Concerning the Enforcement of the Prohibited Use of Electronic Benefits Transfer Cards at Certain Locations, by Reps. Timothy Dore & Dan Pabon and Sens. Kevin Grantham & Cheri Jahn. The bill requires periodic reporting of the use of electronic benefits cards at prohibited locations and adds marijuana retailers to the list of prohibited locations.
  • HB 15-1294 – Concerning Alignment of State Law Regarding In-State Tuition Classification with the Federal “Veterans Access, Choice, and Accountability Act of 2014″, by Reps. Pete Lee & Jon Keyser and Sens. Nancy Todd & Owen Hill. The bill requires qualified Colorado institutes of higher education to classify eligible veterans as in-state for tuition purposes.
  • SB 15-008 – Concerning the Promotion of Water Conservation in the Land Use Planning Process, and, in Connection Therewith, Making an Appropriation, by Sen. Ellen Roberts and Rep. Ed Vigil. The bill requires the Colorado Water Conservation Board to develop conservation programs for local government land use planners.
  • SB 15-046 – Concerning Reducing the Cost of Attainment of Renewable Energy Standards by Electric Utilities that are not Investor-Owned, and, in Connection Therewith, Allowing Purchases of Electricity from Community Solar Gardens by Cooperative Electric Associations to Qualify as Retail Distributed Generation, by Sen. Kevin Grantham and Rep. Dominick Moreno. The bill reduces the retail distributed generation requirement for cooperative electric associations.
  • SB 15-060 – Concerning the Prevention of Multiple Voter Registrations by the Same Elector, by Sen. Chris Holbert and Rep. Justin Everett. The bill allows the Secretary of State to forward any information from the DMV to the appropriate county clerk for the purpose of updating voter registration information.
  • SB 15-065 – Concerning a Prohibition on the Use of Public Electronic Benefits Transfer Services at Certain Establishments, by Sen. Vicki Marble and Rep. Dan Nordberg. The bill prohibits recipients of electronic benefits transfer cards from using them at adult entertainment facilities or marijuana establishments.
  • SB 15-085 – Concerning the Expansion of the “Colorado Cottage Foods Act,” and, in Connection Therewith, Increasing the Net Revenue a Producer Can Earn Under the Act, by Sen. Beth Martinez Humenik and Reps. Faith Winter & Perry Buck. The bill allows “cottage food” producers to expand their allowable net revenues.
  • SB 15-106 – Concerning the Continuation of the Regulatory Authority Granted Under the “Barber and Cosmetologist Act,” and, in Connection Therewith, Continuing the Cosmetology Advisory Committee and Implementing the Other Recommendations of the Department of Regulatory Agencies as Contained in the 2014 Sunset Report and Making an Appropriation, by Sen. Laura Woods and Rep. Jeni James Arndt. The bill continues the “Barber and Cosmetologist Act” and enacts recommendations from the sunset review committee.
  • SB 15-122 – Concerning the Continuation of the Regulation of Massage Parlors, and, in Connection Therewith, Repealing the Regulation of Massage Parlors, by Sen. Linda Newell and Rep. Dominick Moreno. The bill limits the ability of local governments to regulate massage parlors.
  • SB 15-178 – Concerning the Continuation of the Colorado Commission for the Deaf and Hard of Hearing, and, in Connection Therewith, Implementing the Recommendations of the 2014 Sunset Report by the Department of Regulatory Agencies, by Sen. Linda Newell and Rep. Jessie Danielson. The bill continues the Colorado Commission for the Deaf and Hard of Hearing and implements recommendations of the sunset review committee.
  • SB 15-182 – Concerning Allowing the Department of Corrections to Transfer Certain Offenders to the Youthful Offender System to Participate in Age-Appropriate Programs, by Sens. Leroy Garcia & Larry Crowder and Reps. Clarice Navarro & Daneya Esgar. The bill allows the Department of Corrections to transfer offenders aged 24 or younger into or out of the Youthful Offender System.
  • SB 15-193 – Concerning the Consolidation of Two Reports that the Statewide Internet Portal Authority is Required to Submit to the Members of the General Assembly, by Sens. Patrick Neville & Tim Neville and Reps. Jack Tate & Max Tyler. The bill combines the reporting requirements of the Statewide Internet Portal Authority into one written report submitted to various legislative committees.
  • SB 15-194 – Concerning the Board of Directors of the Statewide Internet Portal Authority, by Sens. Patrick Neville & Tim Neville and Reps. Jack Tate & Max Tyler. The bill allows executive directors of executive branch agencies to select a designee to serve on the board in their stead, but designees may not serve as the board chair.
  • SB 15-198 – Concerning Modifications to the Colorado Water Conservation Board’s Fallowing Pilot Program, and, in Connection Therewith, Expanding the Program to Allow an Agricultural Water Right Owner to Lease an Agricultural Water Right for Temporary Agricultural, Environmental, Industrial, or Recreational Use, by Sen. Larry Crowder and Rep. Ed Vigil. The bill allows an agricultural water right owner to lease its right for temporary agricultural, environmental, industrial, or recreational use while the agricultural land goes fallow.
  • SB 15-235 – Concerning Increasing the Amount that the General Assembly may Appropriate for the Child Nutrition School Lunch Protection Program, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Millie Hamner. The bill increases the appropriation for the state school lunch program.
  • SB 15-236 – Concerning the Reorganization of Funds Expended by the State Historical Society, Sen. Kevin Grantham and Rep. Bob Rankin. The bill creates two separate subaccounts in the State Historical Fund.
  • SB 15-237 – Concerning Calculations Relating to Appropriations to Institutions of Higher Education, and, in Connection Therewith, Clarifying Calculations Required Pursuant to Sections 23-18-304 and 23-18-305, Colorado Revised Statutes, and Delaying Performance Funding Calculations Pursuant to Section 23-1-108, Colorado Revised Statutes, by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes technical clarifications to definitions used in higher education funding formulas.
  • SB 15-238 – Concerning Allowable Uses of Moneys in the General Fund Exempt Account that are Designated to Benefit Students Attending Institutions of Higher Education, by Sen. Pat Steadman & Rep. Millie Hamner. The bill adds specific uses to the list of qualified higher education appropriations.
  • SB 15-240 – Concerning a Funding Formula for Independent Living Centers, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Dave Young. The bill requires DHS to promulgate a rule regarding funding for independent living centers and requires base funding of $600,000 to each center.
  • SB 15-241 – Concerning Collaborative Management of Multi-Agency Services Provided to Children and Families, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Dave Young. The bill allows moneys from the general fund to be allocated to the Collaborative Management Fund in the DHS and makes changes to the program for collaborative management.
  • SB 15-242 – Concerning an Allocation in Addition to the Child Welfare Block Grant to Counties for the Purpose of Hiring New Child Welfare Staff, and, in Connection Therewith, Making an Appropriation, by Sen. Kevin Grantham and Rep. Dave Young. The bill creates a new allocation for distributing funds to counties to hire additional child welfare staff.
  • SB 15-243 – Concerning a Prohibition on the Transfer of State-Operated Beds Under the Waiver for Home- and Community-Based Services for Individuals with Intellectual and Developmental Disabilities, by Sen. Kent Lambert and Rep. Dave Young. The bill prohibits DHS from selling or closing state-operated centers with beds for individuals with disabilities.
  • SB 15-244 – Concerning the Transfer of Moneys to Offset the Federal Government’s Recoupment of Mineral Lease Payments to the State, by Sen. Kevin Grantham and Rep. Bob Rankin. The bill transfers moneys from the General Fund for three fiscal years to offset recoupment of federal mineral lease moneys.
  • SB 15-245 – Concerning the Provision of State Funding for Natural Hazard Mapping, by Sen. Kevin Grantham and Rep. Dave Young. The bill creates a three-year program for state mapping of natural hazards.
  • SB 15-246 – Concerning Modifications to Accommodate Certain Statewide Financial Information Technology Systems in the Department of Personnel, by Sen. Kent Lambert and Rep. Bob Rankin. The bill requires the Department of Personnel and Administration to develop a method to bill users of its financial IT systems for the full cost of usage.
  • SB 15-248Concerning the Repeal of the State Facility Security Fund, by Sen. Kent Lambert and Rep. Millie Hamner. The bill repeals the state facility security fund, because there have been no grants made or deposits to the fund since its inception.
  • SB 15-249 – Concerning a Transfer from the Marijuana Tax Cash Fund to the General Fund, by Sen. Kent Lambert and Rep. Millie Hamner. The bill increases the transfer of moneys from the marijuana tax cash fund to the General Fund.
  • SB 15-251 – Concerning the Exclusion of Appropriations for Real Property Lease-Purchase Payments from the Basis for the Calculation of the General Fund Reserve, by Sen. Kent Lambert and Rep. Millie Hamner. The bill exempts payments for certificates of participation in lease-purchase agreements from the General Fund for purposes of calculating reserves.
  • SB 15-255 – Concerning the Deposit of Twenty Million Dollars of State Severance Tax Revenues in the General Fund, by Sen. Kent Lambert and Rep. Millie Hamner. The bill diverts money from the state severance tax fund to the General Fund.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

