March 29, 2015

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.

e-Legislative Report: February 17, 2015

legislationCBA Legislative Policy Committee

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

Meeting held Friday, February 13

SB 15-129 — Preserving Parent-child Relationships
Sponsor: Senator Kevin Lundberg (R)
The LPC voted to oppose this bill in part because of the fundamental way that it changed the presumption of parenting time away from the “best interest of the child” to a different standard more focused on the parents in divorce proceedings. The bill was heard in committee on Wednesday the 11th and was passed on a party line vote after substantial amendments. SB-129 was referred to the Appropriations Committee for consideration of the bill’s fiscal impact.

SB 15-174 — Uniform Substitute Decision Making Documents Act
Sponsor: Senator Patrick Steadman (D)
The LPC voted to oppose this bill. The committee felt that the bill conflicts with existing statute, was unnecessary in many respects and that it potentially created more gaps and questions with existing law than its adoption would solve.

HB 15-1091 — Policies On Juvenile Shackling In Court
Sponsors: Representative Susan Lontine (D), Senator Michael G. Merrifield (D)
The LPC was concerned that while this bill was very well intentioned, it raised significant potential problems with separation of power between the legislative and judicial branches.

At the Capitol: Week of February 9

SB 15-049 — Real Estate Title Vests In Entity Once Formed
Sponsors: Senator Beth Martinez Humenik (R), Representative Jon Keyser (R)
This bill, supported by the Bar, passed through the Senate this past week. It has been assigned to the House Business Affairs and Labor Committee and has not yet been calendared for a hearing.

HB 15-1121 — Wind Energy Generation
Sponsors: Representative Jon Becker (R), Senator Jerry Sonnenberg (R)
The bill, supported by the Bar, also passed through its first chamber (the House) last week. It will next be heard in the Senate, where it has been assigned to the Agriculture, Natural Resources & Energy Committee. It will be heard by that committee on February 19.

SB 15-077 — Parents’ Bill of Rights
Sponsors: Senator Tim Neville (R), Representative Patrick Neville (R)
The bill passed out of the Senate committee hearing on a party line vote, and was debated on the floor. The bill was passed with amendments, and now moves to the House for consideration. It has not been calendared for consideration.

SB 15-042 — Mandatory Reports Of Animal Abuse
Sponsors: Senator Jerry Sonnenberg (R), Representative Jon Becker (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1101 — Public Defender ADC Records Open Records
Sponsors: Representatives Rhonda Fields (D), Polly Lawrence (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1174 — Information Protections Domestic Violence Victims
Sponsors: Representative Terri Carver (R), Senator Laura Woods (R)
The CBA has not taken a position on this bill—though we are working with the sponsors to ensure that the program will work as intended and not harm the real estate transaction process as a result of its adoption or implementation. It is likely that the CBA and its sections will participate in stakeholder groups and work sessions this summer.

New Bills of Interest

Senate

SB 15-177 — HOA Construction Defect Lawsuit Approval Timelines
Sponsors: Brian DelGrosso (R), Mark Scheffel (R), Jonathan Singer (D), Jessie M. Ulibarri (D)
The bill states that when the governing documents of a common interest community require mediation or arbitration of a construction defect claim and the requirement is later amended or removed, mediation or arbitration is still required for a construction defect claim. These provisions are in section 2 of the bill.

Section 2 also specifies that the mediation or arbitration must take place in the judicial district in which the community is located and that the arbitrator must:

  • Be a neutral third party;
  • Make certain disclosures before being selected; and
  • Be selected as specified in the common interest community’s governing documents or, if not so specified, in accordance with the uniform arbitration act.

Section 1 adds definitions of key terms. Section 3 requires that before a construction defect claim is filed on behalf of the association:

  • The parties must submit the matter to mediation before a neutral third party; and The board must give advance notice to all unit owners, together with a disclosure of the projected costs, duration, and financial impact of the construction defect claim, and must obtain the written consent of the owners of units to which at least a majority of the votes in the association are allocated.

