May 5, 2016

e-Legislative Report: February 22, 2016

Welcome e-leg report readers to this week’s installment of the world under the Gold Dome. As always, we welcome your feedback, thoughts, comments and questions. This news report is designed to keep you up-to-date on activities at the capitol that are of interest to the bar association and to lawyers across practice areas.

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

CBA Legislative Policy Committee

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

LPC Meeting Update

The following bills were discussed by the LPC on 2.19.16. Other bills of interest from that agenda are tracked and updated below.

HB 16-1191 Bill Of Rights For Persons Who Are Homeless
The bill creates the “Colorado Right to Rest Act,” which establishes basic rights for persons experiencing homelessness, including, but not limited to, the right to use and move freely in public spaces without discrimination, to rest in public spaces without discrimination, to eat or accept food in any public space where food is not prohibited, to occupy a legally parked vehicle, and to have a reasonable expectation of privacy of one’s property. The bill does not create an obligation for a provider of services for persons experiencing homelessness to provide shelter or services when none are available.
The LPC considered this bill at the request of the Civil Rights Committee, but took no position on the bill.

HB 16-1110 Parent’s Bill Of Rights
The bill establishes a liberty interest and fundamental right for parents in the care, custody, and control of a parent’s child, restricting governmental entities from infringing on such interests and rights without demonstrating a compelling governmental interest that cannot be accomplished through less restrictive means.
The LPC voted to oppose this bill because it reverses the long-standing policy position of the Colorado Judicial system to act in the best interest of the child.

HB 16-1235 Commissions Evaluating State Judicial Performance
The bill makes revisions to various functions of the state commission on judicial performance (state commission) and the district commissions on judicial performance (district commission), referred to collectively as the “commissions.” The revisions include: changing the makeup of the state commission to include one representative from each judicial district to ensure representation from the entire state; establishing guidelines for when attorneys and nonattorneys are appointed to the state commission by a district commission; not allowing the chief justice to select individuals for the state commission, which reviews the chief justice’s performance; mandating annual public meetings at which the public is invited to attend and confidentially comment on justices and judges; requiring the state commission to obtain and verify required financial disclosures, criminal histories, and driving histories for each justice or judge reviewed by the commissions; requiring judicial evaluations to take place every two years and to be made public at that time; mandating that the commissions make a “do not retain” recommendation when a majority of commissioners determine that it is more probable than not that a justice or judge knowingly committed a dishonest act during the performance of judicial duties, knowingly made inaccurate or insufficient public financial disclosures, or was improperly influenced by a conflict of interest in performing a judicial act; and mandating that the commissions make a “do not retain” recommendation when two-thirds of the attorneys who complete a questionnaire or survey for the commission recommend that the justice or judge not be retained. The bill is funded from any fees and cost recoveries for electronic filings, network access and searches of court databases, electronic searches of court records, and any other information technology services performed pursuant to statute.
The LPC voted to oppose this bill based on the consideration that this is a longstanding and fundamental change that is not in the best interest of the administration of justice in Colorado.

SB 16-085 Uniform Trust Decanting Act
Colorado Commission on Uniform State Laws. “Decanting” is a term used to describe the distribution of assets from one trust into a second trust. The bill enacts the “Colorado Uniform Trust Decanting Act” (Act), which allows a trustee to reform an irrevocable trust document within reasonable limits that ensure the trust will achieve the settlor’s original intent. The Act prevents decanting when it would defeat a charitable or tax-related purpose of the settlor.
The LPC voted to support this Uniform Bill as modified to meet the considerations of Family Law, Trust & Estate and Elder Law sections.

Updates regarding bills the CBA is currently focused on:

SB 16-013 Clean-up Office Of The Child Protection Ombudsman
Senator Newell has pulled the language of concern from the bill.  SB 13 was passed out of committee on Monday.

SB 16-043 Student Loans Consumer Protections
The CBA testified in favor of this bill, at the request of the Colorado Young Lawyers Division. The bill failed to pass out of committee.

SB 16-047 No Detention For Juveniles Who Are Truant
The CBA testified that while detention for truancy is not something the Bar supports as policy, the bill was fundamentally flawed by prohibiting the judicial branch from effecting its own valid orders. Case law from Colorado in the 1990s is directly on point to the Bar’s constitutional concerns.

SB 16-084 Uniform Substitute Health Care Decision-making Documents
The Bar remains neutral on this bill, while the Health Law Section has some concerns and opposition to the language. The bill was heard in committee, but was not voted on. We are waiting for the Senate to take action on the bill.

SB 16-071 Revised Uniform Athlete Agents Act 2015
The CBA has not taken a position on this bill. The Department of Regulatory Affairs has some outstanding concerns that they are addressing with the Uniform Law Commission.

SB 16-088 Revised Uniform Fiduciary Access To Digital Asset
This bill, as amended to accommodate both the Trust & Estate and Business Law Sections, is moving through the legislature as anticipated.

SB 16-115 Electronic Recording Technology Board
The bill, which is supported by the Bar and the Real Estate Section, has passed its first two committee hearings and now heads to Senate Appropriations.

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death
The CBA is working with the sponsors on some amendments for this bill. The bill is now in its second chamber.

HB 16-1078 Local Government Employee Whistleblower Protection
The CBA is working on this bill, which was amended and is now headed to appropriations in the House.

New Bills of Interest

These are a few new bills recently introduced. They have been sent to CBA sections for review and comment. If you have any questions about these or any other bills, please drop me a line. I’m happy to help you however I can.

HB 16-1270 Security Interest Owner’s Interest In Business Entity
Under current law, the “Uniform Commercial Code” (Code) invalidates contractual limits on the transferability of some assets that can be subject to a security interest. In 2006, the “Colorado Corporations and Associations Act” (Act) was amended to clearly and broadly exempt an owner’s interest in a business entity from these Code provisions to effectuate the “pick your partner” principle that allows small businesses to control their ownership. Section 3 of the bill narrows the exemption in the Act to that necessary for “pick your partner,” and sections 1 and 2 codify this narrowed exemption in the Code.

