September 1, 2015

Colorado Court of Appeals: Retroactive Application of Marijuana Decriminalization Appropriate for Non-Final Sentences

The Colorado Court of Appeals issued its opinion in People v. Boyd on Thursday, August 13, 2015.

Marijuana—Possession—Presumption of Innocence—Burden of Proof—Voir Dire—Amendment 64—Retroactive Application.

An undercover police officer approached defendant and her boyfriend while they were in the boyfriend’s van. The officer purchased marijuana from the boyfriend. The boyfriend put the cash received from the officer on the van’s dashboard. Defendant and her boyfriend then drove away. Other police officers stopped the van and arrested defendant and her boyfriend. The officers found a small amount of marijuana and the cash from the undercover officer in defendant’s pocket. A jury convicted defendant of possession of marijuana and attempted distribution of marijuana.

Defendant contended, for the first time on appeal, that certain comments by the trial court during voir dire incorrectly instructed the prospective jurors, including those ultimately seated, regarding the presumption of innocence. Although the trial court’s comments were not a good statement of the law, they were not instructions and did not reflect adversely on defendant or on the issue of her innocence. The written jury instructions correctly stated the burden of proof and the presumption of innocence. Therefore, the comments did not constitute plain error in this case.

Defendant also argued that Amendment 64 applies retroactively to decriminalize her possession of marijuana, and consequently, her conviction for possession of less than one ounce of marijuana should be vacated. Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts “are not unlawful.” Convicted criminal defendants are entitled to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” Defendant was found guilty on August 8, 2012, and sentenced and convicted on November 14, 2012. Thus, because her appeal remains pending, her conviction for possession of less than one ounce of marijuana was vacated.

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

Colorado’s Lawful Activities Statute Does Not Protect Employees’ Medical Marijuana Use

Lipinsky-PrattBy Lino Lipinsky and Joel Pratt

On June 15, the Colorado Supreme Court ruled in Coats v. Dish Network, LLC, No. 13SC394, 2015 CO 44 (2015), that employers with a drug-free workplace policy have the right to take adverse action against employees who test positive for marijuana, even if the employees fully comply with the state’s medical marijuana laws, do not use marijuana at the workplace, and are not impaired on the job. This landmark decision affirms the right of employers to require that their employees comply with all federal drug laws, regardless of their states’ marijuana laws.

The plaintiff, Brandon Coats, a quadriplegic as a result of an automobile accident, failed a random drug test required by his employer, Dish Network. Mr. Coats argued that his use of medical marijuana was the only means by which he could control his leg spasms. Dish Network did not contest that Mr. Coats had no work-related problems other than the failed drug test. There was no dispute that Mr. Coats used marijuana only at home and had a valid Colorado medical marijuana card.

The court rejected the plaintiff’s argument that the Colorado lawful off-duty activities statute, Colo. Rev. Stat. § 24-34-402.5, protected his use of medical marijuana at home. That statute bars employers from taking adverse employment action against employers for “lawful” activities conducted away from work.

The Colorado Supreme Court narrowly focused on the definition of “lawful” in the statute and declined to reach any other issue. Mr. Coats’s attorney argued that the definition encompasses activities legal under state law, regardless of their status under federal law. Dish Network disagreed, arguing that the word “lawful” referred to activities legal under both state and federal law.

A unanimous court, with Justice Márquez not participating, agreed with Dish Network. The court held that the word “lawful” should be interpreted according to its generally accepted meaning, and that the Colorado legislature included no language indicating that the word should refer to state law alone. Colorado’s lawful activities statute thus only protects employees engaged in activities that are legal under both state and federal law.

Because the federal Controlled Substances Act lists marijuana as a Schedule I controlled substance and prohibits its possession, manufacture, sale, or use, medical marijuana remains illegal under federal law. Accordingly, Colorado’s lawful activities statute does not protect an employee using medical marijuana because such use is prohibited by federal law.

The trial court dismissed Mr. Coats’s claim against Dish Network. A split panel of the Colorado Court of Appeals affirmed the trial court’s decision, holding that Colorado’s lawful activities statute incorporated both state and federal law, and therefore, does not protect activity illegal under federal law. Judge Webb dissented, arguing that the reach of “lawful activities” should be determined exclusively by state law, under which marijuana use is considered lawful. The supreme court affirmed the court of appeals’ ruling.

The Coats decision reaffirms the right of employers to manage and to enforce drug-free workplaces. Employers will not have to make individualized decisions about whether a particular employee’s marijuana use is “lawful” under state law for bona fide medicinal purposes; instead, employers can institute and enforce broad drug-free workplace policies.

Further, the Coats decision avoids potential problems with the conflict between state and federal law. Colorado employers who contract with the federal government generally must comply with the federal Drug-Free Workplaces Act, which requires drug-free workplaces. Similarly, employers engaged in the transportation industry may be required to comply with the Omnibus Transportation Employee Testing Act of 1991, which mandates drug testing of certain transportation workers.

Had the court ruled in favor of Mr. Coats, employers subject to federal drug-free workplace regulations would have faced conflicting obligations. Colorado law would have demanded that employers tolerate certain employee drug use, while federal law would have demanded that employers take action against those same employees. The court avoided that problem by clarifying that Colorado law only protects employees engaged in activities that are lawful under state and federal law.

Employers also need to recognize the limits of this decision. Importantly, the court did not hold that employers have unfettered rights to fire or to discipline employees for the use of marijuana. Employers must still follow the law. Dish Network likely prevailed because it had adopted a clear and broad drug-free workplace policy, engaged in random drug testing, and applied its policies neutrally. An employer that selectively applies a policy could be vulnerable to discrimination claims.

Additionally, the Coats decision does not resolve the preemption issues surrounding Colorado’s medical and recreational marijuana amendments. A number of other pending cases, including Nebraska’s and Oklahoma’s challenge to Colorado’s marijuana laws filed in the U.S. Supreme Court, raise the preemption issue head-

Lino Lipinsky de Orlov is a litigation partner in the Denver office of McKenna Long & Aldridge, LLP.  He represents clients in all aspects of commercial litigation, mediation, arbitration, and appeals.  He has developed particular experience in complex business cases, particularly those involving creditor’s rights, real estate, trade secrets, and employment disputes.  Mr. Lipinsky also frequently speaks and writes on legal issues relating to technology, employment law, and ethics.   He is a member of the Colorado Bar Association’s Board of Governors and serves on the Board of the Colorado Judicial Institute.  He is a former President of the Faculty of Federal Advocates.  Among his honors, Chambers USA has recognized Mr. Lipinsky as one of Colorado’s leading general commercial litigators, and he has been included in The Best Lawyers in America.  He received his A.B. degree, magna cum laude, from Brown University and his J.D. degree from New York University School of Law, where he was a member of the New York University Law Review.

Joel M. Pratt is a member of McKenna Long & Aldridge’s Government Contracts Department in the Denver office. Mr. Pratt graduated, magna cum laude, from the University of Michigan Law School in 2014 where he served on the Michigan Law Review as the Executive Notes Editor and an Associate Editor. While earning his J.D., Mr. Pratt served as a judicial intern for the Honorable Alan M. Loeb, was a student attorney for the Michigan Unemployment Insurance Project and the Child Advocacy Law Clinic, and published several articles in legal academic journals across the country. Prior to joining the firm, Mr. Pratt worked as a law clerk for the Office of the Vice President and General Counsel of the University of Michigan. Mr. Pratt graduated with distinction in 2009 from the University of Colorado with a Bachelor of Arts in English Literature.  Mr. Pratt was also the winner of the University of Colorado Alumni Association Scholarship.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Supreme Court: Lawful Off-Duty Activities Not Limited to State Law

The Colorado Supreme Court issued its opinion in Coats v. Dish Network, LLC on Monday, June 15, 2015.

Labor and Employment—Protected Activities.

The Supreme Court held that under the plain language of CRS § 24-34-402.5, Colorado’s lawful activities statute, the term “lawful” refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity that is permitted by state law but unlawful under federal law, such as use of medical marijuana, are not protected by the statute. The Court therefore affirmed the court of appeals’ opinion.