Section 4 adds to the disclosures required prior to the purchase and sale of property in a common interest community a notice that the community’s governing documents may require binding arbitration of certain disputes.

House

HB 15-1025 — Competency To Proceed Juvenile Justice System
Sponsors: Representative Paul Rosenthal (D), Senator Linda M. Newell (D)
The bill establishes a juvenile-specific definition of “incompetent to proceed” for juveniles involved in the juvenile justice system, as well as specific definitions for “developmental disability”, “intellectual disability”, “mental capacity”, and “mental disability” when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.

HB 15-1216 — Basis For Expert Opinion Testimony
Sponsors: Representative Kevin Priola (R), Senator John Cooke (R)
The bill prohibits a person from testifying concerning the person’s expert opinion unless certain conditions are met.

e-Legislative Report: February 10, 2015

legislationCBA Legislative Policy Committee

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

Meeting held Friday, February 6
The following bills were discussed for action during last Friday’s LPC meeting.  Other bills of interest from that agenda are tracked and updated below.

SB 15-042 – Mandatory Reports Of Animal Abuse
(Senator Sonnenberg & Representative J. Becker)
The intent of the sponsors was to criminalize the recording of undercover videos showing animal cruelty in farming practices.  The Bar sections could not support the bill, or a subsequent “strike below”* amendment, because the language was overly broad, potentially unconstitutional and would lead to unintended consequences.  The LPC voted to oppose this bill at the recommendation of the Animal Law and Agricultural Law Sections.

HB 15-1101 – Public Defender ADC Records Open Records
(Representatives Field and Lawrence)
The LPC voted to oppose this bill as well.  The committee was concerned about the impact of Rule 1.6 and the financial impact of the bill to the State.  There was also concern that this bill would open the door for CORA requests of the Judicial Branch – and the potential impact that would have.  The LPC voted unanimously to oppose this bill.

HB 15-1037 – Freedom of Conscience Higher Ed
(Representative Priola & Senator Neville)
This bill was considered at the request of the Civil Rights Committee who presented that the bill was intended to “protect religious freedom and the right of association.”  After some discussion, the LPC voted to take no position on this bill.

At the Capitol: Week of February 2

HB 15-1135 – Terminally Ill Individuals End-of-life Decisions
(Representatives Court and Ginal & Senator Guzman)
HB 1135 was the big bill last week at the capitol.  Testimony began a little after 9:30am and concluded shortly before 10pm!  The emotional level of testimony was compelling.  There were approximately 120 people that signed up to testify for the bill ranging from all types of organizations and all walks of life. Many made passionate testimony on both sides of the bill which was a true indicator that our group made the correct policy decision to fix the issues and then maintain our neutrality. It is an issue that people either feel at a core level to support or they don’t.  The Committee voted to send the bill to the next committee Appropriations.  That motion failed 8-5.  There was a motion to Postpone the bill indefinitely, (passing 9-4) killing the bill for the remainder of the session.

Many Bar sections weighed in on the bill, its technical merits, and the drafting problems of the bill.  While individual sections had vigorous debates on the policy of “death with dignity” or physician assisted suicide, the LPC took no position on the bill itself.

SB 15-077 – Parents’ Bill of Rights
(Senator Neville & Representative Neville)
This Senate Bill sponsored by the father-son legislative team from Jefferson County was heard and passed out of the Senate committee last week.  The bill is set for its key second reading on Wednesday. Senate Bill 77, the so-called “Parents’ Bill of Rights” sponsored by Sen. Tim Neville and Rep. Patrick Neville, would give parents certain rights over the health care, education and mental health care of minor children.  The Bar Association voted to oppose this legislation at its LPC meeting on January 30.

SB 15-049 – Real Estate Title Vests In Entity Once Formed
(Senator Martinez Humenik & Representative Keyser)
This bill – supported by the bar – continues through the legislature on a straightforward course. It has now passed the Senate and will be heard in the Hose Business Affairs and Labor Committee, where Rep. Keyser will be the key sponsor.