HB 16-1275 Taxation Of Corporate Income Sheltered In Tax Haven
The bill pertains to an affiliated group of corporations filing a combined report. In a combined report filing, the tax is based on a percentage of the entire taxable income of all of the includable corporations, but the tax is assessed only against the corporation or corporations doing business in Colorado. Including more affiliated corporations in the combined report may result in an increase in income subject to tax. There are jurisdictions located outside of the United States with no tax or very low rates of taxation, strict bank secrecy provisions, a lack of transparency in the operation of their tax system, and a lack of effective exchange of information with other countries. There are several common legal strategies for sheltering corporate income in such jurisdictions, often called “tax havens.” Notwithstanding a current requirement in state law that those corporations with 80% or more of their property and payroll assigned to locations outside of the United States be excluded from a combined report, the bill makes a corporation that is incorporated in a foreign jurisdiction for the purpose of tax avoidance an includable C corporation for purposes of the combined report. The bill defines a corporation incorporated in a foreign jurisdiction for the purpose of tax avoidance to mean any C corporation that is incorporated in a jurisdiction that has no or nominal effective tax on the relevant income and that meets one or more of five factors listed in the bill, unless it is proven to the satisfaction of the executive director of the department of revenue that such corporation is incorporated in that jurisdiction for a legitimate business purpose. The bill requires the state controller to credit a specified amount per fiscal year to the state education fund to be used to help fund public school education. The bill requires the secretary of state to submit a ballot question, to be treated as a proposition, at the statewide election to be held in November 2016 asking the voters to: increase taxes annually by the taxation of a corporation’s state income that is sheltered in a foreign jurisdiction for the purpose of tax avoidance; provide that the resulting tax revenue be used to help fund elementary and secondary public school education; and allow an estimate of the resulting tax revenue to be collected and spent notwithstanding any limitations in section 20 of article X of the state constitution (TABOR).

SB 16-131 Overseeing Fiduciaries’ Management Of Assets
The bill clarifies statutory language concerning the removal of a fiduciary to ensure that a fiduciary’s authority is suspended as soon as a petition to remove the fiduciary is filed. The bill adds a provision to the conservatorship statutes stating that an adult ward or protected person has a right to be represented by a lawyer of their choosing unless the trial court finds that the person lacks sufficient capacity to provide informed consent for representation by a lawyer. The bill states that after a fiduciary receives notice of proceedings for his, her, or its removal, the fiduciary shall not pay compensation or attorney fees and costs from the estate without an order of the court.

SB 16-133 Transfer Of Property Rights At Death
Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. The bill removes the requirement that the person who swears to and affirms the supplementary affidavit have no record interest in the real property. The bill includes inherited individual retirement accounts and inherited Roth individual retirement accounts as property exempt from levy and sale under writ of attachment or writ of execution. The bill, which amends provisions concerning determination-of-heirship proceedings, clarifies the definition of “interested person,” so that anyone affected by the ownership of property may commence a proceeding; describes when an unprobated will may be used as part of a proceeding; clarifies notice requirements; and ensures that a judgment and decree will convey legal title as opposed to equitable title. The bill enacts portions of section 5 of the “Uniform Power of Appointment Act,” with amendments.

Colorado Court of Appeals: Treatment Plan Must Be Appropriate to Rehabilitate Parent

The Colorado Court of Appeals issued its opinion in People in Interest of K.B. on Thursday, February 11, 2016.

In March 2013, the Mesa County Department of Human Services opened a dependency and neglect case concerning 16-year-old K.S., 13-year-old Mi.B., 11-year-old K.B., and 9-year-old Ma.B. The Department alleged that Mother and Father fought frequently; Father yelled at the children, called them names, and physically abused them; Mi.B. had threatened one of his sisters with a knife after an argument; and K.S., who had cerebral palsy, was not receiving physical therapy she needed. Treatment plans were adopted for both Mother and Father, who was the father to the three older children. The parents’ treatment plans were amended from time to time, including requiring both parents to actively participate in individual therapy.

In August 2013, the children were removed from the parents’ home due to renewed concerns about domestic violence, and in October 2013 the deferred adjudication was converted to an order of adjudication. In December 2014, the Department filed a motion to terminate the parent-child relationships between each of the parents and the two younger children. In July 2015, after a hearing, the court granted the motion to terminate parental rights, and both parents appealed.

On appeal, Mother contended the treatment plan was not appropriate because although domestic violence was a feature of her relationship with Father from the beginning, no domestic violence counseling or treatment was ever offered to her, and she was not told to separate from Father. The court of appeals concluded further findings were required on the issue. The court noted that in order to be appropriate, a treatment plan must relate to the child’s needs and provide treatment objectives that are reasonably calculated to render a parent fit to provide adequate parenting within a reasonable time. The court noted that the fact that a treatment plan was not successful does not mean that it was not appropriate.

Both Mother and Father had expressly stipulated that their treatment plans were appropriate, and the court found that the standard for preserving a challenge to the appropriateness of a treatment plan is not clear. Mother contended that her treatment plan was inappropriate because it failed to address the domestic violence concerns. The trial court concluded Mother could not challenge the treatment plan’s appropriateness for the first time at the termination hearing, but she could challenge the reasonableness of the efforts to rehabilitate her. The trial court found that Mother’s treatment plan failed because she did not actively participate in therapy, but it did not make explicit findings as to whether the Department fulfilled its obligation to show by clear and convincing evidence that it had provided Mother with a treatment plan that was reasonably calculated to render her fit to provide adequate parenting within a reasonable time, and whether the services were appropriate to support Mother’s treatment plan but were unsuccessful in accomplishing the plan’s purpose. The court of appeals remanded for explicit findings about the reasonableness of the treatment plan and whether the services were appropriate.