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

Final Bills of 2015 Legislative Session Signed; Three Sent to Secretary of State Without Signature

CapitolbuildingOn Friday, June 5, 2015, Governor Hickenlooper signed 60 bills into law and allowed three bills to become law without a signature. To date, Governor Hickenlooper has signed 362 bills into law, vetoed three bills, and allowed three to become law without a signature. The bills signed Friday are summarized here.

  • SB 15-011 – Concerning the Pilot Program for Persons with Spinal Cord Injuries Relating to the Use of Complimentary and Alternative Medicine, and, in Connection Therewith, Making an Appropriation, by Sen. Nancy Todd and Rep. Dianne Primavera. The bill continues the Medicaid Spinal Cord Injury Alternative Medicine Pilot Program and expands the program so it can serve additional clients.
  • SB 15-090Concerning the Adoption of Standards Governing Temporary Permits on Motor Vehicles for Effective Readability, and, in Connection Therewith, Making an Appropriation, by Sen. Nancy Todd and Rep. Max Tyler. The bill requires that temporary motor vehicle plates meet the same requirements regarding readability as permanent plates.
  • HB 15-1310 – Concerning the Authority of the Division of Parks and Wildlife to Acquire Real Property for their Garfield County Administrative Office and Public Service Center, and, in Connection Therewith, Making an Appropriation, by Rep. Bob Rankin and Sen. Randy Baumgardner. The bill allows the Division of Parks and Wildlife to purchase a specific property in Garfield County.
  • HB 15-1318 – Concerning the Requirements for Administering a Single Medicaid Waiver for Home- and Community-Based Services for Adults with Intellectual and Developmental Disabilities, and, in Connection Therewith, Making an Appropriation, by Rep. Dave Young and Sen. Kevin Grantham. The bill requires the Department of Health Care Policy and Financing to consolidate two waiver programs for adults with intellectual and developmental disabilities.
  • HB 15-1252 – Concerning an Extension of the Number of Years the Individual Income Tax Return Includes a Voluntary Contribution Designation for the Colorado Healthy Rivers Fund, by Rep. Diane Mitsch Bush and Sen. Jerry Sonnenberg. The bill extends the voluntary check-box contribution for the Colorado Healthy Rivers Fund until 2020.
  • HB 15-1166 – Concerning the Creation of a Tributary Groundwater Monitoring Network in the South Platte River Alluvial Aquifer, and, in Connection Therewith, Making an Appropriation, by Reps. Lori Saine & Jeni James Arndt and Sen. Vicki Marble. The bill creates a basin-wide tributary groundwater monitoring network in the South Platte River alluvial aquifer based on recommendations from a CWCB report.
  • HB 15-1283 – Concerning Marijuana Testing, and, in Connection Therewith, Creating a Reference Lab by December 31, 2015, that will House a Library of Testing Methodologies and Making an Appropriation, by Rep. Steve Lebsock and Sen. Chris Holbert. The bill requires the Department of Public Health and Environment to develop and maintain a marijuana laboratory testing reference library.
  • HB 15-1368 – Concerning the Creation of a Cross-System Response for Behavioral Health Crises Pilot Program to Serve Individuals with Intellectual or Developmental Disabilities, and, in Connection Therewith, Making an Appropriation, by Rep. Dave Young and Sen. Kevin Grantham. The bill creates a pilot program to support collaborative approaches for individuals with intellectual or developmental disabilities and a mental health or behavioral disorder.
  • HB 15-1247 – Concerning the Implementation of the Legislative Audit Committee’s Recommendations for Review of Dam Safety, by Rep. Lori Saine and Sen. Tim Neville. The bill increases the fees charged by the State Engineer for dam project design review.
  • HB 15-1248 – Concerning Limited Access by Private Child Placement Agencies to Records Relating to Child Abuse or Neglect for Purposes of Ensuring Safe Placements for Foster Children, and, in Connection Therewith, Making an Appropriation, by Rep. Jonathan Singer and Sen. Owen Hill. The bill permits one representative at each child placement agency to review records of potential foster parents for reports of abuse or neglect.
  • HB 15-1355 – Concerning Access to Personal Records Relating to a Person’s Family History, by Reps. Lori Saine & Jonathan Singer and Sens. Vicki Marble & Linda Newell. The bill allows an adult adoptee to access his or her birth certificate and that of his or her adult sibling in Colorado.
  • HB 15-1357 – Concerning the Establishment of the Ratio of Valuation for Assessment of Residential Real Property, by Reps. Lois Court & Brian DelGrosso and Sens. Tim Neville & Michael Johnston. The bill establishes the residential assessment rate for 2015-2016 and does not change it.
  • SB 15-020 – Concerning Education Regarding the Prevention of Child Sexual Abuse and Assault, and, in Connection Therewith, Making an Appropriation, by Sen. Linda Newell and Rep. Beth McCann. The bill expands the duties of the School Safety Resource Center to include providing education and materials regarding awareness and prevention of child sexual assault.
  • SB 15-109 – Concerning the Mandatory Reporting of Mistreatment Against an Adult with a Disability, by Sen. Kevin Grantham and Rep. Dave Young. The bill expands the at-risk adult reporting requirements to include adults with intellectual and developmental disabilities.
  • SB 15-195 – Concerning Appropriating to the Department of Corrections Moneys Generated as Savings from the Awarding of Achievement Earned Time to Inmates, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Pat Steadman and Rep. Millie Hamner. The bill limits the amount of earned time savings that may be used toward education and parole programs.
  • SB 15-196 – Concerning Measures to Ensure Industrial Hemp Remains Below a Delta-9 Tetrahydrocannabinol Concentration of No More than Three-Tenths of One Percent on a Dry Weight Basis, and, in Connection Therewith, Making an Appropriation, by Sens. Vicki Marble & Pat Steadman and Reps. Steve Lebsock & Lois Saine. The bill expands the industrial hemp committee and imposes new regulations on industrial hemp.
  • SB 15-220 – Concerning Security for the Colorado General Assembly, by Sens. Morgan Carroll & Bill Cadman and Reps. Crisanta Duran & Brian DelGrosso. The bill requires the Colorado State Patrol to provide protection for the members of the General Assembly.
  • SB 15-256 – Concerning the Operation of the Legislative Committee that Oversees the Colorado Health Benefit Exchange, and, in Connection Therewith, Making an Appropriation, by Sen. Ellen Roberts and Rep. Beth McCann. The bill makes several changes to the Colorado health benefit exchange committee’s duties.
  • SB 15-115 – Concerning the Sunset Review of the Medical Marijuana Programs, by Sen. Owen Hill and Rep. Ellen Roberts. The bill continues the Medical Marijuana Code until 2019 and implements some changes to the program.
  • HB 15-1063 – Concerning Prohibited Communication Concerning Patents, and, in Connection Therewith, Making an Appropriation, by Rep. Dan Pabon and Sen. David Balmer. The bill establishes a framework for communications between parties regarding patent rights.
  • HB 15-1178 – Concerning the State Engineer’s Authority to Allow Well Users to Lower the Water Table in an Area that the State Engineer Determines is Experiencing Damaging High Groundwater Levels, and, in Connection Therewith, Establishing an Emergency Dewatering Grant Program for the Purpose of Lowering the Water Table in Areas of Gilcrest, Colorado, and Sterling, Colorado and Making an Appropriation, by Reps. Lori Saine & Stephen Humphrey and Sens. Vicki Marble & Jerry Sonnenberg. The bill establishes the Emergency Dewatering Grant Program for the emergency pumping of wells.
  • HB 15-1102 – Concerning the Expansion of the “Colorado Cottage Foods Act”, and, in Connection Therewith, Increasing the Food Products a Producer Can Sell Under the Act, Requiring an Additional Disclaimer, and Making an Appropriation, by Reps. Millie Hamner & Yeulin Willett and Sens. Kerry Donovan & Kevin Grantham. The bill divides the foods that can be produced under the Cottage Foods Act into two tiers.
  • SB 15-012 – Concerning the Treatment of Child Support for Purposes of the Colorado Works Program, and, in Connection Therewith, Making an Appropriation, by Sen. John Kefalas and Rep. Brittany Pettersen. The bill allows the Department of Human Services to disregard child support income when determining eligibility for the TANF program.
  • HB 15-1219 – Concerning the Enterprise Zone Investment Tax Credit for Renewable Energy Products, and, in Connection Therewith, Making an Appropriation, by Reps. Beth McCann & Jon Becker and Sens. Mary Hodge & Jerry Sonnenberg. The bill allows a taxpayer who places a renewable energy product in an enterprise zone to receive a refund of the tax credit.
  • HB 15-1228 – Concerning the Special Fuel Excise Tax on Liquefied Petroleum Gas, and, in Connection Therewith, Making an Appropriation, by Reps. Diane Mitsch Bush & Jon Becker and Sen. Ray Scott. The bill makes several changes to the administration and collection of the special fuel excise tax program for liquefied petroleum.
  • HB 15-1350 – Concerning Performance Measures for Accrediting an Alternative Education Campus, by Rep. Brittany Pettersen and Sen. Owen Hill. The bill requires the Department of Education to convene stakeholder meetings to review statutes and rules related to performance indicators for the accreditation of alternative education campuses.
  • HB 15-1392 – Concerning Changes to the State’s Payroll System to Allow All State Employees to be Paid Twice a Month, by Reps. Dave Young & Jack Tate and Sens. Linda Newell & Tim Neville. The bill changes the pay schedule for all state employees to twice a month.
  • HB 15-1352 – Concerning Modifications to the Naturopathic Formulary of Medications that a Registered Naturopathic Doctor is Authorized to Use in the Practice of Naturopathic Medicine, by Reps. Joann Ginal & Kathleen Conti and Sens. Larry Crowder & Linda Newell. The bill expands the authority of naturopathic doctors in several ways.
  • HB 15-1353 – Concerning the Continuation of the Regulation of Conveyances, and, in Connection Therewith, Extending the Certification of Conveyances and Conveyance Mechanics, Contractors, and Inspectors of Elevators and Escalators Until July 1, 2022, by Rep. Alec Garnett and Sen. Beth Martinez Humenik. The bill extends the Elevator and Escalator Certification Act to regulate conveyances.
