May 21, 2013

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HB 13-1200: Creation of the “Uniform Deployed Parents Custody and Visitation Act”

March 28, 2013 by Leave a Comment

On February 1, 2013, Rep. Bob Gardner and Sen. Ellen Roberts introduced HB 13-1200 - Concerning the “Uniform Deployed Parents Custody and Visitation Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Colorado Commission on Uniform State Laws

The bill establishes the ““Uniform Deployed Parents Custody and Visitation Act” (act). Provisions of the act address:

  • Custodial responsibility, caretaking, and decision-making authority during the deployment of one parent who is a service member;
  • Procedures for granting custodial responsibility and caretaking or decision-making authority during deployment, temporary orders, filing orders with the court, hearings, and child support; and
  • Custodial responsibility, visitation, and temporary orders after return from deployment and termination of temporary agreements and orders

The CBA LPC voted to oppose the introduced version of the bill but is also working with the sponsors to find compromise language to various sections of the bill. The House gave final approval on March 19; the bill is assigned to the Judiciary Committee in the Senate.

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U.S. Department of Labor Expands Family and Medical Leave Act

February 11, 2013 by Leave a Comment

On Tuesday, February 5, 2013, the U.S. Department of Labor issued a final rule expanding two provisions of the Family and Medical Leave Act (FMLA). The final rule was issued on the 20th anniversary of the original signing of FMLA in order to commemorate the Act. The FMLA’s first expansion implements congressional amendments regarding leave for families of service members, and the second expansion modifies existing rules to allow more coverage to airline personnel.

The modifications to FMLA for families of service members now allow families to take up to 26 weeks of leave to care for a family member who is a current service member and has a serious injury or illness. It also created qualified exigency leave, which allows service members or their families to take up to 12 weeks of leave when exigent circumstances arise, such as the departure of a spouse for active duty or the welcome home from active duty.

The second expansion of FMLA regards flight crews and airline personnel. Because of the unique way their hours are calculated, airline personnel and flight crews are frequently unable to take advantage of FMLA leave. The new legislation allows the Department of Labor to tailor regulations to these uniquely situated employees.

The amendments to FMLA are expected to be extremely beneficial to employees, service members, and their families. For more information on FMLA, click here. For the DOL press release on the changes, click here.

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Tenth Circuit: Colorado’s Authority to Regulate Hazardous Waste at Army Depot Preempted by 50 U.S.C. §§ 1521 and 1512a

September 7, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Colorado Department of Public Health and Environment v. United States on Tuesday, September 4, 2012.

The United States has for many years stored chemical weapons at the Army’s depot near Pueblo, Colorado. Through RCRA, Congress authorized states to administer their own hazardous waste programs, which Colorado does through the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (CDPHE). The CDPHE sought to enforce its regulations prohibiting storage of certain hazardous waste, 6 C.C.R. §268.50, against the Depot. The district court dismissed the case due to federal law preemption and the Tenth Circuit affirmed.

In 1985, Congress enacted 50 U.S.C § 1521, which directed the Secretary of Defense to destroy the stockpiles of weapons, including those at the Depot. Section 1521 has been amended several times to extend the deadline for destruction, which is currently 2017. The United States argued it could not comply with § 1521 and with Colorado’s hazardous waste law and regulations, which prohibited the continued  storage.

The Tenth Circuit found that given the level of detail Congress provided in its mandate to destroy the weapons, Colorado was preempted from enforcing its regulation against the Depot. Allowing the CDPHE to regulate the waste would “impede or interfere with the accomplishment of the objectives and purposes of 50 U.S.C. §§ 1512a and 1521.”