The court of appeals addressed Mother’s remaining contentions on appeal because the trial court may conclude on remand that the services were appropriate. Mother contended the record did not support the trial court’s finding that she did not comply with her treatment plan. The court of appeals disagreed. Department case managers testified that Mother did not have adequate housing for her family at the end of the case, she did not progress beyond supervised visitation, and her attendance at individual therapy was very poor. The Department employees also testified that a significant concern about Mother’s sexual boundaries with the children was supposed to be addressed at individual therapy, but Mother’s attendance at therapy was “almost nonexistent.” The court of appeals noted that these findings were more than sufficient to support the trial court’s order. Mother also contended the findings were inadequate to support the trial court’s finding that she is unfit. The court of appeals again disagreed. The current case manager testified that Mother was unfit due to her poor sexual boundaries and failure to attend individual therapy, and she was unlikely to become fit due to her poor progress with the treatment plan. The court of appeals found this testimony adequate to support the trial court’s findings of unfitness, and noted that if the court finds on appeal that the treatment plan was adequate, it may reinstate the termination order.

Both parents argued the trial court failed to evaluate less drastic alternatives to termination. The court of appeals disagreed. The Department had investigated the possibility of placing Ma.B. with her paternal grandparents in Florida, but she was frightened to be separated from the rest of her family, and the grandparents never completed the screening process. No other family members were found who were willing and able placements for Ma.B. or K.B. The trial court further found that because permanency was important to both Ma.B. and K.B., continued foster care was not a viable less drastic alternative to adoption. The court of appeals found no error in the trial court’s findings. Mother also argued that termination was not in the children’s best interests, and that instead she should be given more time to comply with her treatment plan. The trial court concluded that the benefits of termination outweighed the risks, and the court of appeals found no error in this conclusion.

The court of appeals next evaluated Father’s appeal. Father contended that the Department failed to make reasonable efforts to reunite him with Ma.B. or that his treatment plan was reasonable. He argued that the trial court erred in suspending his visitations in March 2015 and in relying on that suspension to terminate his parental rights. The court of appeals disagreed. The trial court found that Father, like Mother, had only complied in part with the treatment plan but had failed to comply with the plan’s substantive requirements. Father’s parenting time with Ma.B. had been suspended due to his angry outbursts and their effect on Ma.B. He was told he needed to resume individual therapy for his visits to continue, and he did not do so. The court found the evidence sufficient to support that the Department made reasonable efforts to reunite Father and Ma.B.

The court of appeals remanded for further findings as to whether Mother’s treatment plan was adequately crafted to render her a fit parent within a reasonable time. The court affirmed on all other points.

e-Legislative Report: February 16, 2016

Welcome e-leg report readers to this week’s installment of the world under the Gold Dome. As always, we welcome your feedback, thoughts, comments and questions. This news report is designed to keep you up to date on activities at the capitol that are of interest to the bar association and to lawyers across practice areas.

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

CBA Legislative Policy Committee

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

LPC Meeting Update

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

HB 16-1078 Local Government Employee Whistleblower Protection
The bill prohibits a county, municipality, or local education provider from imposing any disciplinary action against an employee on account of the employee’s statements to any person about the local government that the employee reasonably believes to show: a violation of a state or federal law, a local ordinance or resolution, or a local education provider policy; a waste or misuse of public funds; fraud; an abuse of authority; mismanagement; or a danger to the health or safety of students, employees, or the public. The bill permits an employee to file a written complaint with the office of administrative courts, for referral to an administrative law judge, alleging that a local government has imposed disciplinary action that violates this prohibition and seeking injunctive relief and damages. Employees who lose the administrative hearing may file a civil action in district court. The employee protection does not apply if the disclosure was false or made with reckless disregard for the truth or falsity thereof, or if it was of a protected public record or confidential information that was not reasonably necessary to show one or more of the identified circumstances. Administrative law judges are given jurisdiction to hear, determine, and make findings and awards on all these whistleblower cases. The director of the office of administrative courts is required to establish rules to govern these proceedings and hearings.
The LPC voted on the recommendation and request of the Government Counsel and Labor & Employment Law sections to oppose the bill.

HB 16-1154 Employer Definition Clarify Franchisee Status
The bill clarifies that the definition of “employer” only includes a person who possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.
The LPC voted to support the bill on the recommendation and presentation of the Franchise subsection of Business Law section.

HB 16-1232 Sunset DOR Private Letter Ruling & General Information Letter
Currently, the executive director of the department of revenue (department), or the executive director’s designee, is charged with issuing, on written request from a taxpayer, private letter rulings (binding determinations regarding the tax consequences of a proposed or completed transaction), and Information letters (nonbinding statements providing general information regarding any tax administered by the department). This duty is currently scheduled to sunset on September 1, 2016. The bill continues the requirement of the department to issue these letters until September 1, 2023. The bill also specifies that the department must track the total state full-time equivalent (FTE) personnel positions necessary and the hours dedicated by each FTE for the issuance, declination, modification, or revocation of all information letters or private letter rulings.
The LPC voted to support the bill and testify in favor of continuing the practice. The bill will be heard in committee next week.

SB 16-115 Electronic Recording Technology Board
The bill creates the electronic recording technology board (board) in the department of state. The board, which is authorized to issue revenue bonds, is established as an enterprise. So long as it constitutes an enterprise, the board is not subject to any provisions of section 20 of article X of the state constitution. The board sunsets in 6 years, but prior to that sunset, it is subject to a sunset review. The board is authorized to impose a surcharge of up to $2 on all documents that a clerk and recorder receives for recording or filing. If imposed, counties are required to collect the surcharge on behalf of the board and transmit it to the state treasurer for deposit in the newly created electronic recording technology fund (fund). The board is required to: develop a strategic plan incorporating the core goals of security, accuracy, sequencing, online public access, standardization, and preservation of public records; determine functionality standards for an electronic filing system that support the core goals; issue a request for proposal for electronic filing system equipment and software that will be available to counties on an optional basis; develop best practices for an electronic filing system; provide training to clerks and recorders related to electronic filing systems; and make grants to counties to establish, maintain, improve, or replace electronic filing systems for documents that are recorded with a clerk and recorder. In awarding grants, the board is required to give priority for grants to counties that do not have sufficient revenue from the surcharge proceeds to maintain their existing electronic filing systems. The money in the fund is continuously appropriated to the board to be used for these purposes. The bill repeals the secretary of state’s powers to ensure uniformity related to electronic filing systems, which powers become the board’s responsibility, and requires the department of state to prepare an annual report that is published online about the grants that the board made in the prior fiscal year. The bill also extends the one-dollar surcharge that a county clerk and recorder is currently required to collect and use for the county’s core or electronic filing system for 9.5 years. The definition of “electronic filing system” is expanded to include elements of the “core filing system,” which term is repealed.
The LPC voted on the recommendation of the Real Estate Section, which has been involved with the creation and drafting of the bill, to support the bill and testify in favor of its passage in committee.