  • HB 15-1360 – Concerning the Use of Injection Therapy by Acupuncturists Licensed Pursuant to Article 29.5 of Title 12, Colorado Revised Statutes, by Rep. Joann Ginal and Sen. Kevin Lundberg. The bill allows licensed acupuncturists to practice injection therapy.
  • HB 15-1083 – Concerning Patient Financial Contributions for Physical Rehabilitation Services, and, in Connection Therewith, Making an Appropriation, by Rep. Dianne Primavera and Sen. Larry Crowder. The bill requires the Colorado Commission on Affordable Health Care to conduct a study of the costs of physical rehabilitation services.
  • HB 15-1261 – Concerning the Maximum Reserve for a Cash Fund with Fee Revenue, by Rep. Dave Young and Sens. Kevin Grantham & Pat Steadman. The bill alters the cash fund reserve requirement.
  • HB 15-1273 – Concerning Additional Comprehensive Reporting Requirements for School Discipline Reports, and, in Connection Therewith, Requiring a Post-Enactment Review of the Implementation of this Act and Making an Appropriation, by Rep. Polly Lawrence and Sen. Linda Newell. The bill adds sexual assaults and marijuana violations to the list of items that must be included in a safe schools report.
  • HB 15-1370 – Concerning Access to Certain Records of a County Department of Human or Social Services Containing Personal Identifying Information by an Auditor Conducting a Financial or Performance Audit of that Department, by Rep. Dianne Primavera and Sens. Lucia Guzman & Tim Neville. The bill permits an auditor access to all files of a county department of human or social services that are needed to conduct the audit.
  • SB 15-029 – Concerning a Study of Volunteer Firefighter Pension Plans in the State, and, in Connection Therewith, Making an Appropriation, by Sen. Jessie Ulibarri and Rep. Jovan Melton. The bill requires the state auditor to conduct a study of firefighter pension plans in Colorado.
  • SB 15-184 – Concerning Enforcement of Compulsory Education Requirements, by Sen. Chris Holbert and Rep. Rhonda Fields. The bill requires the chief judge in each judicial district to convene a meeting of stakeholders to find ways to address truancy other than detention.
  • SB 15-203 – Concerning Continuation of the Regulation of Debt-Management Service Providers by the Attorney General, and, in Connection Therewith, Implementing the Recommendations of the 2014 Sunset Report by the Department of Regulatory Agencies, by Sen. John Cooke and Rep. Dan Pabon. The bill continues the Uniform Debt-Management Services Act.
  • SB 15-228 – Concerning a Process for the Periodic Review of Provider Rates Under the “Colorado Medical Assistance Act”, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Bob Rankin. The bill establishes a process for the Department of Health Care Policy and Financing to review Medicare provider rates.
  • SB 15-261 – Concerning a Modification to the Statute that Specifies the Forms of Public Notice that a Public Utility May Provide Regarding a Change in the Public Utility’s Schedule of Charges to Allow a Request for an Alternative Form of Notice within the Same Formal Application that the Public Utility Files with the Public Utilities Commission When Applying for a Change in the Public Utility’s Schedule of Charges, by Sen. Jerry Sonnenberg and Rep. Dave Young. The bill allows public utilities to request rate changes during existing proceedings.
  • HB 15-1282 – Concerning the Creation of Crimes Involving Deception about Material Information in Connection with Birth Certificates, by Rep. Lois Saine and Sen. Linda Newell. The bill creates a class 2 misdemeanor for anyone who intentionally omits material information in the preparation of a birth certificate.
  • HB 15-1309 – Concerning the Placement of Interim Therapeutic Restorations by Dental Hygienists, and, in Connection Therewith, Ensuring Medicaid and Children’s Basic Health Plan Reimbursement for Services Provided Through the Use of Telehealth Related to Interim Therapeutic Restoration Procedures and Making an Appropriation, by Rep. Joann Ginal and Sen. Larry Crowder. The bill allows dental hygienists to perform therapeutic restorations.
  • HB 15-1333 – Concerning the Creation of a Regional Center Depreciation Account in the Capital Construction Fund for Maintenance of the State’s Regional Centers, and, in Connection Therewith, Making an Appropriation, by Rep. Ed Vigil and Sen. Randy Baumgardner. The bill creates the Regional Center Depreciation Account to hold moneys for depreciation and capital construction.
  • HB 15-1337 – Concerning Placement Stability for Children, by Rep. Angela Williams and Sen. Linda Newell. The bill requires a court to consider all statutory factors when placing a child for foster care.
  • HB 15-1340 – Concerning an Extension of the Period During Which the Voluntary Contribution Designation Benefiting the Colorado Multiple Sclerosis Fund will Appear on the State Individual Income Tax Return Form, by Reps. Faith Winter & Perry Buck and Sens. Beth Martinez Humenik & Linda Newell. The bill extends the Colorado Multiple Sclerosis Fund check-off through 2021.
  • HB 15-1345 – Concerning an Exemption from Certain Traffic Requirements for the Riders of a Three-Wheel Low-Speed Motorcycle, by Rep. Paul Rosenthal and Sen. Tim Neville. The bill exempts motorcyclists who ride low-speed three-wheeled motorcycles from requirements of licensure and eye protection.
  • HB 15-1366 – Concerning the Expansion of the Colorado Job Growth Incentive Tax Credit to Allow Credits for Businesses that Enter Into a Qualified Partnership with a State Institution of Higher Education, and, in Connection Therewith, Making an Appropriation, by Reps. Dan Pabon & Yeulin Willett and Sen. David Balmer. The bill allows the job growth incentive tax credit to be refundable under certain conditions.
  • HB 15-1387 – Concerning the Elimination of the Authorized Transfer of Medical Marijuana to Retail Marijuana at the Time that a Retail Marijuana Establishment License Becomes Effective, by Reps. Dan Pabon & Bob Rankin and Sens. Pat Steadman & Kent Lambert. The bill prohibits a medical marijuana facility with a retail marijuana license from transferring any of its medical marijuana to the retail establishment.
  • SB 15-192 – Concerning the Provision of a Therapeutic Alternative Drug Selection to Patients Residing in Certain Long-Term Care Facilities, by Sen. Irene Aguilar and Rep. Janak Joshi. The bill allows licensed pharmacists to provide therapeutic alternate drug selections to patients in nursing care facilities and long-term acute care hospitals if certain conditions are met.
  • SB 15-209 – Concerning an Amendment to Specified Statutes Governing the Management of the Financial Affairs of a Unit Owners’ Association Under the “Colorado Common Interest Ownership Act” so as to Exempt Communities in Which a Majority of Units Designated for Residential Use are Time Share Units, by Sen. David Balmer and Rep. Angela Williams. The bill exempts certain timeshare communities from the definitions of “common interest community” and “homeowners’ association.”
  • SB 15-210Concerning Creation of the Title Insurance Commission, and, in Connection Therewith, Making an Appropriation, by Sen. Laura Woods and Rep. Jeni James Arndt. The bill creates the Title Insurance Commission to serve as an advisory body to the Commissioner of Insurance.
  • SB 15-229 – Concerning the Creation of an Amyotrophic Lateral Sclerosis License Plate for Motor Vehicles, and, in Connection Therewith, Making an Appropriation, by Sen. Laura Woods and Reps. Janak Joshi & Diane Mitsch Bush. The bill creates an ALS license plate, available when the Rocky Mountain Chapter of the ALS Association receives 3,000 signatures of individuals committed to purchase the plate.
  • SB 15-262 – Concerning Updates to the Statutes Regulating Blanket Sickness and Accident Insurance, by Sen. Tim Neville and Rep. Angela Williams. The bill expands and clarifies the groups that may receive blanket accident and sickness insurance.
  • SB 15-267 – Concerning the Financing of Public Schools, and, in Connection Therewith, Making an Appropriation, by Sen. Owen Hill and Rep. Millie Hamner. The bill increases per-pupil funding for public schools to reflect inflation.
  • SB 15-270 – Concerning the Creation of the Office of the State Architect, and, in Connection Therewith, Adding Statewide Planning Responsibilities and Making and Reducing an Appropriation, by Sen. Kent Lambert and Rep. Bob Rankin. The bill creates the Office of the State Architect in law.
  • SB 15-271 – Concerning the Continuation of the Entities Charged with Representing the Interests of Certain Utility Consumers in Matters Heard by the Public Utilities Commission, by Sen. Jerry Sonnenberg and Rep. Jon Becker. The bill continues the Office of the Consumer Counsel and implements recommendations from the sunset review.
  • SB 15-278 – Concerning an Amendment to the Annual General Appropriation Act for the 2013-2014 Fiscal Year to Allow Unspent Moneys Appropriated for the Colorado State Capitol Dome Restoration Project to be Used for the Next Planned Phase of the Colorado State Capitol Restoration, by Sens. Kent Lambert & Pat Steadman and Rep. Millie Hamner. The bill allows the Department of Personnel and Administration to use moneys from the capitol restoration project on other projects.
  • SB 15-281 – Concerning Parent Engagement in Institute Charter Schools, by Sen. Owen Hill and Rep. Tracy Kraft-Tharp. The bill requires charter schools, rather than the Charter School Institute, to hold meetings regarding school priority implementation.
  • SB 15-283 – Concerning Debt Collection Proceedings, and, in Connection Therewith, Increasing the Scope and Value of Assets that may be Exempted, Clarifying Definitions of “Earnings”, and Specifying the Procedure for Service of Notice of Exemption and Pending Levy in Certain Garnishment Proceedings, by Sen. Laura Woods and Rep. Pete Lee. The bill modifies exemptions and procedures in certain debt collection actions.
  • SB 15-202 – Concerning the Regulation of Water Conditioning Appliances Pursuant to the Plumbing Code, by Sen. David Balmer and Rep. Dan Pabon. The bill creates three new categories of registered water conditioners.
  • HB 15-1301 – Concerning the Creation of a Credit for Tobacco Products that a Distributor Ships or Transports to an Out-of-State Consumer, and, in Connection Therewith, Creating the “Cigar On-Line Sales Equalization Act” and Making an Appropriation, by Rep. Angela Williams and Sens. Kevin Grantham & Owen Hill. The bill creates a credit against tobacco excise tax equal to Colorado excise taxes paid on tobacco products other than cigarettes sold by a distributor to an out-of-state consumer.