HB 15-1121 – Wind Energy Generation
(Representative J. Becker & Senator Sonnenberg)
This Bar supported bill is also progressing through the legislative process.  Representative Becker has successfully completed the House process, and the bill passes to Senator Sonnenberg for the final leg of its legislative journey.

New Bills of Interest

Senate

SB 15-129 – Preserving Parent-child Relationships
(Senator Lundberg)
The bill amends provisions relating to best interests of a child in domestic relations actions and certain other actions in the juvenile code. With respect to such actions, the bill:

Amends the legislative declaration to emphasize the fundamental liberty interest of both parents and children in maintaining the parent-child relationship;

With respect to temporary orders hearings, if there has been a temporary or permanent protection order entered against one or both parties either prior to or in conjunction with the domestic relations action, requires the court to grant an expedited hearing at the request of either party for purposes of modifying provisions in the protection order relating to parenting time, communication, and access to a child. The court shall order substantially equal parenting time and access to the child unless it finds that such orders are clearly not in the child’s best interest. The court shall also enter any orders necessary for the safety of the protected party relating to the restrained party’s parenting time with the child.

Changes the nature of an investigation by a court-appointed child and family investigator (CFI) from evaluation and recommendations to investigation and fact-finding. CFIs will conduct an objective investigation of issues as specifically directed by the court and will provide written factual findings to the court that are supported by credible evidence. A CFI’s report will not make recommendations regarding the allocation of parental responsibilities but will provide the court with the factual findings the court deems necessary to make such determinations.

Amends language in the legislative declaration regarding the allocation of parental rights and responsibilities relating to the best interests of the child. Also, the bill requires the court to allocate substantially equal parenting time unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall award mutual decision-making responsibilities with respect to the child unless the court finds that such an order is clearly not in the child’s best interest.

For purposes of temporary orders in a domestic relations action, requires the court to award substantially equal parenting time to the parties unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall order mutual decision-making responsibilities unless mutual decision-making is clearly not in the child’s best interest.

Changes the nature of an evaluation by a court-appointed parental responsibilities evaluator to an investigation by a mental health professional. The mental health investigation is limited to mental health diagnoses, assessments of relevant addictions, or other mental health-related issues that are relevant to the court’s allocation of parental responsibilities for the child. The investigator’s report shall contain findings of fact but shall not contain conclusions or recommendations relating to the allocation of parental rights and responsibilities.

Clarifies that the 2-year restriction on filing motions that request a substantial change in parenting time and that also change the party with whom the child resides the majority of the time do not apply to moderate changes to parenting time when the existing parenting time order awarded substantially equal parenting time to the parties; and

Amends the provisions relating to modification of decision-making responsibility for a child from requiring the court to retain the prior decision-maker unless certain criteria are met to permitting the court to change the decision-maker after considering certain criteria, including whether an award of mutual decision-making responsibilities is now in the child’s best interest.

SB 15-174 – Uniform Substitute Decision Making Documents Act
(Senator Steadman)
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Substitute Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute decision-making document (document) executed outside this state is valid in this state. A person may assume in good faith that a document is genuine, valid, and still in effect and that the decision-maker’s authority is genuine, valid, and still in effect. A person who is asked to accept a document shall do so within a reasonable amount of time. The person may not require an additional or different form of document for authority granted in the document presented. A person who refuses to accept a substitute document is subject to:  A court order mandating acceptance of the document; and Liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document. A person is not required to accept a substitute document under certain described conditions.

House

HB 15-1043 – Felony Offense For Repeat DUI Offenders
(Senators Cooke and Johnson & Representatives McCann and Saine)
Under current law, a DUI, DUI per se, or DWAI is a misdemeanor offense. The bill makes such an offense a class 4 felony if the violation occurred: (1) After 3 or more prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof; or (2) not more than 7 years after the first of 2 prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof, if the violation included at least one of the following circumstances: One or more persons less than 18 years of age were present in the person’s vehicle at the time of the violation;  In committing the violation, the person caused damage or injury to any property or persons;  After committing the violation, the person fled the scene; or At the time of the violation, or within 2 hours after the violation, the person’s BAC was 0.15 or higher. Under current law, aggravated driving with a revoked license is a class 6 felony. The bill changes the penalty to a class 1 misdemeanor but requires a sentencing court to ensure that an offender spends a minimum of 60 days in the custody of a county jail. Under current law, a person whose privilege to drive was revoked for multiple convictions for any combination of a DUI, DUI per se, or DWAI must hold an interlock-restricted license for at least one year following reinstatement prior to being eligible to obtain any other driver’s license. The bill expands this period to a minimum of 2 years and a maximum of 5 years. The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. The bill makes conforming amendments.