SB 16-043 Student Loans Consumer Protections
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 3 business days after the date on which the loan is consummated.
The LPC voted to support this bill and to authorize the Juvenile Law section to testify in its favor in committee. This bill would help graduating lawyers, and future graduates, with the debt burden of school.

SB 16-084 Uniform Substitute Health Care Decision-making Documents
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Recognition of Substitute Health Care Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute health care decision-making document (document) 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 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 document under certain described conditions.
The LPC voted to remain neutral on the bill, while authorizing the Health Law section to testify as to the specific concerns it raised in the context of medical practices.

SB 16-047 No Detention For Juveniles Who Are Truant
The bill prohibits a juvenile detention facility from receiving or providing care for a juvenile who violates a court order to attend school unless the juvenile is also adjudicated for a delinquent act and remains under the jurisdiction of the juvenile court for committing the delinquent act.
The LPC is concerned that the bill, by precluding a court from enforcing its own orders, is likely unconstitutional, and does not allow the judicial branch to complete the requirements and reports that were created by SB 15-184.

SB 16-103 Canadian Domestic Violence Protection Order Enforcement
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Recognition and Enforcement of Canadian Domestic Violence Protection Orders Act” as recommended by the national conference of commissioners on uniform state laws. The bill allows a peace officer to enforce a Canadian domestic violence protection order. The bill allows a court to enter an order enforcing or refusing to enforce a Canadian domestic violence protection order. The bill provides immunity for a person who enforces a Canadian domestic violence protection order.
The LPC voted to support this bill on the recommendation of the Family Law section.

Updates regarding bills the CBA is currently focused on:

HB 16-1145 Documentary Fee For Residential Real Property
The CBA was able to propose an amendment to the bill that moved us to “neutral” on this bill. It will be heard in committee this week.

SB 16-013 Clean-up Office Of The Child Protection Ombudsman
This sponsor has agreed to remove the language that the CBA was concerned about. With this amendment, the CBA can officially monitor the bill going forward.

SB 16-071 Revised Uniform Athlete Agents Act 2015
The LPC asked that this bill be reviewed for comment by the Lawyers Professional Liability Committee. Once that review is complete, the LPC will revisit the act.

SB 16-088 Revised Uniform Fiduciary Access To Digital Asset Act
The CBA voted to support the bill as written and is monitoring the bill for any additional amendments that may impact it.

New Bills of Interest

These are a few new bills recently introduced. They have been sent to CBA sections for review and comment. If you have any questions about these or any other bills, please drop me a line. I’m happy to help you however I can.

SB 16-120 Review By Medicaid Client For Billing Fraud
The bill requires the department of health care policy and financing (department), by a certain date, to develop and implement an explanation of benefits for medicaid recipients. The purpose of the explanation of benefits is to inform a medicaid client of a claim for reimbursement made for services provided to the client or on his or her behalf, so that the client may discover and report administrative or provider errors or fraudulent claims for reimbursement. The bill specifies certain information that must be included in the explanation of benefits. Specifically, the explanation of benefits must include information regarding at least one method for a medicaid client to report errors in the explanation of benefits. The department shall work with medicaid clients and medicaid advocates to develop an explanation of benefits and educational materials that are understandable to medicaid clients. The explanation of benefits must be sent to clients not less than bimonthly, and the department shall determine the most cost-effective means for producing and distributing the explanation of benefits, which means may include e-mail or distribution with existing communications to clients.

HB 16-1258 Court Clerks Posting Of Service
Under current law, if a respondent in a domestic relations action cannot be personally served and is served by publication, the clerk of the court is required to post a copy of the process on a bulletin board in his or her office for 35 days after the date of publication. The bill gives the clerk the option of posting the service online on the court’s website rather than on a bulletin board.

HB 16-1261 Retail Marijuana Sunset
Sunset Process—House Finance Committee. The bill implements the following recommendations from the sunset report for the retail marijuana program: extending the retail marijuana code until September 1, 2019; stating that regulation of labeling, packaging, and testing is a matter of statewide concern; and repealing the following provisions from the retail marijuana code: the requirement that a licensee post a surety bond as condition of licensure; the requirement that the executive director deny a license based on a previous denial at the same location; the proscription on the placement and sale of marijuana-themed magazines; and the authority to promulgate rules prohibiting misrepresentation and unfair practices. The bill creates two new retail marijuana licenses, a retail marijuana transport license and a retail marijuana operator license, and gives the state licensing authority rulemaking authority over those licenses. The bill conforms language in the retail marijuana code to language in the medical marijuana code related to mandatory testing, the confidentiality of licensee information, and limited access areas.

Colorado Court of Appeals: Trial Court Within Discretion to Terminate Parental Rights After Developing Treatment Plan

The Colorado Court of Appeals issued its opinion in People in Interest of Z.P.S. on Thursday, February 11, 2016.

A.M.H.’s one-month-old infant, O.S., was found unresponsive and flown to Children’s Hospital, suffering from malnutrition. O.S.’s twin, M.J.S., was admitted at the same time as O.S., and was also suffering malnutrition and failure to thrive. The Phillips County Department of Social Services filed a dependency and neglect petition and assumed temporary custody of the twins and their siblings, three-year-old Z.P.S. and one-year-old N.S. Later, O.S., who had suffered brain damage from malnutrition, died after she was removed from life support.

Mother and father filed written stipulations that the children lacked proper parental care through their actions or omissions. Based on the stipulation, the court entered an order adjudicating the children dependent and neglected. One week later, the court held a dispositional hearing and entered a treatment plan for mother, which was later amended. At a later permanency hearing, the Department asked the court to terminate Mother’s parental rights based on a finding that no appropriate treatment plan could be devised. The court held a contested dispositional hearing at which it found that no appropriate treatment plan could be devised, and it terminated Mother’s parental rights. It allowed Father to relinquish his parental rights to children at the same hearing. Following a termination hearing, the court found by clear and convincing evidence that no appropriate treatment plan could be crafted for Mother because she had an emotional illness that was likely to render her unable to care for the children, M.J.S. had suffered serious bodily injury, and O.S. had died due to parental abuse and neglect.