The Colorado Lawyer: Abraham Lincoln—150 Years Later

Editor’s Note: This article originally appeared in the April 2015 issue of The Colorado Lawyer. Reprinted with permission.

By Charles F. Garciacharley garcia

Where justice is denied, where poverty is enforced, where
ignorance prevails, and where any one class is made to feel
that society is an organized conspiracy to oppress, rob and
degrade them, neither persons or property will be safe.

—Frederick Douglass, Emancipation Celebration
Washington, DC, 1886

April 15, 2015 marks the 150th anniversary of President Abraham Lincoln’s death. Lincoln served as U.S. President for little more than one term, and during that period, he worked to make all people of this country equal. He wrote the Emancipation Proclamation in 1862, declaring that “all persons held as slaves within any State or designated part of a state . . . shall be . . . forever free.” On April 4, 1864, the Thirteenth Amendment to the U.S. Constitution abolishing slavery passed the Senate, and on January 31, 1865, it passed the House of Representatives. It was ratified after Lincoln’s death on December 6, 1865.

Mindful of this powerful history, I began to reflect on recent events involving racial conflict occurring in the United States, including in Colorado, and to contemplate how far we have come in 150 years. We should not shy away from discussing racial conflict and related social and legal injustices simply because it is a difficult and sensitive subject for which there may be no single or immediate solution. I firmly believe that it is our duty as members of this honorable profession to reflect on the inescapable fact that people of color are over-criminalized, and constructively work toward reform. I hope this Message advances the discussion of the role we must play to ensure equality for all.

Atticus Revisted

On July 11, 1960, To Kill a Mockingbird by Harper Lee was published. Lee attended law school at the University of Alabama but chose to pursue a career in writing instead of the law. (She did receive an Honorary Special Membership to the Alabama Bar in 2008.[1])

To Kill a Mockingbird was published during a time of much racial tension in the United States. For example, in 1955, the black teenager Emmett Till was murdered in Mississippi for allegedly flirting with a white woman, and the Montgomery bus boycott of 1955 occurred after Rosa Parks was arrested for not giving up her seat on a bus to a white man. The book has been hailed by many in the civil rights movement for moving forward the dialogue on race and justice. For example, former Atlanta Mayor Andrew Young, who was the first African American since Reconstruction to represent Georgia in the U.S. Congress, stated that Lee’s book “inspired hope in the midst of chaos and confusion.”[2]

Searching for Answers

President Abraham Lincoln sought to bring racial justice to this country, and Harper Lee sought to bring social awareness to the fact that ninety-five years after the Emancipation Proclamation, equality was not a reality. Now, 150 years after Lincoln’s death and the ratification of the Thirteenth Amendment, there may be some sense of legal equality on the books, but equality across society is not a reality, and that is evident in the criminal justice system. For example, according to information as recent as November 2014:

Arrest rates are hard to come by, but African Americans are arrested at rates far exceeding their white counterparts. In many cities, the rate is 10 times higher and in some, it is as much as 26 times higher.[3]

According to the Bureau of Justice Statistics, “African American males are incarcerated at a rate 6.7 times higher, and Hispanic males 2.5 times higher, than their white non-Hispanic counterparts.”[4]

On February 22, 2015, when singer–songwriter John Legend accepted the Oscar for co-writing the song “Glory” from the film Selma, he commented, “There are more black men under correctional control today than there were under slavery in 1850.” The events highlighted by the death of a young African American man in Ferguson, Missouri have again focused national attention on the issue of race and justice in America. Similar events in Colorado have spurred protests in recent months. As citizens and as lawyers, we are striving to find answers to the questions raised by these events.