In addition to the bills signed Friday, the governor allowed three bills to become law without a signature. These bills are also summarized here.

  • HB 15-1316 – Concerning a Simplification of the Process by which the Public Utilities Commission may Issue a Certificate to Provide Taxicab Service in Certain Metropolitan Counties, by Reps. Steve Lebsock & Dan Thurlow and Sens. Owen Hill & Jessie Ulibarri. The bill changes the prerequisites for an applicant seeking authorization to provide taxicab service within certain counties.
  • SB 15-067 – Concerning an Increase in the Class of Offense for Certain Acts of Assault Against Persons Engaged in Performing their Duties as Emergency Responders, by Sen. John Cooke and Rep. Janak Joshi. The bill raises the classification for assault of a first responder to assault in the second degree.
  • SB 15-290 – Concerning Creation of the Colorado Student Leaders Institute, And, In Connection Therewith, Making an Appropriation, by Sen. Nancy Todd and Rep. Jim Wilson. The bill creates the Colorado Student Leaders Institute, a competitive summer residential education program for high school students.

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

Traffic Camera Bills Vetoed; PERA Reduction, School Safety, and More Bills Signed

On Wednesday, June 3, 2015, Governor Hickenlooper signed six bills into law and vetoed two bills. To date, he has signed 296 bills into law and vetoed two bills. The bills on which he took legislative action Wednesday are summarized here.

Signed

  • HB 15-1391 – Concerning an Adjustment to the Total Employer Contribution Rate of the Denver Public Schools Division of the Public Employees’ Retirement Association in Connection with the Equalization Status of the Association’s Denver Public Schools Division with the Association’s School Division as Required by the Merger of the Denver Public Schools Retirement System with the Association, by Reps. Lois Court & Jim Wilson and Sen. Pat Steadman. The bill reduces the employer PERA contribution rate, effective January 1, 2015, and allows adjustment of the employer contribution rate every five years.
  • SB 15-213Concerning the Limited Waiver of Governmental Immunity for Claims Involving Public Schools for Injuries Resulting from Incidents of School Violence, by Sens. Bill Cadman & Mark Scheffel and Reps. Dickey Lee Hullinghorst & Crisanta Duran. The bill allows schools and school districts to be held liable if they fail to exercise reasonable care in protecting students and staff from reasonably foreseeable acts of violence.
  • SB 15-214 – Concerning Creating a Legislative Committee on Safety in Schools, and, in Connection Therewith, Making an Appropriation, by Sens. Mark Scheffel & Bill Cadman and Reps. Crisanta Duran & Dickey Lee Hullinghorst. The bill establishes the School Safety and Youth Mental Health Committee to study issues related to school safety and prevention of threats to safety.
  • SB 15-221 – Concerning Public Transit Officers, by Sen. John Cooke and Reps. Jessie Danielson & Kevin Priola. The bill clarifies that a public transit officer who is classified as a peace officer through his or her job is a peace officer at all times, even when off-duty.
  • HB 15-1359 – Concerning the Creation of the Achieving a Better Life Experience (ABLE) Savings Program for Individuals with Disabilities, by Reps. Jessie Danielson & Lois Landgraf and Sens. John Kefalas & Beth Martinez Humenik. The bill allows the Department of Higher Education to create the ABLE Savings Program for people with disabilities so they may create accounts exempt from federal taxable income.
  • SB 15-288Concerning the Compensation Paid to Certain Public Officials, by Sens. Randy Baumgardner & Mary Hodge and Reps. Millie Hamner & Bob Rankin. The bill aligns the salaries of legislative branch officials with the salaries of judicial branch officials.