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Tenth Circuit: State Employment and Tort Claims Barred by Federal Enclave Doctrine

August 13, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Allison v. Boeing Laser Tech. Servs. on Friday, August 10, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner “was a civilian employee of [Respondent], a federal contractor located on Kirtland Air Force Base. Kirtland Air Force Base is a federal enclave: it is located on land that New Mexico ceded to the federal government in 1952 and 1954. Since that time the federal government has exercised exclusive jurisdiction within the boundaries of the Base. [Petitioner] was terminated . . . [and] filed suit in state court, alleging that [Respondent] discharged him in retaliation for reporting corporate fraud to the Air Force. His claims were all based on state law theories—wrongful discharge, breach of implied contract, breach of covenant of good faith and fair dealing, retaliatory discharge, prima facie tort, and defamation.”

“It is well-established that after a state has transferred authority over a tract of land creating a federal enclave, the state may no longer impose new state laws on these lands. But state laws enacted before the cession continue to apply unless Congress specifically overrides them. The question here is whether state common law causes of action recognized after the state ceded the enclave to the federal government are available on federal enclaves. This question is governed by a long string of Supreme Court precedent that makes it clear that the law on a federal enclave is the state law that governed the land at the time the federal government established the enclave, not state law enacted thereafter—unless that law was expressly adopted by the enclave’s new sovereign, the federal government.”

“[Petitioner]’s causes of action arose from conduct on Kirtland Air Force Base, a federal enclave established in 1954. Because [Petitioner]’s state law claims are based on legal theories created by common law after that date, they are barred unless federal statutory law allows them to go forward. Because no federal statute authorizes state employment and tort claims of the sort here to be asserted against federal contractors, [Petitioner]’s suit is barred by the federal enclave doctrine.”

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Tenth Circuit: After Supreme Court Decision, Stolen Valor Act Is Unconstitutional; Original Opinion and Judgment Vacated

July 3, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals revised its opinion in United States v. Strandlof on Monday, July 2, 2012.

The Tenth Circuit vacated the opinion and judgment it originally issued on January 27, 2012. In light of the United States Supreme Court’s decision in United States v. Alvarez, 567 U.S.___, (2012)(No. 11-210), the July 16, 2010 order of the district court dismissing the amended information and charges against Petitioner for making false claims about military service is affirmed. See United States v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010).

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Governor Hickenlooper Finishes Signing Bills Approved This Year by General Assembly

June 15, 2012 by Leave a Comment

Governor Hickenlooper’s desk got a little cleaner last week, as he signed the last of the bills approved by the General Assembly during this legislative session. In total, the governor signed 309 bills this year. He also vetoed one bill, allowed one bill to pass into law without his signature, and allowed Lieutenant Governor Joe Garcia to sign one bill.

And, don’t miss our Legislative Wrap-Up CLE Presentation on July 10 to learn how laws passed this legislative session will affect your practice! Details below.

On Wednesday, June 6, 2012, Governor Hickenlooper signed eight bills into law, including a bill designed to modernize the state’s personnel system. That bill and two others are summarized here.

  • HB 12-1321 – Concerning the State Personnel System, and, in Connection Therewith, Enacting the “Modernization of the State Personnel System Act.”
    Sponsored by Reps. Mark Ferrandino and Glenn Vaad and Sens. Mike Johnston and Keith King. The bill establishes a merit pay system to replace the old pay-for-performance system, makes changes regarding separation of state employees, and makes conditional changes to the appointment of state employees.
  • HB 12-1272 – Concerning Continuation of Enhanced Unemployment Insurance Benefits for Unemployed Individuals Participating in Approved Training Programs, and, in Connection Therewith, Making an Appropriation.
    Sponsored by Reps. Crisanta Duran and Robert Ramirez and Sen. Linda Newell. The bill extends enhanced unemployment insurance benefits for unemployed individuals involved in approved training programs until June 30, 2014.
  • HB 12-1041- Concerning the Creation of an Electronic Death Registration System in the Department of Public Health and Environment and, in Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Jeanne Labuda and Sen. Lucia Guzman. The bill creates an electronic system for reporting of death information to counties and provides an alternative to the current paper-based system that requires families to travel to the decedent’s county of death in order to receive a death certificate.

The governor continued his bill signing efforts on Thursday, June 7, 2012, when he signed two bills, including a criminal proceedings omnibus bill and a bill clarifying CORA. These two bills are summarized below.