In December 2014, the Sam Cary Bar Association, in conjunction with the CBA and other bar associations, presented a program entitled “Community Forum—Waiting to Exhale: A Conversation About Race and Our Justice System.” The Forum was a panel discussion on long-ignored race-related issues brought to light by the events of Ferguson. Questions raised at the Forum focused largely on the manner in which our three branches of government should address these issues and the degree to which it is the responsibility of our justice system to rectify the unfair, unequitable imposition of punishment. Forum presenters focused on the Denver Police and Sheriff’s Departments, but the discussion also ventured into the role of our courts and legislature in addressing issues that ranged from excessive force by law enforcement to minority overrepresentation in our criminal justice system. The Forum itself provided no easy solutions to the problems raised by the community, but it continued to advance the conversation.

Legislating on Behalf of Children

The prevailing question is what lawyers can do to better address the issues pertaining to racial injustice in our society. It seems everyone has suggestions in these trying times, and one entity that is looking for answers is the Colorado Legislature, where, during the 2015 legislative session, it will be considering a bill dealing with petty tickets for juveniles. This bill began as a recommendation from the Juvenile Justice Task Force of the Colorado Criminal and Juvenile Justice Commission. The intention of the bill is to find a way to keep our children from becoming part of the criminal justice system. The belief is that once a child becomes part of the criminal justice system, it is very difficult to remove him or her from the system.

Tackling the overrepresentation of people of color in our criminal justice system begins with how we address the treatment of our children. It is a fact that our juvenile courts are overcrowded. The number of people of color adjudicated in those courts does not reflect our society as a community. We must begin our search for answers by looking at our courts and determining how our children reach the courts in the first place. This bill is a start to addressing the bigger issue of racial injustice.

The Challenge to the Justice System

We must begin to collaborate to solve the problems of over-criminalization, mass imprisonment, and minority overrepresentation in our criminal justice system. Although most people may agree on what the bigger problems are, they may differ on the causes. This should not stop us from working with our legislators, governors, mayors, judges, prosecutors, and defense attorneys to find solutions.

> A New York Times column on February 18, 2015 stated:

Usually bitter adversairies, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken. Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-based liberal issues group are coming together to back a new organization called the Coalition for Public Safety. The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives.[5]

> In her book The New Jim Crow,[6] Michelle Alexander focuses on how the enactment and enforcement of drug laws have created a society in our country where we legalize discrimination. She argues in the book that the U.S. criminal justice system functions as a contemporary system of racial control, and writes that “we have not ended racial caste in America; we have merely redesigned it.” The United States currently represents 5% of the world population but represents 25% of the world’s incarcerated population.[7] In her January 2012 appearance on the National Public Radio program Fresh Air, Alexander told host Dave Davies that “[p]eople are swept into the criminal justice system—particularly in poor communities of color—at very early ages.”[8]

> George F. Will wrote about the death of Eric Garner in New York for the Washington Post Writers Group (WPWG). On December 14, 2014, when talking about the death of Eric Garner in New York for selling illegal cigarettes, Will wrote:

Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles. Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.[9]

> Professor Stephen L. Carter of Yale Law School has stated that [o]vercriminalization matters [because] making an offense criminal also means that the police will go armed to enforce it. However, today’s political system takes bizarre delight in creating new crimes for enforcement.[10]

> George Will states further in his WPWG article: The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism.[11]

> A group known as Right on Crime,[12] a project of the Texas Public Policy Foundation and in cooperation with the Justice Fellowship, has brought together former U.S. Speaker of the House Newt Gingrich, political advocate Grover Norquist, Texas Governor Rick Perry, and others to examine the causes of mass incarceration in Texas and across the United States. A look at Right on Crime’s website, www.rightoncrime.com, will lead you to articles on attempts at criminal justice reform in such states as Ohio, Georgia, and West Virginia.

The Rule of Law—The Guiding Premise to Repairing Injustices

Racial injustice exists outside the criminal justice system, as well. Inequalities in our educational system, in the employment arena, and in housing serve as breeding grounds for racial injustice in the criminal justice system. We need to constantly work at airing and addressing the problems that exist in all areas of society. At the same time, we need to address the reasons behind the staggering rate of incarceration of people of color and the poor in our country. The answer to societal injustices does not rest in any one of the three branches of our government, but in all three.

Our legislators need to address over-criminalization, mass incarceration, and overrepresentation of people of color in the criminal justice system. Legislators around the country are now rushing to enact laws around police body cameras, excessive force laws, and grand juries for police misconduct. These are perhaps good ideas, but they may be no more than Band-Aids for a much larger wound in our society.

Our Executive Branch needs to examine the enforcement of our laws to find a way to enforce them without doing harm to society. Many of the issues are particular to the local community, and this is where change needs to begin. We need to take a new approach to law enforcement, especially as it relates to people of color. It is the job of our mayors, city councils, and county commissioners to examine our methodology of law enforcement and assure the words “Serve and Protect” have meaning.

Finally, the third branch of government, and the one we lawyers know best—the Judicial Branch—plays a vital role in questioning and responding to the many issues raised here. The acts of our legislators and of our Executive Branch will eventually be tested in our courts. The criminal justice system is unworkable if it is not vetted in our courts.

There is one thing that is paramount in effecting change in our criminal justice system, and that is adherence to the rule of law. Many believe—and rightly so—that the rich and poor are treated differently in our criminal justice system. This has to change.

The rule of law is simple: the same laws must apply to each and every one of us. It is the duty of our courts to look out into the audience of the courtroom and the cells of our jails and ask why there is such a broad discrepancy among those who are criminalized. Colorado comprises district, county, and municipal courts. The county courts handle misdemeanor criminal matters and are frequently referred to as “our people’s courts.” The municipal courts handle municipal ordinance violations. These are the cases that are the subject of George Will’s reference to the “broken windows” method of police oversight of our communities. These are the courts Michelle Alexander speaks of when she talks about sweeping people into the criminal justice system. Once they are swept in even at the municipal level, they become branded for life, thus creating hurdles to employment, housing, and other opportunities that lead to the vicious circle that keeps them in the criminal justice system.