Vetoed

  • SB 15-276 – Concerning the Elimination of the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement, by Sens. David Balmer & Morgan Carroll and Reps. Kevin Van Winkle & Stephen Humphrey. The bill would have prohibited the issuance of citations from traffic cameras with specific exceptions for toll roads and toll highways.
  • HB 15-1098 – Concerning the Elimination of the Use of Automated Surveillance Camera Vehicle Identification Systems for Traffic Law Enforcement, by Reps. Kevin Van Winkle & Steve Lebsock and Sen. Tim Neville. The bill would have required local governments to obtain voter approval before utilizing red light cameras, and would have required existing programs to receive voter approval in 2017 in order to continue.

In addition to the bills signed Wednesday, Governor Hickenlooper signed six bills into law on Thursday, bringing the total number of signed bills to 302. The bills signed Thursday are summarized below.

  • HB 15-1367 – Concerning Retail Marijuana Taxes, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Pat Steadman. The bill refers a ballot issue to voters regarding whether the state may retain and spend revenue created from retail marijuana excise taxes.
  • HB 15-1249 – Concerning Amendments to the Fees Associated with Water Pollution Control, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. KC Becker and Sen. Mary Hodge. The bill recodifies fees for clean water and drinking water programs, and adds fees for pesticide application activities and CDPHE certifications.
  • HB 15-1341 – Concerning Increasing the Penalty from a Class 6 Felony to a Class 5 Felony for Sexual Exploitation of a Child by Possession of Sexually Exploitative Material, and, in Connection Therewith, Making an Appropriation, by Reps. Kathleen Conti & Rhonda Fields and Sens. John Cooke & Michael Johnston. The bill increases the penalty for possession of certain sexually exploitative material and modifies terms concerning electronic media.
  • HB 15-1033 – Concerning Long-Term Strategies to Address Colorado’s Aging Population, and, in Connection Therewith, Creating a Strategic Action Planning Group to Develop a Comprehensive, Long-Term Action Plan for Colorado’s Aging Population and Making an Appropriation, by Rep. Dianne Primavera and Sen. Larry Crowder. The bill creates a strategic planning group to study issues facing Coloradoans age 50 and older, and outlines specific study areas.
  • HB 15-1335 – Concerning Access to Personal Records Relating to a Person’s Family History, by Reps. Lori Saine & Jonathan Singer and Sens. Vicki Marble & Linda Newell. The bill allows an adult adoptee to obtain access to a non-certified copy of an original birth certificate and amended birth certificates of adult siblings or half-siblings.
  • SB 15-206 – Concerning Phased Conservation Easement Donations for Conservation Easements Donated On or After January 1, 2015, and, in Connection Therewith, Lowering Transaction Costs for Agricultural Producers, Facilitating Endangered Species Mitigation, and Making an Appropriation, by Sens. Ellen Roberts & Mary Hodge and Reps. Alec Garnett & Jon Keyser. The bill increases the credit awarded for the first $100,000 of a conservation easement tax credit and also increases the maximum credit for a single donor.

Vetoed

  • HB 15-1390 – Concerning an Increase in the Allowable Finance Charge for Certain Consumer Credit Transactions, by Reps. Jovan Melton & Jack Tate and Sens. Chris Holbert & Cheri Jahn. The bill would have increased the unpaid balance limit for current tiered maximum finance charges allowed on certain supervised loans and consumer credit sales.

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

Bills Regarding COLTAF Accounts, Marijuana Concentrate Manufacture, Revision of Statutes, and More Signed

On Friday, May 29, 2015, Governor Hickenlooper signed 29 bills into law. To date, the governor has signed 287 bills into law. The bills signed Friday are summarized here.