On appeal, Mother challenged the trial court’s “no appropriate treatment plan” finding, arguing that (1) it was error for the court to find that no appropriate treatment plan could be devised after it had already approved one, and (2) the trial court erred by modifying the dispositional order by relying on information that was already before the court. The Colorado Court of Appeals evaluated whether the trial court had authority to enter a “no appropriate treatment plan” order after approving a treatment plan, and found that it did. The court of appeals noted that allowing the trial court to modify or enter new dispositional orders comports with the Colorado Children’s Code because it protects the best interests of the children. The court also held that the trial court was not required to modify the existing parenting plan before terminating parental rights.

The court of appeals similarly rejected Mother’s argument that the trial court erred in terminating her rights based on evidence that was before it at previous dispositional hearings. The court of appeals held that a trial court’s ability to modify a dispositional order is not limited to situations in which circumstances have changed. Mother also contended her due process rights were violated because the “no appropriate treatment plan” order precluded her from offering evidence of her compliance with the existing treatment plan. The court found no error, holding that Mother was on notice that the Department sought to terminate her parental rights and she was afforded ample opportunity to defend against termination.

The court of appeals affirmed the trial court.

e-Legislative Report: 2/3/2016

Editor’s Note: Yesterday, we erroneously published an e-Legislative Report from 2015. The current e-Legislative Report is below. We apologize for the confusion.

e-Legislative Report

Hello loyal e-leg report readers, here is this week’s installment of the world under the Gold Dome; as always, we welcome your feedback, thoughts, comments and questions.  This news report is designed to keep you up to date on the activity of interest to the bar, and to lawyers across practice areas that are happening at the Capitol.

Things move pretty fast this time of year, and we’re off to a busy start – the legislature has released over 300 bills for consideration, committees are meeting and negotiations and amendments are happening hundreds of times a day.  The capitol is humming for sure!

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

CBA Legislative Policy Committee

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

LPC Meeting held Friday, January 29, 2016

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

SB 16-013 Concerning Statutory Changes Related to the Office of the Child Protection

The bill addresses several items in the statutes relating to the office of the child protection ombudsman (office), including:

Clarifying that the child protection ombudsman board’s (board) duties are advisory only;  Shifting the responsibility for accountability in policies and procedures from the board to the office; Clarifying that the ombudsman cannot be subpoenaed by independent parties to testify in personal custody proceedings; and Removing the statutory requirement for an audit of the office by the office of the state auditor but leaving it at the discretion of the legislative audit committee to request such an audit at a future date.

The CBA – through the Legislative Policy Committee is seeking to amend this bill to restore the ability to subpoena the Ombudsman.  This is an important part of the process, and a vital step to access to data that might be otherwise unavailable.

HB 16-1085 Concerning Simplifying the Process for Returning to a Proper Name after Decree of Dissolution

Under current law, a party to a divorce or legal separation may request in the petition that his or her prior name be restored as part of the decree of dissolution or legal separation. This process to restore a prior name does not involve a background check or publication of the name. However, if the party does not change his or her name at the time the decree of dissolution or legal separation is entered, he or she must follow the procedures for a name change under civil law that include a fingerprint-based background check and publication of the name.

Subject to certain conditions, the bill permits a party to a dissolution or legal separation action to request the restoration of his or her prior full name by filing a motion in the court that granted the divorce or legal separation. The ex-parte motion does not require notice to the other party to the divorce or legal separation. The bill includes the requirements for filing the motion and the conditions under which the court must grant the motion.
The bill also clarifies that the provisions of the adult name change statute do not apply to a party to a dissolution or legal separation action who requests restoration of a prior name pursuant to the new statute.

The CBA supports this legislation. We are working with the sponsor with respect to an amendment that would require notice be given to the other party in the dissolution.

Bills that the LPC is monitoring, watching or working on can be found at this link:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

@ the Capitol – These are the bills we are focused on:

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death

On and after the effective date of the bill, the department of revenue (department) shall make available a beneficiary designation form (form) that allows the owner or joint owners of a vehicle to arrange to transfer ownership of the vehicle to a named beneficiary upon the death of the owner or upon the death of all joint owners of the vehicle. Upon the death of the owner or of the last surviving joint owner, the beneficiary may present the form to the department and request a new title of ownership of the vehicle in the beneficiary’s name. The request must be accompanied by: Proof of the death of the vehicle’s owner or proof of the death of the last surviving joint owner of the vehicle; and the statutory fee for an application for a certificate of title.

Upon the presentation of a properly executed and notarized form and the accompanying documents and fee, the department, subject to any security interest, shall issue a new certificate of title to the beneficiary.

The transfer of ownership of a vehicle via a form is not considered testamentary and is not subject to the provisions of the “Colorado Probate Code”.
The CBA is working with the sponsor and other attorneys to ensure that the intent of the bill is harmonized with existing laws, and that it will work well once enacted into law.

HB 16-1077 Recreate Statutory Revisions Committee

The statutory revision committee created in 1977 and repealed in 1985, was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. The bill recreates the committee.  The recreated committee is comprised of 8 members, with the majority and minority party leaders of each chamber of the general assembly appointing 2 members of those bodies. The committee is staffed by the office of legislative legal services, and is charged with: Making an ongoing examination of the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms; Receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and anachronisms in the law; Recommending legislation, from time to time, to effect such changes in the law as it deems necessary in order to modify or eliminate antiquated, redundant, or contradictory laws; and Reporting its findings and recommendations from time to time to the committee on legal services and annually to the general assembly.

The CBA is working with the Sponsors to offer amendments to shape the scope and membership of this committee.  We believe that the members and expertise of the Bar Association can provide value to the committee upon enactment, and into the future, should the bill pass.