HB 15-1161 – Public Accommodation First Amendment Rights
(Representative Klingenschmitt)
The bill specifies that neither the civil rights division, the civil rights commission, nor a court with jurisdiction to hear civil actions brought under the public accommodations laws may compel involuntary speech or acts of involuntary artistic expression or involuntary religious expression by a person when such speech or acts of artistic or religious expression would lead to that person directly or indirectly participating in, directly or indirectly supporting, or endorsing or impliedly endorsing an ideology, ceremony, creed, behavior, or practice with which the person does not agree.

HB 15-1189 – Uniform Fiduciary Access to Digital Assets Act
(Representative Keyser & Senator Steadman)
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Fiduciary Access to Digital Assets Act”, as amended, as Colorado law. The bill sets forth the conditions under which certain fiduciaries may access: The content of an electronic communication of a principal or decedent; A catalog of electronic communications sent or received by a decedent or principal; and  Any other digital asset in which a principal has a right or interest or in which a decedent had a right or interest at death. As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor may access the property and any digital asset stored in it and is an authorized user for purposes of computer fraud and unauthorized computer access laws.

“Fiduciary” means a personal representative, a conservator, an agent, or a trustee. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good-faith compliance with the provisions of the bill.

HB 15-1203 – Concerning earned time for certain offenders serving life sentences as habitual offenders
(Representative Rosenthal & Senator Steadman)
Under current law, an offender who was sentenced to a habitual offender 40-calendar-year life sentence before July 1, 1993, is not accruing earned time. The bill permits those sentenced under those circumstances to accrue earned time.

HB 15-1212 – Authority To Sell State Trust Lands To Local Gov
(Representative KC Becker & Senator Kerr)
In 2010, a law was enacted that allowed the state board of land commissioners (board) to convey land to units of local government if the conveyance would add value to adjoining or nearby state trust property, benefit board operations, or comply with local land use regulations. When enacted, the authority was set to repeal on July 1, 2015. The bill repeals that automatic repeal and makes the board’s authority permanent.

 

*a “Strike Below” amendment essentially replaces the entire bill below the title with an entirely different bill.  In practice this changes almost everything about the bill – but addresses the same topic, allowing for the sponsor to retain his/her bill and to continue working on the topic.  It is generally used when interested parties and stakeholders need a complete rewrite of the bill as originally introduced in ordrr to try and reach consensus.

 

Tenth Circuit: District Court Must Find Compelling Reason for Restricting Fundamental Liberty Interest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Burns on Tuesday, December 30, 2014.

James Burns was convicted of possession and attempted possession of child pornography, and was sentenced to 63 months in prison followed by 5 years of supervised release. As a condition of his release, the probation department was required to approve of any contact Burns had with minors, including his youngest daughter, S.B. Burns appealed. He did not object to the imposition of the restrictions at trial, so the Tenth Circuit reviewed for plain error.

The Tenth Circuit found that the district court restricted Mr. Burns’ contact with a family member without making constitutionally required findings. When a court imposes a restriction that invades a fundamental right or liberty interest, it must find compelling circumstances to do so. The district court made no findings of compelling circumstances for restricting Mr. Burns’ fundamental interest in parenting his child. The Tenth Circuit found a reasonable probability that the court would not have restricted Mr. Burns’ contact with S.B., since there was no evidence that Mr. Burns abused or sexually molested children and he had a good relationship with his other four children. The error seriously affected the fairness of the proceedings because there was a substantial likelihood the district court would have softened the restrictions.