  • HB 15-1348 – Concerning Modifications to Statutory Provisions Governing Urban Redevelopment to Promote the Equitable Financial Contribution Among Affected Public Bodies in Connection with Urban Redevelopment Projects Allocating Tax Revenues, by Reps. Dickey Lee Hullinghorst & Polly Lawrence and Sens. Rollie Heath & David Balmer. The bill creates new requirements for urban redevelopment authorities, including changes to governance, procedures to follow, and distribution of excess funds.
  • HB 15-1186 – Concerning Home- and Community-Based Services for Children with Autism, and, in Connection Therewith, Making an Appropriation, by Rep. Dave Young and Sen. Pat Steadman. The bill expands eligibility for the Autism Waiver Program by increasing the age limit from 6 years to 8 years and removing the existing per child spending cap.
  • HB 15-1305 – Concerning a Prohibition on Manufacturing Marijuana Concentrate in an Unregulated Environment Using an Inherently Hazardous Substance, and, in Connection Therewith, Making an Appropriation, by Reps. Mike Foote & Yeulin Willett and Sens. Kevin Grantham & Michael Johnston. The bill makes it a class 2 felony for an unlicensed person to manufacture marijuana concentrate using an “inherently hazardous substance,” which term is also defined.
  • HB 15-1016 – Concerning Incentives for Precipitation Harvesting, and, in Connection Therewith, Making an Appropriation, by Rep. Don Coram and Sen. Jerry Sonnenberg. The bill establishes a 10-year pilot program for collection of rooftop precipitation for non-potable purposes.
  • HB 15-1226 – Concerning Annual License Fees for Retail Food Establishments, by Rep. KC Becker and Sen. Mary Hodge. The bill removes the statutory annual license fees for retail food establishments and orders the State Board of Health to establish the fees in rule.
  • HB 15-1229 – Concerning Retaliation Against a Prosecutor, and, in Connection Therewith, Making an Appropriation, by Rep. Beth McCann and Sen. Beth Martinez Humenik. The bill creates a new class 4 felony for the crime of retaliation against a prosecutor.
  • HB 15-1281 – Concerning Newborn Congenital Heart Defect Screening Through the Use of Pulse Oximetry, and, in Connection Therewith, Making an Appropriation, by Rep. Dianne Primavera and Sen. Mary Hodge. The bill requires that all newborns born in Colorado at a facility below 7000 feet elevation be screened for heart defects using pulse oximetry.
  • SB 15-260 – Concerning Medical Marijuana Product Testing, by Sen. Irene Aguilar and Rep. Joann Ginal. The bill authorizes creation of a medical marijuana testing facility and requires that all medical marijuana be tested once the facility is created.
  • HB 15-1372 – Concerning an Increase in the Cap Placed on the Annual Fee Each Public Utility Pays to Defray the Administrative Expenses of the Agencies Within the Department of Regulatory Agencies that Address Public Utility Matters, and, in Connection Therewith, Making an Appropriation, by Reps. Max Tyler & Jon Becker and Sens. Rollie Heath & David Balmer. The bill raises the statutory limit on fixed utility fund assessments for electric and natural gas utilities in order to cover an anticipated revenue shortfall.
  • SB 15-004 – Concerning Trained Volunteer Court-Appointed Special Advocates for Youth Brought Before a Court in a Truancy Proceeding, by Sen. Cheri Jahn and Rep. Dianne Primavera. The bill allows CASA volunteers to be appointed to help juveniles in truancy proceedings.
  • SB 15-124 – Concerning the Use of Evidence-Based Practices in Response to Technical Violations of Parole, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Michael Merrifield and Rep. Pete Lee. The bill clarifies and narrows the scope of behavior that warrants arresting a parolee for a technical violation.
  • HB 15-1365 – Concerning Adding two Youth Members to the Tony Grampsas Youth Services Board, by Rep. Beth McCann and Sen. Larry Crowder. The bill allows two youth between the ages of 15 and 25 to be added to the Tony Grampsas Youth Services Board, which administers grants to community-based programs targeting youth and their families.
  • HB 15-1373 – Concerning the Creation of a Provisional Certification to Practice Speech-Language Pathology, by Rep. Jonathan Singer and Sen. Irene Aguilar. The bill allows a speech-language pathologist to obtain a provisional certification prior to completion of a fellowship.
  • HB 15-1013 – Concerning the Implementation of Recommendation Number One Set Forth in the Study of the South Platte River Alluvial Aquifer Prepared by the Colorado Water Institute Pursuant to House Bill 12-1278, by Rep. Don Coram and Sens. Jerry Sonnenberg & Mary Hodge. The bill implements the first recommendation of the Colorado Water Institute’s study of the South Platte River alluvial aquifer – namely, the bill requires the state engineer and CWCB to select two pilot projects for lowering the water table, and it also requires the state engineer to approve or propose changes to the operation of proposed recharge structures for augmentation plans.
  • HB 15-1233 – Concerning the Creation of the Respite Care Task Force, and, in Connection Therewith, Making an Appropriation, by Rep. Lois Landgraf and Sen. Irene Aguilar. The bill creates the Respite Care Task Force to study the supply and demand of respite care services in Colorado.
  • HB 15-1313 – Concerning the Creation of a Rocky Mountain National Park License Plate to Evidence that a Vehicle Has Been Registered, and, in Connection Therewith, Making an Appropriation, by Rep. KC Becker and Sen. Randy Baumgardner. The bill creates the Rocky Mountain National Park license plate, which will be available to any applicant upon payment of the $50 special plate fee and with a donation to Rocky Mountain National Park.
  • HB 15-1350 – Concerning Performance Measures for Accrediting an Alternative Education Campus, by Rep. Brittany Pettersen and Sen. Owen Hill. The bill requires the Colorado Department of Education to convene stakeholder meetings to review statutes and State Board of Education rules relating to alternative education campuses.
  • HB 15-1364 – Concerning a Limitation on the Scope of an Inspection of a Small Hydroelectric Energy Facility Conducted by the State Electrical Board, by Reps. Don Coram & Diane Mitsch Bush and Sens. Jerry Sonnenberg & Kerry Donovan. The bill clarifies when limited inspections apply to small hydroelectric facilities.
  • HB 15-1371 – Concerning an Exemption from the “Unclaimed Property Act” for Funds Held in Certain Lawyer Trust Accounts, by Reps. Dan Pabon & Yeulin Willett and Sen. Michael Johnston. The bill exempts COLTAF funds from the “Unclaimed Property Act.”
  • HB 15-1379 – Concerning Creation of Marijuana Permitted Economic Interest Registrations, and, in Connection Therewith, Making an Appropriation, by Rep. Dan Pabon and Sen. Owen Hill. The bill allows people who are not Colorado residents to apply for authorization to hold a permitted economic interest in a marijuana business.
  • SB 15-102 – Concerning the Continuation of the Securities Board, and, in Connection Therewith, Implementing the Recommendations of the 2014 Sunset Report by the Department of Regulatory Agencies, by Sen. Chris Holbert and Rep. Pete Lee. The bill implements the recommendation of the securities board sunset review by continuing the board until September 1, 2026.
  • SB 15-207 – Concerning the Authority of the State to Enter Into Lease-Purchase Agreements for the Refinancing of the Colorado Bureau of Investigation’s Grand Junction Regional Office and Forensic Laboratory, by Sens. Randy Baumgardner & Ray Scott and Rep. J. Paul Brown. The bill authorizes the state treasurer to enter into lease-purchase agreements to refinance revenue bonds used to construct the CBI Grand Junction office.
  • SB 15-208 – Concerning Capital-Related Expenditures, and, in Connection Therewith, Granting the Controller Authority to Allow Expenditures for Capital Construction Budget Appropriations if Nonmonetary Adjustments are Needed When the Legislature is Not in Session, Adding a Capital Development Committee-Approved Waiver for the Arts in Public Places Requirement, and Clarifying the Types of Capital Construction Projects to which the Arts in Public Places Requirement Applies, by Sen. John Kefalas and Rep. J. Paul Brown. The bill adds to the allowable reasons an emergency supplemental request related to a capital appropriation can be heard and acted upon between legislative sessions.
  • SB 15-212 – Concerning a Determination that Water Detention Facilities Designed to Mitigate the Adverse Effects of Storm Water Runoff Do Not Materially Injure Water Rights, by Sen. Jerry Sonnenberg and Reps. Faith Winter & Terri Carver. The bill specifies that storm water detention, infiltration, and post-wildland fire facilities that detain water do not injure water rights.
  • SB 15-185 – Concerning Provisions to Improve Police Operations, and, in Connection Therewith, Making an Appropriation, by Sen. Michael Johnston and Rep. Rhonda Fields. The bill creates the “Community Law Enforcement Action Reporting (CLEAR) Act,” which requires the Division of Criminal Justice to compile and report certain data to the General Assembly’s judiciary committees and the Colorado Commission on Criminal and Juvenile Justice.
  • SB 15-254 – Concerning an Extension of the Period During Which Certain Incentives are Available for Municipally Owned Utilities to Obtain Additional Renewable Energy Credits Based on the Installation of Solar Electric Generation Technologies, by Sen. Kevin Grantham and Rep. Pete Lee. The bill extends the deadline for municipally owned utilities to begin operating solar electric generation technologies until December 31, 2016.
  • SB 15-264 – Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law, by Sen. Michael Johnston and Rep. Daniel Kagan. The bill revises the Colorado Revised Statutes to amend or repeal obsolete, unclear, or conflicting laws.
  • SB 15-265 – Concerning Conditions that Must Be Met Before a Hospital Care Lien is Created, by Sen. Bill Cadman and Rep. Dickey Lee Hullinghorst. The bill requires hospitals to submit charges for all care provided to a person injured by a third party to all the injured person’s payors of benefits before a lien can be created.
  • HB 15-1019 – Concerning Prostitution by a Minor, and, in Connection Therewith, Minors who are Victims of Human Trafficking, by Rep. Paul Lundeen and Sen. Laura Woods. The bill establishes areas of study for the Human Trafficking Council and requires the Council to make recommendations to the General Assembly about whether legislation should be enacted regarding child prostitution and human trafficking.

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

Medical Marijuana, Statewide Ballot Initiatives, and More Bills Signed

On Monday, May 18, 2015, Governor Hickenlooper signed five bills into law. To date, he has signed 224 bills this legislative session. The bills signed Monday are summarized here.

  • HB 15-1270 – Concerning Authorization for Local Education Providers to Operate Pathways in Technology Early College High Schools, and, in Connection Therewith, Making an Appropriation, by Reps. Crisanta Duran & Mike Foote and Sens. Nancy Todd & Laura Woods. The bill authorizes the creation of a P-Tech school to prepare students for careers in industry.
  • HB 15-1274 – Concerning the Creation of Career Pathways for Students for Critical Occupations in Growing Industries, and, in Connection Therewith, Making an Appropriation, by Reps. Alec Garnett & Jovan Melton and Sens. Andy Kerr & Laura Woods. The bill requires that the Colorado Workforce Development Council design integrated career pathways in identified industries where no clear career pathways are indicated.
  • SB 15-197 – Concerning the Prescriptive Authority of Advance Practice Nurses, by Sens. Larry Crowder & Cheri Jahn and Reps. Rhonda Fields & Yeulin Willett. The bill makes several changes to the prescriptive authority of advance practice nurses, including eliminating preceptorship hours and reducing mentorship hours.
  • HB 15-1057 – Concerning the Process for a Statewide Initiative to be Placed on a Ballot, and, in Connection Therewith, Making an Appropriation, by Reps. Lois Court & Brian DelGrosso and Sens. Jerry Sonnenberg & Mary Hodge. The bill requires the Legislative Council Staff to prepare fiscal impact statements for all ballot measures submitted to the title board, not just citizen-initiated measures.
  • SB 15-014 – Concerning Marijuana Issues that are Not Regulated by the Department of Revenue, and, in Connection Therewith, Making Appropriations, by Sen. Irene Aguilar and Rep. Jonathan Singer. The bill makes several changes to the regulation of medical marijuana in Colorado, including requiring DORA to establish guidelines for physicians to follow when prescribing medical marijuana for severe pain.