Conclusion

As stated in The New York Times article, in writing about the Koch brothers and the center coalition:

With the huge costs to the public of an expanding 2.2 million person prison population drawing interest from the right and the conviction that the system is unfair and incarcerating too many drug and nonviolent offenders driving those on the left, the new coalition is the most recent example of ideological opposites joining together.[13]

We must continue to correct inequality in this country and we can begin by bringing equality to the justice system. Atticus Finch stated in his closing argument:

Now, gentlemen, in this country, our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and our jury system—that’s no ideal to me. That is a living, working reality.[14]

I am an idealist, and I firmly believe our courts are the great levelers. I also believe that we as lawyers and citizens, together with our communities, must begin the difficult work of collaboration, because the courts are not the only solution. President Lincoln stated in the Gettysburg Address that “all men are created equal.” Our Declaration of Independence also states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. . . .” We must reexamine what has occurred during the past 150 years and constructively work toward improving the direction we take toward a better future.


Notes

[1] “Alabama Supreme Court Awards Harper Lee Honorary Special Membership,” The Alabama Lawyer 252 (July 2008), www.alabar.org/assets/uploads/2014/08/Lawyer-July-2008_Web.pdf.

[2] See, e.g., American Masters: Harper Lee: Hey Boo (2010), www.pbs.org/wnet/americanmasters/episodes/harper-lee-hey-boo/about-the-documentary/1972.

[3] Heath, “Racial Gap in U.S. Arrest rates: ‘Staggering disparity,’”USA Today (Nov. 19, 2014), www.usatoday.com/story/news/nation/2014/11/18/ferguson-black-arrest-rates/19043207.

[4] See West, “Prison Inmates at Midyear 2009—Statistical Tables” (June 2010),www.bjs.gov/content/pub/pdf/pim09st.pdf.

[5] See Hulse, “Unlikely Cause Unites the Left and the Right: Justice Reform,” The New York Times(Feb. 18, 2015), www.nytimes.com/2015/02/19/us/politics/unlikely-cause-unites-the-left-and-the-right-justice-reform.html?_r=1.

[6] Alexander, The New Jim Crow (New Press, 2010).

[7] See NAACP, “Criminal Justice Fact Sheet,” www.naacp.org/pages/criminal-justice-fact-sheet. See also Ehrenfreund, “There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery,” The Washington Post (Feb. 23, 2015), www.washingtonpost.com/blogs/wonkblog/wp/2015/02/23/theres-a-disturbing-truth-to-john-legends-oscar-statement-about-prisons-and-slavery/?tid=sm_tw.

[8] See “Legal Scholar: Jim Crow Still Exists in American,” Fresh Air (NPR Radio, Jan. 16, 2012), www.npr.org/2012/01/16/145175694/legal-scholar-jim-crow-still-exists-in-america.

[9] Will, “Eric Garner, criminalized to death,” The Washington Post (Dec. 10, 2014), www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html.

[10] Carter, “Law puts us all in same danger as Eric Garner,” Bloomberg News (Dec. 14, 2014), www.commercialappeal.com/opinion/national-and-world-commentary/stephen-l-carter-law-puts-us-all-in-same-danger-as-eric-garner_29242740.

[11] Will, supra note 9.

[12] See www.rightoncrime.com. See also Denver Post Editorial Board, “Common ground on criminal justice reform,” The Denver Post (Feb. 20, 2015), www.denverpost.com/editorials/ci_27568775/common-ground-criminal-justice-reform?source=infinite. See also Hulse, supra note 5.

[13] Hulse, supra note 5.

[14] Lee, To Kill a Mockingbird (Grand Central Publishing, 1960).

Charles F. Garcia, Esq., CBA President, is a graduate of the University of Wisconsin. He worked in international tax as a CPA for Arthur Andersen & Co. and Price Waterhouse for ten years. He then went on to graduate from the University of Denver College Of Law and joined the Office of the Colorado State Public Defender, where he practiced as a criminal defense trial attorney for twenty-five years. He is an Adjunct Professor of Law at the University Of Denver Sturm College of Law and a teacher for the National Institute of Trial Advocacy. Charles retired in 2007 as the Office Head for the Denver Office of the Colorado State Public Defender. Charles was a campaign policy advisor and a co-chair to the transition team for Governor Hickenlooper and is currently Special Counsel to Governor Hickenlooper. In 2011, Charles came out of retirement to be appointed by Mayor Vidal as the Manager of Safety for the City and County of Denver.

Budget Bill and Appropriations Bills Signed by Governor Hickenlooper

On Friday, April 24, 2015, Governor Hickenlooper signed eight bills into law, including the 2015-2016 fiscal year Long Appropriations Bill. To date, the governor has signed 146 bills into law this legislative session. The bills signed Friday are summarized here.

  • SB 15-234FY 2015-16 Long Appropriations Bill, by Sen. Kent Lambert and Rep. Millie Hamner. The bill sets the state budget for the 2015-16 fiscal year. A summary of some of the budget items is available here.
  • HB 15-1266 – Concerning the Information Technology Budget Request Process, by Rep. Bob Rankin and Sen. Kent Lambert. The bill modifies the procedure for IT budget requests from state agencies and institutes of higher education.
  • HB 15-1149 – Concerning the Respondent Parents’ Counsel, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Millie Hamner and Sen. Kent Lambert. The bill pushes the start date for the judicial department’s development of an Office of Respondent Parents’ Counsel to July 1, 2016, and creates a nine-member governing commission for that office.
  • HB 15-1269 – Concerning the Transfer of Persons Who Cannot Be Safely Confined in their Current Facility Between a Department of Corrections Facility and a Facility Operated by the Department of Human Services, by Reps. Beth McCann & Joann Ginal and Sen. Kevin Grantham. The bill clarifies procedures for the transfer of inmates from a DOC facility to a DHS facility, and specifies that DHS may not transfer non-offenders to the DOC.
  • HB 15-1295 – Concerning Inspections Conducted by Institutes of Higher Education, by Reps. Jovan Melton & Kevin Priola and Sen. Chris Holbert. The bill enlarges the scope of work that may be overseen by building departments at institutes of higher education.
  • HB 15-1042 – Concerning Requiring Presentence Reports to Include a Statement Concerning a Defendant’s Eligibility for Release from Incarceration, by Rep. Mike Foote and Sen. John Cooke. The bill requires that presentence reports prepared for inmates sentenced for felonies occurring after July 1, 2004, include a statement about how long the defendant is expected to be incarcerated.
  • HB 15-1072 – Concerning Harassment Through an Interactive Electronic Medium, by Rep. Rhonda Fields and Sen. Linda Newell. The bill modifies the existing harassment statute to include harassment through electronic media.
  • HB 15-1204 – Concerning the Creation of a Distillery Pub License, by Rep. Dan Pabon and Sen. Andy Kerr. The bill creates a new liquor license for spiritous distilleries so that they may operate a pub that serves alcoholic beverages on the premises.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