  • HB 12-1310 – Concerning Changes to Statutory Provisions Related to Criminal Proceedings, and, in Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Bob Gardner and Sen. Morgan Carroll. The bill incorporates several other bills regarding issues of criminal procedure, and affects several areas of criminal law, including sentencing, court proceedings, sex offenses, probation, and parole. It also criminalizes the use of cathinones (bath salts).
  • HB 12-1036 – Concerning Clarification of the Exemption from the “Colorado Open Records Act” for Investigative Files.
    Sponsored by Rep. Jim Kerr and Sen. Betty Boyd. The bill clarifies that the exemption from CORA applies to investigative files for all civil, criminal, and administrative proceedings in Colorado, and also clarifies the security and chain of custody for ballots throughout the election season.

On Friday, June 8, 2012, Governor Hickenlooper signed the last bills of this legislative session. He signed 14 bills on Friday, including two bills that help military families in Colorado, HB 12-1059 and HB 12-1350. Five of the bills Governor Hickenlooper signed Friday are summarized here.

  • HB 12-1273 – Concerning the Inclusion of Approved Facility Schools Affiliated with a Hospital to the Definition of Child Care Facility for Purposes of the Child Care Contribution Income Tax Credit.
    Sponsored by Rep. Dan Pabon and Sen. Pat Steadman. The bill adds schools that are operated by nonprofit hospital facilities for the benefit of their patients to the list of eligible recipients for the state child care contribution tax credit. Facilities would be eligible to receive donations in 2013 but individuals would not be able to claim the credit until 2014.
  • HB 12S-1002 - Concerning Administration of the Unemployment Insurance Program in Order to Stabilize Unemployment Insurance Rates, and, in Connection Therewith, Facilitating the Issuance of Unemployment Revenue Bonds, Accelerating the Creation of the Division of Unemployment Insurance in the Department of Labor and Employment, and Making Technical Changes to Provisions Enacted as a Part of House Bill 11-1288 to Ensure Appropriate Transition to the New Unemployment Insurance Premium Rate Structure.
    Sponsored by Reps. Larry Liston and Dan Pabon and Sen. Cheri Jahn. The bill enables the newly created Division of Unemployment Insurance (UI) to issue revenue bonds on behalf of the UI program. It requires certification from several officials, including the Executive Director of the CDLE, the State Treasurer, and the Governor, regarding the issuance of the revenue bonds.
  • SB 12-036 – Concerning Parental Consent for the Collection of Information from Students in Schools.
    Sponsored by Sen. Shawn Mitchell and Rep. Chris Holbert. The bill requires parental consent when schools gather certain information from students, including social security numbers or information regarding religious affiliation.
  • SB 12-128 - Concerning Achieving Efficiencies in the Medicaid Long-Term Care Program Through Greater Utilization of Alternative Care Facilities.
    Sponsored by Sen. Ellen Roberts and Rep. Ken Summers. The bill authorizes the Department of Health Care Policy and Financing to enhance reimbursements to alternative care facilities for patients transferred from nursing homes and also allows the DHCPF to create a program to identify Medicaid patients who are at risk of long-term nursing home placement and could otherwise utilize alternative care facilities.
  • HB 12-1110 - Concerning the Regulation of Appraisal Management Companies, and, in Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Angela Williams and Sen. Morgan Carroll. The bill redefines the legal meaning of appraisal management companies (AMCs) and creates a licensure process in the Division of Real Estate, including establishing licensure guidelines.

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

CLE Program: 2012 Legislative Update with Michael Valdez – Tales from Under the Golden Dome

This CLE presentation will take place on Tuesday, July 10. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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HB 12-1350: Allowing Qualified Dependent Children of Military Personnel to Pay In-State Tuition Rates for College

May 4, 2012 by Leave a Comment

On April 24, 2012, Rep. Mark Waller and Sen. Mary Hodge introduced HB 12-1350 – Concerning In-State Tuition Classification for Dependents of Members of the Armed Forces. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows an institution of higher education to establish a policy that grants in-state tuition classification to a dependent of an active duty member of the United States armed forces if the dependent enrolls in the institution and graduated from a high school outside of Colorado, so long as the dependent completed at least two years at a high school in Colorado within five years prior to enrollment in the institution. On April 26, the State, Veterans, & Military Affairs Committee approved the bill and moved it to the floor of the House for consideration on 2nd Reading.