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

Bills Regarding Businesses Permitted to Provide PACE Services, Release of Information Regarding Juvenile Facility Incidents, and More Signed

On Friday, May 8, 2015, Governor Hickenlooper signed 13 bills into law. To date, the governor has signed 197 bills this legislative session. Although the 2015 session has ended, the governor will continue to sign bills for the next few weeks.

The bills signed by Governor Hickenlooper on Friday are summarized here.

  • SB 15-239 – Concerning the Transfer of Vocational Rehabilitation Programs from the Department of Human Services to the Department of Labor and Employment, and, in Connection Therewith, Making an Appropriation, by Sen. Kent Lambert and Rep. Dave Young.
  • HB 15-1299 – Concerning Use of the Petroleum Storage Tank Fund for Incentives for Significant Operational Compliance with Regard to Petroleum Storage Tanks, by Reps. Millie Hamner & Dan Nordberg and Sen.  Ray Scott. The bill allows petroleum storage tank funds to be used for upgrades to both underground and above-ground tanks.
  • HB 15-1187 – Concerning Mental Health Evaluations of Licensed Veterinarians Conducted by a Veterinarian Peer Health Assistance Program as Ordered by the State Board of Veterinary Medicine, by Rep. Steve Lebsock and Sen. Leroy Garcia. The bill allows the State Board of Veterinary Medicine to require a veterinarian to undergo a mental health exam if it has reason to suspect the veterinarian has a mental health problem.
  • SB 15-137 – Concerning Business Entities Permitted to Provide the Program of All-Inclusive Care for the Elderly, by Sen. David Balmer and Reps. Brian DelGrosso & Joann Ginal. The bill allows public, private, and for-profit entities to provide care to the elderly in the PACE program.
  • SB 15-247 – Concerning the Augmentation of the Scope of Services of the State Drug Assistance Program Administered by the Department of Public Health and Environment to Authorize Funding for Prevention, Intervention, and Other Services, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Dave Young. The bill increases the scope of services provided by the AIDS drug assistance program and makes several changes to the program.
  • HB 15-1131 – Concerning a Ban on Powdered Alcohol, by Rep. JoAnn Windholz and Sen. Nancy Todd. The bill prohibits the use, sale, possession, transfer, purchase, or manufacture of powdered alcohol, with an exemption for certain institutions conducting bona fide research.
  • HB 15-1242Concerning the Right of a Medical Patient to Designate a Caregiver to Assist the Patient with Basic Tasks Following Release from a Medical Facility, by Rep. Jessie Danielson and Sen. Irene Aguilar. The bill requires that general hospitals in Colorado give a patient the option to designate at least one caregiver.
  • HB 15-1243 – Concerning Increased Spending Authority for the Division of Parks and Wildlife, and, in Connection Therewith, Establishing the Parks for Future Generations Trust Fund, Amending the Wildlife for Future Generations Trust Fund, and Giving the Division of Parks and Wildlife Explicit Spending Authority Over Moneys Received to Mitigate or Offset Adverse Impacts to the State’s Parks and Wildlife Resources, by Rep. Ed Vigil and Sen. Jerry Sonnenberg. The bill establishes the Parks for Future Generations Trust Fund, amends the Wildlife for Future Generations Trust Fund, and provides funding for both trust funds.
  • HB 15-1267 – Concerning Conditions of Probation Relating to Medical Marijuana, by Rep. Joseph Salazar and Sen. Lucia Guzman. The bill allows probationers to use and possess medical marijuana unless the offense for which they are on probation is a medical marijuana-related offense.
  • HB 15-1304 – Concerning a Plan to Study the Available Bear Management Tools Year Round to Address Bear-Human Conflicts, by Reps. Yeulin Willett  & Steve Lebsock and Sens. David Balmer & Ray Scott. The bill requires the Division of Parks and Wildlife to study available tools for better management of the black bear population.
  • HB 15-1284 – Concerning Measures to Enhance Program Efficiency for Shared Photovoltaic Energy Generation Facilities, by Reps. Faith Winter & Kit Roupe and Sens. Kevin Grantham and Mary Hodge. The bill eliminates population requirements for community solar garden use across counties.
  • HB 15-1015 – Concerning the Creation of an Interstate Compact Allowing States that Enter the Compact to Share Emergency Medical Service Providers Under Certain Circumstances, by Rep. Faith Winter and Sen. John Cooke. The bill allows the governor to enter into a compact with other states to enable emergency medical service providers to provide services in Colorado.
  • HB 15-1134 – Concerning the New Vehicle Exemption for Emissions Testing of Heavier Diesel Vehicles with a Model Year That is No Older than 2014, by Rep. Don Coram and Sen. John Cooke. The bill extends the new vehicle exemption for heavy diesels to six years as long as the vehicle has a model year of 2014 or later.

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

Colorado Court of Appeals: Specific Statutory Medical Marijuana Registry Offenses Not Exclusive Means of Prosecution for Violations

The Colorado Court of Appeals issued its opinion in People v. Montante on Thursday, April 9, 2015.

Physician—Medical Marijuana—Attempt to Influence a Public Servant—Lesser Non-Included Offense—Jury Instructions—Unconstitutionally Vague—First Amendment—Motion to Suppress—Expert Witness.

Defendant worked as a contract physician at a medical marijuana clinic. Defendant issued “Nick Moser,” an undercover police detective, a Physician Certification stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana despite the fact that Moser did not suffer from any medical conditions. Defendant was charged and convicted of attempt to influence a public servant.

On appeal, defendant argued that the trial court erred in denying his pretrial motion to dismiss the charge because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute. Although the statute could apply to a physician’s recommending medical marijuana in a Physician Certification, it does not preclude prosecution for defendant’s conduct under the attempt to influence a public servant statute.

Defendant argued that the trial court erred in denying his request for a lesser non-included offense jury instruction on medical marijuana registry fraud under CRS § 18-18-406.3(2)(a). There was no evidentiary basis on which the jury rationally could have convicted defendant of medical marijuana registry fraud but acquitted him of attempt to influence a public servant. Consequently, the jury could not rationally have convicted defendant of the lesser offense and acquitted him of the greater. Accordingly, the trial court did not err in rejecting defendant’s tendered instruction.

Defendant argued that the attempt to influence a public servant statute is unconstitutional because it is vague as applied to him and violates his free speech rights under the First Amendment. The statute was sufficiently clear that it prohibited defendant’s alleged conduct. Furthermore, false representations such as those made by defendant are not protected by the First Amendment.

Defendant argued that the trial court erred in denying his motion to suppress because the trial court incorrectly concluded that he was not in custody at the time the statements were made. The interview took place at defendant’s clinic, he was not coerced, and the statements were made voluntarily. Therefore, defendant was not in custody when the interview took place and Miranda warnings were not required.

Defendant argued that the trial court erred in admitting the prosecution’s expert testimony on general medical assessments, examinations of patients, and establishing a bona fide physician-patient relationship. The physician was qualified as an expert, and his testimony could have assisted the jury in determining whether defendant’s representations were false. Therefore, the trial court did not abuse its discretion in determining that the testimony met the requirements of CRE 702 and was not excludable under CRE 403. The judgment was affirmed.

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

Law Week: New Federal Ethics Rule Precludes Colorado Attorneys Practicing in U.S. District Court from Assisting Clients in Complying with State Marijuana Laws

Editor’s note: This article originally appeared in Law Week Colorado on November 24, 2014. Reprinted with permission.

LipinskySmithBy Lino S. Lipinsky de Orlov and Mason J. Smith

On November 17, the U.S. District Court for the District of Colorado announced an amendment to its Local Rules that arguably will preclude members of the U.S. District Court bar from representing marijuana-related businesses. The U.S. District Court has opted out of comment 14 to Rule 1.2( d) of the Colorado Rules of Professional Conduct, which allows Colorado attorneys to assist clients with conduct-permitted under the Colorado marijuana laws, but not under federal law.