e-Legislative Report: April 22, 2015

legislationCBA Legislative Policy Committee

For readers 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 on requests from the various sections and committees of the Bar Association.

The following bills were discussed at the LPC last week. Other bills of interest from that agenda are tracked and updated below.

HB 15-1327—Limit Proxy Marriages To Military & Contractors
Sponsors: Rep. Ginal (D), Rep. Roupe (R) & Sen. Cooke (R), Sen. Garcia (D)
The LPC reviewed this legislation (which had passed through its first committee hearing on Thursday, April 16). The consensus of Bar members and sections weighing in was that this bill was an important tool to fight trafficking and to restrain the statute to its original intent (marriage to military personnel and related contactors). The Bar will work with the sponsors to secure passage as the bill moves forward.

HB 15-1359—Savings Program For Persons With Disabilities
Sponsors: Rep. Danielson (D), Rep. Landgraf (R) & Sen. Kefalas (D), Sen. Martinez Humenik (R)
The LPC voted to support this legislation at the request and analysis of the Elder Law Section. The bill authorizes the Department of Higher Education to set up a 529 like savings program for individuals with disabilities—and parallels work that the section was already doing. This bill is supported by the department, and has a favorable path at this point in the session.

Bills that the LPC is monitoring, watching or working on can be found at this link on Priority Bill Track.

At the Capitol—Week of April 10

HB 15-1218—No Contact With Defense-initiated Victim Outreach 
We reached out to the sponsors to communicate that the CBA supported the American Bar Association’s position on this (and similar bills in other states) Bill was amended and made better. No LPC action needed.

HB 15-1285—Law Enforcement Use Of Body-worn Cameras 

HB 15-1286—Police Misconduct Court Require Prosecution

HB 15-1290—Stop Police Interference Cop Incident Recording
The CBA supports these three bills and they are moving forward in the legislative process. The LPC discussed and reviewed the “police package” of legislation, ultimately taking a position in support of these bills as aligned with the advancement of the practice of law.

SB 15-129—Preserving Parent-Child relationships 
This bill was heard in committee on April 16. The bar, through its Family Law section and the LPC was opposed to the bill insofar as it turned the long standing “best interest of the child standard” on its head—substituting the rights of divorcing parents as the preeminent consideration in awarding parenting time. There wasa great deal of testimony (26 opponents and 17 proponents), and after 7 hours of testimony it was PI’d 9 to 4. The Bar was a key opponent and our testimony was very persuasive.

SB 15-181—Immediate Appeal Order Appointing Receiver
This bill has been calendared in the House. We continue to work to oppose the bill notwithstanding the many amendments that have carved out various constituencies and interests. The position of the Bar is that this is not well crafted legislation—and the wrong approach to addressing a legitimate problem.

New Bill of Interest

There are several new bills introduced each week of the session (even with only two weeks left). This is one that each lawyer will want to be aware of:

HB 15-1371—Exempt Lawyer Trust Acct Funds From Unclaimed Prop
Sponsors: Rep. Pabon (D), Rep. Willett (R) & Sen. Johnston

The bill creates an exemption from the “Unclaimed Property Act” for funds held in Colorado lawyer trust account foundation trust accounts, commonly known as lawyer COLTAF trust accounts.

Colorado Court of Appeals: Trial Court Appropriately Declined Jurisdiction Under UCCJEA

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities Concerning B.C.B., a Child on Thursday, April 9, 2015.

Jurisdiction Under the Uniform Child-Custody Jurisdiction and Enforcement Act.

Mother and father, who were not married, are the parents of B.C.B., born in Idaho in December 2012. The couple moved to Colorado with B.C.B. in July 2013. In August 2013, mother and B.C.B. traveled to Massachusetts, where mother’s extended family lived. Mother testified at the hearing to determine Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) jurisdiction that she had intended to return to Colorado; however, while in Massachusetts, she decided her relationship with father would not work and therefore did not return.

In September 2013, father petitioned the Colorado district court for an allocation of parental responsibilities. Mother contested jurisdiction and filed a custody action in Massachusetts. The Massachusetts court entered temporary orders granting custody to mother in October 2013.

Following conferral between the Colorado and Massachusetts courts, the Colorado court asserted temporary emergency jurisdiction over B.C.B., ordered mother to return to Colorado with B.C.B., and set a hearing to determine jurisdiction. The Massachusetts court vacated its temporary order and stayed its proceedings pending the Colorado decision on jurisdiction.

The Colorado court determined that (1) Idaho was B.C.B.’s home state under the UCCJEA; (2) neither party wanted Idaho to take jurisdiction; and (3) either Colorado or Massachusetts could exercise jurisdiction, but neither was required to do so. The court then declined its jurisdiction on the basis that Colorado was not the most appropriate forum. Father appealed.

The Court of Appeals applied an abuse of discretion standard in reviewing the trial court’s decision to decline to exercise jurisdiction. The Court held that the child had no home state because neither the parents nor the child lived in Idaho when father filed his petition and the child had not lived in either Colorado or Massachusetts long enough to establish home state jurisdiction. Despite this error by the trial court, it properly proceeded under CRS § 14-13-201(1)(b) to consider whether B.C.B. and his parents had a significant connection with Colorado and whether substantial evidence concerning B.C.B. was located in Colorado. Because the court’s factual findings as to the lack of significant connection with Colorado or of substantial evidence in Colorado were supported by the record, the Court will not disturb them. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant who Violated Conditions of Youthful Offender Sentence Did Not Complete Sentence

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, March 26, 2015.