HB 16-1145 Documentary Fee For Residential Real Property

Currently, a person filing a real property conveyance document with a county clerk and recorder must pay a documentary fee if the consideration for the conveyance is more than $500. The amount of the fee is based on the consideration paid, which is the total sales price to the purchaser, unless there is evidence of a separate consideration paid for personal property.

For purposes of the documentary fee, the bill changes the determination of the consideration paid for the grant or conveyance of residential real property as follows: Eliminates any reduction for a separate consideration paid for personal property from the total sales price; Generally requires the consideration amount listed on the grant or conveyance document to be used to determine the documentary fee; and If there is no consideration amount or the amount listed on the grant or conveyance document is $500 or less, and there is a related declaration filed, then the total sales price listed on the declaration is used to determine the documentary fee.  The bill also specifies that, unless indicated as commercial or industrial real property at the time of recording, a grant or conveyance is deemed to be of residential real property for the purpose of determining the documentary fee.

The CBA has significant concerns about this bill and the effects it will have upon real property transactions across the state.  We have been working with the stakeholders and sponsors to try and improve the bill, and to try and find a solution to the documentary fee challenges, but without harming other important aspects of property transactions.

SB 16-026 Personal Rights Of Protected Persons

A guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order.  A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors.  An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person’s right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person’s access to the protected person; Modify the guardian or conservator’s duties; or Remove the guardian or conservator.
A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person’s closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person’s residence for more than 7 days; Is admitted to a medical facility for acute care or
emergency care; or Dies.

The CBA supports the intent and purpose of this legislation.  We offered testimony that outlined our belief that this was a significant bill, outlined some concerns we had for how the bill might not work well with existing statute, and reaffirmed our commitment to continuing our work with the sponsor.

New Bills of Interest

These are a few of the new bills.  They have been sent to our Sections for review and comment.  If you have any questions about these – or any other bills at the legislature, please drop me a line and I’m happy to help you however I can.

HB 16-1115 Prohibition of Sealing Municipal Domestic Violence Convictions

Under current law, conviction records related to municipal offenses are eligible for record sealing. The bill prohibits sealing a municipal assault or battery conviction or any other municipal conviction, if the conviction involves the underlying factual basis of domestic violence.

HB 16-1117 Electronic Recording for Certain Custodial Interrogation

The bill requires all law enforcement agencies to have audio-visual recording equipment available and policies and procedures in place for preserving custodial interrogations by January 1, 2017. A peace officer must record custodial interrogations occurring in a permanent detention facility if the peace officer is investigating a class 1 or 2 felony or a felony sexual assault. A peace officer does not have to record the interrogation if: the defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing; The recording equipment fails; The recording equipment is unavailable, either through damage or extraordinary circumstances; Exigent circumstances related to public safety prevent recording; or The interrogation takes place outside of Colorado.

The court may admit evidence from a custodial interrogation that is not recorded. When offering evidence from an unrecorded interrogation, if the prosecution shows by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, the court shall issue a cautionary instruction to the jury after admitting the evidence.

HB 16-1154 Employer Definition Clarify Franchisee Status

The bill clarifies that the definition of “employer” only includes a person that possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

Comment Period Open for Proposed Changes to Colorado Appellate Rules

The Colorado Supreme Court is soliciting comments regarding proposed changes to the Colorado Appellate Rules. The changes affect Rule 3.4, “Appeals from Proceedings in Dependency and Neglect,” and the corresponding forms, JDF 545 through 549. The proposed changes to Rule 3.4 include minor changes, such as changing the word “record” to “transcript” in some places, and major changes, including the court’s continued jurisdiction over the case, composition of the record on appeal, inclusion of information about the Indian Child Welfare Act, and more. A redline of the proposed changes is available here.

Comments regarding the proposed changes may be submitted in writing to Christopher Ryan, Clerk of the Colorado Supreme Court, via email or via U.S. mail to 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 6, 2016. Comments will be posted on the State Judicial website after the comment period has closed.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

New CJD 16-01 Repeals and Replaces CJD 04-03

Effective January 1, 2016, the Chief Justice Nancy Rice of the Colorado Supreme Court adopted Chief Justice Directive 16-01, “Establishment of Statewide Probation Priorities,” to replace and repeal CJD 04-03. The Chief Justice Directive updates priority lists for offender supervision for investigation, supervision, and probation performance review. The goal of the new priorities is to maximize public safety by directing offender supervision resources to the highest risk offenders.

Click here to read CJD 16-01. Click here for all of the Colorado Supreme Court Chief Justice Directives.

Three Chief Justice Directives Related to Family Law Amended

On Friday, January 1, 2016, three amended Chief Justice Directives were issued by the Colorado Supreme Court: CJD 04-06, regarding court appointments through the Office of the Child’s Representative (OCR), CJD 04-05, regarding payment of court-appointed attorney child representatives, and CJD 04-08, regarding court appointment of Child and Family Investigators (CFIs).

The changes to CJD 04-05 are due to legislation passed in 2015. HB 15-1153 transferred oversight of state-paid attorney CFIs from the Office of the Child’s Representative to the Office of the State Court Administrator, and CJD 04-05 was amended to reflect this change. CJD 04-06 was also amended to eliminate appointments of state-paid CFIs from the Office of the Child’s Representative, and to clarify GAL appointments in dependency and neglect cases, establish standards for GALs in delinquency proceedings and other cases, and require attorneys to submit a certificate of compliance with the CJD’s requirements to the OCR for all case types.