Under the new amendment to Local Rule D.C.COLO.L.Atty.R. 2(b)(2), which takes effect on December 1, practitioners in the U.S. District Court will be permitted to advise clients regarding the “validity, scope, and meaning” of Colorado’s marijuana laws, but may not “assist a client in conduct that the lawyer reasonably believes is permitted by” such laws. The U.S. District Court’s distinction between advice concerning the interpretation of Colorado’s marijuana laws and assistance with “conduct” creates a significant split in the ethical rules applicable to state and federal practitioners in Colorado.

Rule 1.2(d) of Colorado’s Rules of Professional Conduct prohibits attorneys from “counsel[ing]clients to engage, or assist[ing] a client, in conduct that the lawyer knows is criminal. . . .” Colo. RPC 1.2( d). Because the sale, use, and possession of marijuana remain illegal under the federal Controlled Substances Act, Rule 1.2(d) on its face prohibits Colorado attorneys from counseling or assisting clients who seek to comply with the state’s laws on medical and recreational marijuana. On March 24, 2014, the Colorado Supreme Court adopted comment 14 by a 5-2 vote in an attempt to resolve this issue. Comment 14 expressly allows lawyers to “assist a client in conduct that the lawyer reasonably believes is permitted by [Colorado’s marijuana-related] constitutional provisions” and their implementing statutes and regulations. (Emphasis added.) The lawyer, however, must also “advise the client regarding related federal law and policy.”

As we wrote in our article that appeared in the October 20, 2014 issue of Law Week Colorado, the U.S. District Court typically adopts Colorado’s Rules of Professional Conduct. In some instances, however, the Court opts out of particular sections of rules or comments based upon its own views on attorney ethics. On November 17, 2014, the Court made good on its October 10, 2014 proposal to opt out of comment 14. This comes as no surprise. The federal bench is no doubt uneasy about permitting attorneys to facilitate conduct that, while legal under state law, conflicts with federal law.

The Court’s language taking exception to comment 14 states that the Court will not adopt the comment, “except that a lawyer may advise a client regarding the validity, scope, and meaning of [the medical and recreational marijuana provisions of the Colorado Constitution] and the statutes, regulations, orders, and other state or local provisions implementing them. . . .” (Emphasis added). The exception also mirrors the state requirement that practitioners “also advise the client regarding related federal law and policy.”

The U.S. District Court has therefore drawn a fine line between generally “advising” a client and “assisting a client in conduct.” Presumably, the federal court’s version of Rule 1.2 permits an attorney to explain Colorado’s marijuana laws, but requires the attorney to stop short of facilitating compliance with such laws because—under these circumstances—compliance with state law would, in many cases, result in commission of a federal crime.

The other comments to Rule 1.2 provide limited guidance: “There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity,” and “the fact that a client uses advice in a course of action that is criminal or fraudulent” is not enough by itself to make a lawyer a party to an illegal course of action. RPC 1.2 cmt. 9 (emphasis added). But this critical barrier between appropriate and sanctionable counseling remains unclear. Another comment to Rule 1.2 states, for example, that “a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability.” RPC 1.2, cmt. 10 (emphasis added). It seems that, by analogy, an attorney’s participation in lease negotiations regarding a property that will house a marijuana grow operation would be prohibited under the U.S. District Court’s rules, as would an attorney’s review and recommendations regarding a license for marijuana retail sale. Such legal work could, at least in theory, result in disciplinary action against federal litigators.

The U.S. District Court’s decision to opt out of comment 14 gives rise to two major issues. First, it creates a rift between attorneys admitted to practice only before the Colorado state courts and those attorneys admitted to practice in the U.S. District Court. Second, it leaves those attorneys subject to the federal rules guessing about the critical point at which legal advice becomes the facilitation of conduct. In any event, members of both bars should be cognizant of these inconsistent ethical standards as attorneys encounter more and more clients interested in diving into Colorado’s growing marijuana industry.

Until this issue is resolved, federal practitioners should be conservative in rendering any legal advice in connection with marijuana. All attorneys practicing in Colorado should at least advise all clients as to the illegality of marijuana under federal law. Those admitted to the federal bar should also, at the very least, avoid (1) participating directly in conduct that could technically constitute a federal crime or (2) affirmatively advising or encouraging clients to take specific courses of action regarding the growth, use, possession, or sale of marijuana.

Lino Lipinsky de Orlov is a litigation partner in the Denver office of McKenna Long & Aldridge, LLP.  He represents clients in all aspects of commercial litigation, mediation, arbitration, and appeals.  He has developed particular experience in complex business cases, particularly those involving creditor’s rights, real estate, trade secrets, and employment disputes.  Mr. Lipinsky also frequently speaks and writes on legal issues relating to technology, employment law, and ethics.   He is a member of the Colorado Bar Association’s Board of Governors and serves on the Board of the Colorado Judicial Institute.  He is Immediate Past President of the Faculty of Federal Advocates.  Among his honors, Chambers USA has recognized Mr. Lipinsky as one of Colorado’s leading general commercial litigators, and he has been included in The Best Lawyers in America.  He received his A.B. degree, magna cum laude, from Brown University and his J.D. degree from New York University School of Law, where he was a member of the New York University Law Review.

Mason Smith is an in-house attorney at Amazon.  He previously worked as an associate at the Denver office of McKenna Long & Aldridge, LLP and as an extern for the Hon. Judge Christine M. Arguello of the U.S. District Court, District of Colorado.  Mr. Smith is a graduate of The George Washington University Law School, where he was a member of The George Washington University Law Review.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Medical Marijuana Grower Not Entitled to Bring § 1983 Action for Destruction of Plants

The Colorado Court of Appeals issued its opinion in Young v. Larimer County Sheriff’s Office on Thursday, September 11, 2014.

Medical Marijuana Amendment—42 USC § 1983—Seizure—Taking—Constitution.

Young leased property where he grew marijuana plants and distributed marijuana for medical use under the Medical Marijuana Amendment (MMA), Article XVIII, §14 of the Colorado Constitution. After obtaining search warrants, sheriff’s deputies entered Young’s property and seized forty-two marijuana plants by cutting them off just above the roots. This action killed the plants. After Young was acquitted of all charges against him, he brought this action for damages on the basis that the deputies had killed the plants seized from him. The trial court entered summary judgment against Young.

On appeal, Young argued that 42 USC § 1983 provides a remedy for state action that violates a right created by the MMA. Section 14(2)(e) of the MMA requires that medical marijuana that has been seized be returned upon acquittal of criminal charges. However, because federal law criminalizes possession of marijuana, such a claim is not cognizable under § 1983. Further, no express or implied private right of action exists under the MMA. Therefore, the trial court properly entered summary judgment on this claim.

Defendants argued that because Young’s complaint alleged a taking only under federal law (which is foreclosed by the federal criminalization of marijuana), a state law takings claim under Article II, §15 of the Colorado Constitution should not be considered. A valid seizure under criminal law does not constitute a taking for which the owner is entitled to just compensation, even if the defendant is later acquitted of the charges. Therefore, the trial court properly entered summary judgment on the state law takings claim. The judgment was affirmed.

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

Colorado Supreme Court: Trial Court Erroneously Denied Party Its Counsel of Choice

The Colorado Supreme Court issued its opinion in In re People v. Hoskins on Monday, September 8, 2014.

Disqualification of Retained Counsel of Choice—Colo. RPC 1.9(a).

In this original CAR 21 proceeding, the Supreme Court reviewed the trial court’s order disqualifying petitioners’ retained counsel of choice under Colo. RPC 1.9(a). The trial court found that counsel previously represented another party in the same matter for which counsel now represents petitioners, and that the former client and petitioners have materially adverse interests. The Court held that, because the record before it was insufficient to support a finding that the interests of petitioners and the former client are materially adverse in this criminal proceeding, the trial court abused its discretion by disqualifying petitioners’ retained counsel of choice under Colo. RPC 1.9(a). Accordingly, the Court made the rule absolute, reversed the trial court’s order disqualifying petitioners’ counsel of choice, and remanded the case to the trial court for further proceedings.

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