Youthful Offender System—Revocation—Jurisdiction—Motion for Reconsideration—Evidence.

On April 30, 2007, defendant, a juvenile at the time, pleaded guilty to first-degree assault. He received a sentence of eighteen years in the custody of the Department of Corrections (DOC), suspended pending successful completion of a six-year sentence to Youthful Offender System (YOS). On January 18, 2012, while serving the community supervision portion of his YOS sentence, defendant walked away from his YOS residential center. On March 6, 2012, after an administrative hearing, defendant was found guilty of escape without force. The date defendant’s YOS sentence was set to expire (May 12, 2012) passed without the prosecution filing any documents related to revocation proceedings against defendant in Arapahoe County. The prosecution later moved to revoke defendant’s YOS sentence. The trial court denied the prosecution’s motion for lack of jurisdiction.

On appeal, the People contended that the district court erred when it concluded it did not have jurisdiction to revoke defendant’s YOS sentence. By violating conditions of his YOS sentence before the anticipated completion date, defendant did not successfully complete his YOS sentence. Further, the arrest and custodial status of an offender alleged to have violated the terms and conditions of a YOS sentence toll the discharge date of the YOS sentence pending resolution of the charges. Accordingly, the district court retained jurisdiction to revoke defendant’s YOS sentence and impose the original DOC sentence. The Court of Appeals disapproved those portions of the district court’s orders deciding to the contrary.

However, in its order on the prosecution’s motion to reconsider, the trial court ruled in the alternative that if it retained jurisdiction to revoke defendant’s sentence, it was exercising its discretion to dismiss the revocation proceeding based on the DOC’s failure to comply with the provisions of the YOS statute. Because the district court retained discretion to fashion a remedy it deemed appropriate for the statutory violation, the trial court did not abuse that discretion in determining dismissal was the appropriate remedy.

The People further contended that the district court erred when it refused to consider new evidence attached to their motion for reconsideration. Because the applicable rules of criminal and civil procedure did not allow for the introduction of new evidence and the prosecution failed to establish an extraordinary circumstance entitling it to relief under CRCP 60(b)(5), the district court did not abuse its discretion in denying the prosecution’s motion altogether. The order was affirmed and the ruling was disapproved in part.

Summary and full case available here, courtesy of The Colorado Lawyer.

e-Legislative Report: March 24, 2015

legislationCBA Legislative Policy Committee

For readers 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 on requests from the various sections and committees of the Bar Association.

The following bill was discussed as the only action item taken up at the meeting on Friday, March 20. Other bills of interest from that agenda are tracked and updated below.

HB 15-1272—Timely Filed Claims Not Barred By Laches
Sponsors: Rep. Daneya Esgar (D) & Sen. Chris Holbert (R)
The LPC voted to oppose this bill because Laches is an important equitable defense. Colorado has a long history with the Doctrine of Laches and this bill upsets that balance. We understand the specific nature of the concern addressed in the bill, but the approach to a solution was overbroad. Therefore we voted to oppose HB 1272.

SB 15-069—Repeal Job Protection Civil Rights Enforcement Act
Sponsors: Sen. Laura Woods (R) & Rep. Kevin Priola (R)
The Legislative Policy Committee voted to oppose this bill to maintain a consistent position with the CBA’s position on previous legislation (HB13-1136 which the CBA supported). SB 69 would have reversed the effect of that bill.

HB 15-1292—Resentence Juveniles Life Sentence No Parole
Sponsors: Rep. Daniel Kagan (D)
The LPC voted to support the Juvenile Law Section’s recommendation to support this bill. There was a great deal of discussion. The bill allows for Juveniles who were previously convicted to petition for resentencing. The bill takes into consideration many factors for both victims and offenders.

Bills that the LPC is monitoring, watching or working on can be found at this link on Priority Bill Track.

At the Capitol—Week of March 16

This past week was a slower week for Bar priority bills. A number of bills we are watching and working on have not been scheduled for hearings or debate. We are constantly watching to ensure we are represented and up to date on bills the LPC has taken action on, and expect that this section will be more full after the “Long bill” (the state budget) is passed over the next two weeks.

HB 15-1142—Public Trustee Conduct Electronic Foreclosure Sale
We successfully amended this bill per the Real Estate Sections requirements, working in conjunction with the Denver Public Trustee and Representative McCann.

SB 15-077—Parents Bill of Rights
This bill was Postponed Indefinitely by the House Committee on Public Health Care and Human Services.

New Bills of Interest

The pace of new bill introductions is now slowing down, but there are a few new bills introduced still introduced through the remainder of the session. We will highlight some of the bills we have identified for tracking or monitoring here:

SB 15-200—Private Student Loan Disclosure Requirements
Sponsors: Sen. Andrew Kerr (D) & Sen. Nancy Todd (D)

The bill prohibits a private educational lender, as defined in the bill, from offering gifts to a covered educational institution, as defined in the bill, including public and private institutions of higher education, in exchange for any advantage or consideration related to loan activities or from engaging in revenue sharing. Further, the bill prohibits persons employed at covered educational institutions from receiving anything of value from private educational lenders. The bill makes it unlawful for a private educational lender to impose a fee or penalty on a borrower for early repayment or prepayment of a private education loan and requires a lender to disclose any agreements made with a card issuer or creditor for purposes of marketing a credit card. The bill requires private educational lenders to disclose information to a potential borrower or borrower both at the time of application for a private education loan and at the time of consummation of the loan.

The required disclosures are described in the bill and include, among other disclosures, the interest rate for the loan and adjustments to the rate, potential finance charges and penalties, payment options, an estimate of the total amount for repayment at the interest rate, the possibility of qualifying for federal loans, the terms and conditions of the loan, and that the borrower may cancel the loan, without penalty, within three business days after the date on which the loan is consummated.