The Tenth Circuit reversed and remanded for reconsideration of the supervised release condition.

HB 15-1053: Changing Mandatory Ages for Compulsory Education

On January 7, 2015, Rep. Kim Ransom introduced HB 15-1053 – Concerning the Ages at which Children Must Attend SchoolThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, a child who is at least 6 years of age and under 17 years of age must attend school. The bill changes the ages of compulsory education to at least 7 years of age and under 16 years of age.

The bill was assigned to the House Education Committee, where it was postponed indefinitely on January 26.

Tenth Circuit: Congress Did Not Grant Authority to Expunge Records in Federal Youth Corrections Act

The Tenth Circuit Court of Appeals issued its opinion in Tokoph v. United States on Tuesday, December 23, 2014.

David Tokoph was sentenced in 1974 under the then-effective Federal Youth Corrections Act, which provided that for offenders sentenced to probation who met certain criteria, the court could set aside the conviction and provide the offender a certificate to that effect. In 1982, Tokoph was discharged, the sentence was set aside, and the court issued him a certificate to that effect. In 2012, Tokoph petitioned the U.S. District Court for the District of New Mexico to seal and expunge his records. The district court found it lacked authority to do so and denied the motion. Tokoph appealed.

The Tenth Circuit evaluated the case law on which Tokoph relied and found that his proposition was only supported by dicta, not holdings in the cases. To the contrary, the Tenth Circuit found the district court correctly followed binding circuit precedent in refusing to expunge the conviction. Tokoph also argued that Supreme Court precedent indicated authority to seal records, but the Tenth Circuit found that the indications were weak, and the binding Tenth Circuit precedent on point controlled. The Tenth Circuit also noted there is no applicable inherent equitable authority to grant expunction of a valid conviction.

The district court’s denial of Tokoph’s motion to expunge was affirmed. The Tenth Circuit reversed the order sealing the record.

Colorado Court of Appeals: Jury Instructions Erroneously Failed to Consider Parent’s Actions; Error Not Harmless

The Colorado Court of Appeals issued its opinion in People in Interest of J.G. on Wednesday, December 31, 2014.

Dependency and Neglect—Proof as to Each Parent.

In January 2014, the Fremont County Department of Human Services (FCDHS) learned that 5-year-old S.L. had told her parents that her half-brother, 11-year-old Jo.G., had touched her inappropriately while she was trying to sleep. Mother and Father immediately reported the incident to police. Investigation found that Jo.G. had also inappropriately touched his 8-year-old sister. Jo.G was criminally charged and moved to an offense-specific foster home.

FCDHS then filed a petition in dependency and neglect, alleging that all five of the children living in the home were dependent and neglected because the environment in which Jo.G. was able to sexually act out against his sisters was injurious to all of the children. Mother admitted that Jo.G was dependent and neglected, but denied the allegation as to the other four children, and requested a jury trial on the issue of their adjudication.

The jury found that although none of the children lacked proper parental care and none were homeless, each child’s environment was injurious to his or her welfare. Accordingly, the court adjudicated all as dependent and neglected.

On appeal, the Court of Appeals found that the court erred by providing jury instructions and a special verdict form that allowed the jury to determine the status of each child without considering each parent’s actions, availability, ability, andwillingness to provide reasonable parental care. The Court further concluded that the trial court’s errors were prejudicial to mother, and therefore constituted grounds for reversal. As instructed, the jury was permitted to find that a child’s dependent status in relation to any respondent parent was sufficient to find that the child was dependent and neglected as to all respondent parents. If properly instructed to separately examine the children’s status in relation to each parent, the jury might have concluded that the children’s environment was notinjurious to their welfare, because mother was available, willing, and able to provide reasonable parental care. Had the jury made such a determination, the children could not have been adjudicated as dependent and neglected.

Accordingly, the order was reversed and the case was remanded for a new adjudicatory trial. If FCDHS does not pursue adjudication, the order and decree of adjudication must be vacated and the petition dismissed.

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