The changes to CJD 04-08 were significant. Judges who routinely appoint CFIs are encouraged to request a redline of the changes, given the volume of changes. State Judicial summarized some of the changes below:

• Regarding CFI oversight, SCAO will oversee all CFI appointments, with all state pay CFI appointments governed by CJD 04-05. OCR will have no involvement in CFI oversight or payment.
• Regarding expansion of CFI appointments, courts may expand a CFI appointment to a parental responsibility evaluation for an otherwise qualified appointee only upon written stipulation of the parties, approved by the court.
• Regarding the presumptive fee cap in private pay CFI cases, the cap increased from $2,000 to $2,750. This amount is a cap, not a flat fee.
• Regarding CFI complaints, complaints must be filed no later than one year following termination of the CFI appointment. No investigation will occur for complaints involving individuals not listed on the Statewide Roster. Regarding founded complaints, District Administrators will provide the complaint, investigation report and CFI report to regulatory agencies entitled to notice of the founded complaint, such as DORA and OARC, redacting the names, addresses and birthdates of the children and collateral witnesses, and with the redacted documents marked, “Confidential pursuant to CJD 04-08.” No complaint is required for a district to find a CFI no longer suitable for appointment and to remove the CFI from the district’s eligibility roster. When this occurs, the district must notify the SCAO of the reason for removal and SCAO will determine whether to remove the CFI from the Statewide Roster.
• Regarding Standard 2, CFIs must file JDF 1338, the Mandatory Disclosure form, to disclose the existence or nonexistence of a prior or current relationship.
• Regarding Standard 11, the “timely” filing of a report when the court has not specified a due date is defined as “at least 35 days before the trial or hearing.” Reports should not recite all information obtained during the investigation, but rather summarize legally relevant information.
• Regarding Standard 12, requests for CFI files must be written. Standard 12 now contains a default time frame for provision of the CFI file and adds a permissible rate for file duplication or scanning.
• Regarding Standard 13, CFIs shall not perform or require drug, alcohol, polygraph or other testing, inspection or evaluation unless specifically ordered by the court. Standard 13 now permits a qualified CFI to conduct drug and alcohol evaluation in addition to other CFI duties when specifically ordered. CFIs may conduct domestic violence screening if competent to do so.

For all of the Chief Justice Directives, click here.

Top Programs and Homestudies — Intellectual Property, Elder Law, Immigration, and More

Over the past few weeks, we have been featuring the Top Ten Programs and Homestudies in various practice areas. Previous posts include:

Although we addressed several substantive practice areas, we offer many more great programs not featured on the previous Top Ten lists. These are discussed today.

Intellectual Property The Annual Rocky Mountain Intellectual Property & Technology Institute is the region’s premier event for IP lawyers. The 2015 Institute featured four simultaneous tracks of sessions for attorneys, covering patents and patent litigation, trademarks/copyrights, licensing, and transactional/e-commerce. As a bonus, Odyssey Beerwerks in Arvada donated custom brews for the 2015 Institute. The 2016 IP Institute is scheduled for June 2 and 3, 2016, at the Westin Westminster. Click here for more information about the IP Institute and the 2016 conference agenda.

Elder Law Colorado CLE presents an annual mountain program for elder law practitioners, the Annual Elder Law Retreat. The 2015 Retreat, held in beautiful Snowmass, discussed social security issues, including maximizing benefits; trends in VA, including special programs and applications for long-term care; atypical beneficiary requests; financial exploitation of the elderly; long-term care planning; and much more. The dates for the 2016 Retreat have not yet been announced; stay tuned to cle.cobar.org/elder for details.

Immigration — In addition to the comprehensive reference book, Immigration Law for the Colorado Practitioner, Colorado CLE offers several great immigration programs each year. Most recently, the CBA Immigration Law Section co-sponsored the program, “Immigration Law — Asylum and Other Humanitarian Relief,” which covered U visas, T visas, VAWA, special immigrant juvenile status, asylum law, and more. Find this and other important immigration law programs here.

Alternative Dispute Resolution Colorado CLE offers many great ADR programs, but the flagstone event is the 40-hour Mediation Training. This five day live program, taught by renowned mediator Judy Mares-Dixon, presents an in-depth guide to mediation as well as several breakout sessions to practice mediation skills. The 40-hour Mediation Training will occur on January 18, 19, 20, 25, and 26, 2016. Space is limited so register today.

Workers’ Compensation — Each year, the CBA Workers’ Compensation Section co-sponsors two annual events: the Workers’ Compensation Fall Update and the Workers’ Compensation Spring Update. Topics vary from year to year but each program features case law updates and news from the Division. In addition, many times medical professionals will provide education on particular types of injuries, including psychological injuries. More information about CLE’s workers’ compensation offerings can be found here.

Health Law — Two years ago, Colorado CLE began offering an annual Health Law Symposium, co-sponsored by the CBA Health Law Section and the American Health Lawyers Association. This program offers an exceptional speaker lineup of nationally recognized health law experts focused on current issues in health law of interest and concern to practicing attorneys in the rocky mountain. Topics discussed at the 2015 Health Law Symposium include discussion of the Affordable Care Act, franchising in the health care industry, HIPAA and meaningful use, antitrust rules in the provider context, and more.

Juvenile Law Although many family law programs cover topics of interest to juvenile law practitioners, this important practice area also has its own programming. Each year, Colorado CLE presents a juvenile law update, co-sponsored by the CBA Juvenile Law Section. The 2016 Juvenile Law Program, “Ethics! Ethics! Ethics!,” is scheduled for April 1, 2016, with a focus on—you guessed it—ethics. Topics covered include implicit bias, social media, ethical challenges in juvenile defense, and more. Click here to register.

Solo/Small Firm — This technically is not a practice area, but there are myriad issues that solo practitioners face while running a law business that their biglaw counterparts do not. The Solo and Small Firm Section of the CBA puts on great programming throughout the year, including topical lunches, and hosts monthly networking meetings, the Solo in Colo blog, and much more. For information on joining the Solo and Small Firm Section, click here.

If you don’t see your practice area listed here or on the previous Top Ten posts, please let us know. If you are interested at speaking at an event in your practice area, we would love to hear from you. Contact us today!

Top Ten Family Law Programs and Homestudies

As the compliance period ends for many Colorado attorneys, we are featuring top homestudies and programs in several practice areas. Today’s focus is on family law — click here for the Top Ten Ethics Programs and Homestudies, and stay tuned for Top Ten lists in other practice areas.