SB 15-210—Title Insurance Commission
Sponsors: Sen. Laura Woods (R) & Rep. Jennifer Arndt (D)

The bill creates the title insurance commission (commission). The bill establishes the powers, duties, and functions of the commission and provides for the appointment of the members of the commission. With the exception of rate regulation and licensing, which will continue to be done by the insurance commissioner, the commission participates in the regulation of the title insurance business in Colorado by concurring in rules of the insurance commissioner, proposing rules for approval by the insurance commissioner, and reviewing and concurring in disciplinary actions related to the regulation of the title insurance business. The commission is scheduled to sunset Sept. 1, 2025, subject to continuation after a sunset review as provided by law.

Bill to Add Judge in 12th Judicial District and More Signed

On Friday, March 20, 2015, Governor Hickenlooper signed ten bills into law. To date, he has signed 68 bills into law. The bills signed Friday are summarized here.

  • HB 15-1059 – Concerning the Board of Directors of the Denver Health and Hospital Authority, by Rep. Alec Garnett and Sen. Lucia Guzman. The bill adds two board members to the Denver Health and Hospital Authority board, removes outdated language, and dictates a new process for removing board members.
  • HB 15-1122 – Concerning Limiting Eligibility for Parole, and, in Connection Therewith, Amending Certain Provisions Concerning the Revocation of Parole for Certain Inmates, by Rep. Rhonda Fields and Sen. John Cooke. The bill aligns procedures for parole of offenders under the statute to current DOC practice.
  • HB 15-1029 – Concerning Coverage Under a Health Benefit Plan for Health Care Services Delivered Through Telehealth in Any Area of the State, by Reps. Perry Buck & Joann Ginal and Sens. John Kefalas & Beth Martinez Humenik. The bill requires all health benefit plans in Colorado to provide telemedicine options when telemedicine is considered an equal standard of care.
  • HB 15-1034 – Concerning an Increase in the Number of District Court Judges in the Twelfth Judicial District, and, in Connection Therewith, Making an Appropriation, by Rep. Ed Vigil and Sen. Larry Crowder. The bill adds a district court judge in the Twelfth Judicial District.
  • HB 15-1032 – Concerning the Addition of Licensed Mental Health Professionals as Authorized Providers of Mental Health Services to Minors who are At Least Fifteen Years of Age, by Rep. Jonathan Singer and Sen. Irene Aguilar. The bill expands the definition of qualified mental health providers for involuntarily committed minors to include licensed social workers, licensed professional counselors, and licensed addiction counselors.
  • HB 15-1078 – Concerning Immediate Reporting of Missing Children who are in the Custody of a State Agency to Law Enforcement for Inclusion in National Crime Databases, by Reps. Dan Nordberg & Beth McCann and Sens. Cheri Jahn & Laura Woods. The bill requires reporting of missing children to law enforcement within 24 hours of noticing the child is missing when the child is in the custody of county or state departments of human services.
  • HB 15-1174 – Concerning the Confidentiality of Personal Information for Participants in the Address Confidentiality Program and, in Connection Therewith, Protecting Victims of Domestic Violence, Sexual Assault, and Stalking, by Rep. Terri Carver and Sen. Laura Woods. The bill prevents the state from knowingly disclosing the address of a person in the address confidentiality program, including unique identifying information about his or her residential, work, or school address.
  • HB 15-1070 – Concerning Changes to the Crime Profits Distribution Statute, by Rep. John Buckner and Sen. Beth Martinez Humenik. The bill makes several changes regarding the distribution of crime profits.
  • HB 15-1094 – Concerning Restorative Justice, by Rep. Pete Lee and Sens. John Cooke & Linda Newell. The bill makes several changes to the judicial department’s restorative justice programs, including adding members, allowing gifts to support restorative justice, and expanding eligibility to juveniles.
  • HB 15-1060 – Concerning Protection Orders in Sex Offense Cases, by Rep.  Millie Hamner and Sen. John Cooke. The bill requires a defendant in a sexual offense case to acknowledge any protection orders in court and in writing prior to release on bond.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Bills Regarding Trustee Notification, Recorded Documents, and More Signed

On Wednesday, March 18, 2015, Governor Hickenlooper signed nine bills into law. Governor Hickenlooper has now signed 58 bills this legislative session. The bills signed Wednesday are summarized here.

  • HB 15-1010 – Concerning a Presumption that a Trustee has Notified a Beneficiary when the Trustee has Adopted a Beneficiary Notification Procedure, and, in Connection Therewith, Clarifying that a Trustee May Deliver Information to Beneficiaries Electronically, by Reps. Tracy Kraft-Tharp & Dan Nordberg and Sen. Cheri Jahn. The bill creates a presumption that a beneficiary of a trust has received notifications about the status of a trust when the trustee has notification procedures in place, and also allows electronic notifications for beneficiaries who elect electronic notifications.
  • HB 15-1022 – Concerning Juveniles Charged with Certain Minor Offenses, by Rep. Beth McCann and Sens. Pat Steadman & John Cooke. The bill allows police officers to issue petty offense tickets to juveniles if certain conditions are met.
  • HB 15-1028 – Concerning Repeal of the Mercantile Licensing Standards, by Rep. Jon Keyser and Sen. Cheri Jahn. The bill repeals licensing requirements for merchants because the requirements are not enforced.
  • HB 15-1062 – Concerning Increasing the Penalties for Persons who Engage in Animal Fighting, by Reps. Jovan Melton & Steve Lebsock and Sens. David Balmer & Jerry Sonnenberg. The bill requires mandatory fines for convictions for animal fighting.
  • HB 15-1064 – Concerning Access to the Safe Deposit Box of a Decedent, and, in Connection Therewith, Limiting the Obligations of Custodians who Access the Box, by Rep. Dan Nordberg and Sen. Chris Holbert. The bill clarifies who has access to a decedent’s safe deposit box under the Colorado Probate Code and and clarifies that the custodian is not deemed to have knowledge about the contents of the box.
  • HB 15-1069 – Concerning Information Required to be Included in Recorded Written Instruments Filed with the County Clerk and Recorder to Claim a Homestead Exemption, by Rep. Su Ryden and Sen. Chris Holbert. The bill adds a requirement that a property owner’s name be included on a homestead exemption document.
  • HB 15-1071 – Concerning Clarification that, Following a Merger of Entities, the Surviving Entity is Entitled to Control the Premerger Attorney-Client Privileges of a Constituent Entity, by Rep. Jon Keyser and Sen. Owen Hill. The bill specifies that a corporation that merges with another entity inherits the attorney-client privilege from the other entity.
  • SB 15-057 – Concerning the Reporting Requirements of the Colorado Clean Claims Task Force, by Sen. David Balmer and Rep. Angela Williams. The bill changes the reporting requirements for the Colorado Medical Clean Claims Task Force so that the reports will go to the Commissioner of Insurance and the business committee of the General Assembly.
  • SB 15-142 – Concerning a Change in State Law to Make Requirements for Moneys Held in Escrow for the Payment of Ad Valorem Property Taxes the Same as the Requirements of the Federal “Real Estate Settlement Procedures Act of 1974″, by Sen. Ellen Roberts and Rep. Dan Pabon. The bill conforms state law to the requirements of the federal Real Estate Settlement Procedures Act, specifically repealing May 30 date for final settlement and changing the provision to reference RESPA.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Constitutionality of Life Without Parole for Juvenile Offenders Must Be Determined on Case-by-Case Basis