Since this summary, the bill passed second and third readings in the House and was introduced to the Senate in the State, Veterans & Military Affairs Committee, where it was unamended and put on the consent calendar for the Senate Committee of the Whole.

Summaries of other featured bills can be found here.

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Colorado Court of Appeals: Workers’ Compensation Benefits Correctly Reduced by Amount of Social Security Award but No Reduction Allowed for Retirement Benefits from Different Employer

May 2, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Zerba v. Dillon Companies, Inc. on April 26, 2012.

Offsetting Social Security Payments Against Permanent Total Disability Benefits—Offsetting Military Retirement Benefits—Equal Protection.

Both parties sought review of the final decision of the Industrial Claim Appeals Office (Panel). The Panel’s decision allowed employer, Dillon Companies, Inc., doing business as King Soopers, to offset the old-age Social Security payments (SSA) received by claimant Robert Zerba against his permanent total disability (PTD) benefits, but denied King Soopers’ request to offset Zerba’s military retirement benefits. The order was affirmed.

Zerba contended that the administrative law judge (ALJ) and Panel erred in granting King Soopers an offset of his SSA benefits against the PTD benefits he was awarded. Specifically, Zerba claimed that this offset disproportionately harms elderly and poor workers by depriving them of the full sum they were receiving when they supplemented their SSA benefits with income. However, Zerba failed to establish that his right to equal protection under the law was violated because the SSA offset has a rational basis and therefore met constitutional scrutiny. Therefore, neither the Panel nor the ALJ erred in determining that King Soopers was entitled to an offset of Zerba’s SSA benefits against the PTD award. Additionally, the ALJ did not abuse its discretion in calculating Zerba’s PTD benefits before offsetting his SSA benefits.

In its cross-appeal, King Soopers contended that the ALJ and the Panel erred in denying it an offset for Zerba’s military retirement benefits. CRS §8-42-103(1)(c)(II.5), however, does not provide for an offset of military retirement benefits because that provision permits an offset only of “employer-paid retirement benefits.” Because King Soopers is not the employer providing Zerba with the retirement benefits in question, it was not entitled to the statutory offset. Therefore, neither the Panel nor the ALJ erred in denying King Soopers’ request for an offset of Zerba’s military retirement benefits.

Summary and full case available here.

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Tenth Circuit: Claim for Suspension and Withdrawal of Air Traffic Control Specialist Certificate Not Barred by Feres Doctrine

April 25, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Newton v. Lee on Tuesday, April 24, 2012.

The Tenth Circuit affirmed in part and declined to exercise jurisdiction in an interlocutory appeal. Petitioner alleges that two officers of the Utah Air National Guard violated his due process rights when they suspended and subsequently withdrew his Air Traffic Control Specialist (ATCS) certificate, and when they suspended his employment as an Air Traffic Control Supervisor at Hill Air Force Base in Utah. The district court granted summary judgment to Respondents on Petitioner’s due process claim regarding the suspension of his employment. However, it denied summary judgment on his due process claim regarding the withdrawal of his ATCS certificate, holding this claim is not barred by qualified immunity or by intramilitary immunity under the Feres doctrine.

In this interlocutory appeal, Respondents challenge the denial of qualified immunity and intramilitary immunity on Petitioner’s ATCS certificate claim. Petitioner cross-appeals the grant of summary judgment on his employment claim. The Court held that Petitioner’s ATCS certificate is not barred by the Feres doctrine, and that it had no jurisdiction over the interlocutory appeal from the denial of qualified immunity to Respondents. The Court also declined to exercise pendent jurisdiction over Petitioner’s cross-appeal.