10. Lesbian/Gay/Bisexual/Transgender (LGBT) Law Institute — Dignity to All Persons. Although not strictly a family law program, this informative Institute discussed several issues of interest to family law practitioners, including Colorado’s litigation path to same-sex marriage, a discussion of polyamory, a point-counterpoint panel discussion of the Supreme Court’s decision in Obergefell v. Hodges, and more. Eleven general credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

9. Civil Unions — Legal Consequences for Family Law and Trust & Estate Practitioners. In May 2013, the Colorado Civil Unions Act became effective, allowing civil unions for same sex couples. This program discussed the changes to Title 14 and Title 19, C.R.S., and predicted consequences from the enactment of the Civil Unions Act. Three general credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

8. 33rd Annual National CLE Conference — Family Law. This annual conference in gorgeous Vail will highlight several important topics, including custody and placement issues for special needs children, tax aspects of divorce, and complex personalities in family law matters. Twenty-one general credits, including 3.6 ethics credits; only available as live program.

7. The Difficult Client: Annual Advanced Family Law Institute 2014. Most lawyers are prepared to address difficult legal issues, but what about difficult clients? Narcissistic, angry, defiant, and criminal clients cross all demographic backgrounds, but none are easy to represent. Family law practitioners encounter many difficult clients, and this program aims to provide practitioners with tools to deal with them. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

6. Trials and Tribulations: Preparing for Permanent Orders in Family Law — Family Law Fall Update 2014. This program details trends in family law, including an interactive ethics program on Rule 45 subpoenas, the most common grievances, emerging trends in Colorado family law, a judges’ panel on effective trial strategies and preparation, and more. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

5. Family Law Basic Skills. An ideal program for practitioners just entering family law, this event provides a comprehensive toolkit of skills for family law attorneys. Hear about ethics, jurisdiction, Rule 16.2, bankruptcy, collaborative law, criminal law issues in family law, low income issues, childhood development, juvenile issues, child support and maintenance, separation agreements, and more. Seventeen general credits, including 1.8 ethics credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and here for the 2013 program.

4. Civility, Cultural Competence, and Challenging Issues — Family Law Fall Update 2015. Faculty members at this program discuss civility in the practice of law and how to bring it back. Cultural competence refers to an ability to work with people of different cultural and socio-economic backgrounds. Challenging issues include everything from domestic violence to military divorce to LGBT issues. In addition to these topics, the program discusses case law updates and rule changes. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

3. Family Law Spring Update 2015. Stay up to date with recent changes in family law practice, including legislative and case law updates, imputation of passive and earned income, premarital and marital agreements, LGBT issues, out-of-court legal services, complex financial issues, and more. Eight general credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

2. So You Want to Be A Super Lawyer: Best Practices for Family Law Attorneys In and Out of the Courtroom — Annual Advanced Family Law Conference 2015. Regardless of inclusion in a “Super Lawyers”-type publication, every attorney wants to be the best lawyer they can be. This program provides tools to help family law attorneys excel, including tips for organizing all the pieces of a case, how to address thorny evidence issues, getting the best bang for your buck at mediation, view from the bench, balancing client interests with the best interests of the child, and more. Nine general credits, including one ethics credit; available as CD homestudy, MP3 audio homestudy, or Video OnDemand.

1. Annual Family Law Institute. Every summer, Colorado’s family law practitioners gather in the mountains to learn about the latest family law issues — and also enjoy fun events like Hawaiian Shirt Day, a wine tasting event, hiking, and more. Topics covered at the 2015 Institute included marijuana and parenting time, parenting plans for infants, sex addiction and divorce, spoliation, real estate transfers in family law, a judges’ panel on maintenance, and more. Twenty-seven general credits, including four ethics credits; available as CD homestudy, MP3 audio homestudy, or Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 Institute and click here for the 2013 Institute.

Tenth Circuit: Miller v. Alabama Only Affected Mandatory Life Sentences for Juvenile Offenders

The Tenth Circuit Court of Appeals issued its opinion in Davis v. McCollum on Tuesday, August 25, 2015.

When he was 16, Johnny Davis was involved in a botched convenience store robbery that resulted in the murder of the store clerk. In 1992, under the Oklahoma sentencing scheme in effect at the time, he was sentenced to a discretionary sentence of life imprisonment without the possibility of parole. Davis appealed, and the OCCA affirmed his sentence in 1995 on direct appeal. He did not appeal the OCCA’s determination and his sentence became final. In June 2013, Davis filed a pro se application for postconviction relief in state court, which claimed his age at the time of the offense precluded the sentence of life without parole. Two weeks later, with the assistance of counsel, he filed a second application, asserting the same claims. The state court denied his applications and the OCCA affirmed those denials.

In May 2014, Davis filed a pro se federal habeas petition, asserting that (1) his life without parole sentence violated the Constitution because of the new standard expressed by the Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012); (2) his counsel was ineffective at trial and on appeal; and (3) as a juvenile offender, his sentence was unconstitutional. The district court denied him a COA, finding his second and third claims were time-barred and the first issue lacked merit because Miller was inapposite. Davis appealed.

The Tenth Circuit, using AEDPA deference, agreed with the district court that the second and third claims were time-barred. Because his conviction became final before the enactment of AEDPA, his deadline to file was in April 1997. The Tenth Circuit next addressed whether Miller created a new constitutional rule for all cases in which juvenile offenders were sentenced to life without the possibility of parole. The Tenth Circuit noted that Miller only created a new rule for cases in which a juvenile offender was sentenced under a mandatory sentencing scheme; because the Oklahoma court had discretion to impose life with the possibility of parole, Miller was inapplicable to Davis’s case.

The district court’s denial of a COA to Davis was affirmed.

Finalists for Child Protection Ombudsman Announced

On Friday, November 6, 2015, the Colorado Child Protection Ombudsman Board announced five finalists to be considered for appointment as the Child Protection Ombudsman. The five finalists are William Betts, Dennis Goodwin, Amy Hendrickson, Claudia Ponce Joly, and Stephanie Villafuerte. Comments regarding the five finalists may be emailed to Terry Scanlon and must be received no later than close of business on November 19, 2015. The Child Protection Ombudsman Board will conduct interviews with the five finalists at a publicly scheduled meeting on Tuesday, November 10, 2015 in the Ralph Carr Judicial Center. The Board will determine which finalist to appoint as Child Protection Ombudsman at another publicly scheduled meeting on Friday, November 20, 2015. The appointee must pass a criminal background check. For more information about the Child Protection Ombudsman program, click here.