The Colorado Court of Appeals issued its opinion in People v. Wilder on Thursday, February 26, 2015.

Murder—Sentence—Unconstitutional—Juvenile.

In 1998, at the age of 17, defendant conspired to murder his codefendant’s husband and landlord. Defendant and his codefendant invited the two men to the house they were renting. The husband did not arrive, but the landlord arrived with a friend. After an argument, the codefendant shot both the landlord and his friend several times. The landlord’s friend died from the gunshot wounds. Defendant killed the landlord by repeatedly bludgeoning his head with a baseball bat.

On appeal, defendant asserted that his mandatory sentence to life in prison without the possibility of parole for the first-degree murder conviction was unconstitutional. Because defendant was a juvenile at the time of the crimes, the Court of Appeals was required to make an individualized determination of whether life without parole was appropriate, given the particular qualities of the juvenile being sentenced. Here, the trial court sentenced defendant to life without the possibility of parole for the first-degree murder conviction, under the 1999 mandatory provision of CRS § 18-1.3-401(4)(a). Defendant’s sentence was vacated and his case was remanded to the trial court for an individualized determination of whether life without parole is an appropriate sentence.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: DNA Swab Evidence from Juvenile Offender Need Not Be Suppressed

The Colorado Court of Appeals issued its opinion in People v. Casillus on Thursday, February 26, 2015.

Deferred Adjudication—Juvenile—Probation—DNA Collection—Suppression of Evidence—Fourth Amendment.

A juvenile court placed defendant Ismael Casillas on a deferred adjudication. The terms of the deferred adjudication required him to be under the supervision of the juvenile probation department with standard terms and conditions. Defendant’s juvenile probation officer later swabbed his cheek for a DNA sample. This DNA sample led to defendant—now an adult—being first linked to a carjacking and, ultimately, being convicted of criminal mischief, which he now appeals.

Defendant contended that evidence of his DNA should be suppressed because its collection violated the juvenile DNA collection statute and the Fourth Amendment. Because defendant stipulated to a one-year deferred adjudication and sentence on his juvenile charge and successfully completed his deferred adjudication, he was not required to submit to a cheek swab. Therefore, the cheek swab violated the juvenile DNA collection statute and the Fourth Amendment. However, because defendant has not established that any violation of the juvenile DNA collection statute was willful and recurrent, the trial court did not err by denying his motion to suppress based on a statutory violation. Furthermore, the suppression of the DNA evidence obtained from the juvenile probation officer’s cheek swab was only a supervisory function under the direction of the juvenile court and would have no deterrent value. As a result, suppression of the DNA evidence was neither a necessary nor appropriate remedy for violation of defendant’s Fourth Amendment rights. The trial court’s denial of defendant’s motion to suppress the DNA sample was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Has Authority to Allow Defense Discovery of Crime Scene

The Colorado Court of Appeals issued its opinion in People in Interest of E.G. on Thursday, February 26, 2015.

Sexual Assault of a Child—Juvenile Offender—Access to Crime Scene—Privacy Interests—Cross-Examination—Sentence.

E.G. was charged with two counts of sexual assault of a child and two pattern of abuse sentence enhancers for sexually assaulting his younger cousins over a two-year period in the home of their mutual grandmother. Because E.G. was a juvenile, his case originated in juvenile court. E.G. was later charged as an aggravated juvenile offender and his case was transferred to district court.

On appeal, E.G. argued that the trial court erred when it denied, based on lack of authority, his motion requesting court-ordered access to the crime scene in the basement of his grandmother’s home. A trial court has the authority to allow discovery of a crime scene to the defense, even if the discovery implicates constitutionally protected privacy rights of a nonparty, provided that the defendant’s justification for the information, which derives from his constitutional rights to due process and to present a defense, outweighs the privacy interests. Because E.G. previously lived at the home and was provided photographs of the crime scene before trial, he failed to meet this standard. The trial court, therefore, properly denied E.G.’s motion.

E.G. next contended that the trial court reversibly erred in limiting E.G.’s cross-examination of the forensic interviewer. Because the forensic interview tapes were already in evidence and counsel had already impeached the victims during prior cross-examination of them, it was needless to question the forensic interviewer on her recollection of those same interviews or what the forensic interviewer did and did not ask. Therefore, the court did not abuse its discretion in excluding the evidence as cumulative. It was also not an abuse of discretion to exclude cross-examination that did not show actual bias of the forensic interviewer.

E.G. also contended that the trial court reversibly erred when it sentenced him directly to Department of Corrections (DOC) custody absent statutory authority to do so. A trial court must sentence an aggravated juvenile offender according to CRS § 19-2-601. Here, however, because E.G. was 22 years old at the time of sentencing, he had already aged out of Department of Human Services (DHS) custody and DHS could not exercise jurisdiction over him. Therefore, certain portions of § 19-2-601(8), which do not require the participation of DHS, may apply to defendants who fall within the statute’s gap. Because the record does not include the court’s consideration of all requirements under § 19-2-601(8), the case was remanded for additional findings concerning the missing factors to determine whether the court’s decision to sentence E.G. directly to DOC custody was proper.

Summary and full case available here, courtesy of The Colorado Lawyer.