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Thirteen More Bills Signed Into Law This Week

April 13, 2012 by Leave a Comment

Governor Hickenlooper has signed 124 bills into law in the 2012 legislative session, including thirteen bills that he signed on Thursday, April 12. A complete list of the bills he signed Thursday can be found here. Five of these bills are highlighted below.

  • SB 12-023 – Improve Eligible Persons Access To PACE Program
    • Concerning The Program Of All-Inclusive Care For The Elderly, And, In Connection Therewith, Addressing Enrollment Of Persons Who Are Eligible For The PACE Program And Addressing How The Pace Program Works With Integrative Initiatives Involving The Medicaid Population In Colorado.
  • SB 12-030 – Public Trustee & Foreclosure Sales
    • Concerning Administrative Matters Related To A Foreclosure Sale.
  • SB 12-033 – Child Fatality Reviews
    • Concerning Adding Near Fatalities To The Responsibilities Of The Department Of Human Services Child Fatality Review Team.
  • SB 12-062 – Voting By Military Personnel
    • Concerning Procedures That Facilitate Voting By Military Personnel.
  • HB 12-1299 – Lessee Can Claim Innovative Motor Vehicle Tax Credit
    • Concerning The Specification That A Motor Vehicle Lessee Is Entitled To Claim The Innovative Motor Vehicle Tax Credit.

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

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SB 12-141: Modification of Occupancy Requirements for Home Loans In Order to Assist Deployed Soldiers in Purchasing Homes

March 9, 2012 by Leave a Comment

On January 31, 2012, Sen. Brandon Shaffer introduced SB 12-141 – Concerning Measures to Alleviate Difficulties Faced by Military Personnel in Qualifying for Home Mortgage Loans. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill eases occupancy requirements for members of the United States armed services who are deployed on active federal service for a period in excess of 60 days and who desire to obtain loans to purchase residences into which they plan to move following a period of deployment. The bill passed 3rd Reading on March 2 in the Senate and now awaits committee assignment in the House.

Since this summary, the bill has been assigned to the House Judiciary Committee.

Summaries of other featured bills can be found here.

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e-Legislative Report: Week Three, January 30, 2012

January 31, 2012 by Leave a Comment

The latest Legislative Video Update recaps Military Day at the Capitol and Phase 2 of the SMART Act. Additionally, it reviews which bills the Legislative Policy Committee moved to support during their January 27 meeting.

Military Day at the Capitol

The Senate and House honored Colorado veterans on Monday with what is affectionately called “Military Day at the Capitol.” Both Houses take time to celebrate service men and women, active and retired, through several joint resolutions. The presentations are a welcome relief from the day to day operations at the Capitol and an appropriate way to say “Thank You” to our veterans. Here is a list of the resolutions:

  • Concerning recognition of Military, Veterans, and MIA/POW Appreciation Day.
  • Concerning recognition of military personnel from Colorado who died during specific military conflicts, including those killed after September 11, 2001, during the War on Terrorism, including but not limited to those killed in Afghanistan and Iraq.
  • Concerning the U.S.S. Pueblo.
  • Concerning the designation of Interstate 70 across Colorado as part of a nationwide system of “Tuskegee Airmen Memorial Trails”.

The presentations are a welcome relief from the day to day operations at the Capitol and an appropriate way to say “Thank You” to our veterans.

SMART Act

Again, the floor was light and the committees of reference were busily working through Phase 2 of the SMART Act review process. In case you missed last week, HB 10-119, or the State Measurements for Accountable, Responsive, and Transparent (SMART) Government Act, was adopted in 2010 and part of the act requires departments of state government to suggest improved efficiency or administration through line item consolidation in the budget bill. The presentations to the committees of reference include information about:

  • The departments’ strategic plan;
  • A review of the departments’ performance-based goals and measures; and
  • A report on actual outcomes.

Phase 2 of the meetings with the committees of reference call for the committees to recommend or vote their support for the various budget priority requests from the departments they oversee; e.g. Judiciary Committees oversee the Judicial Branch (Judicial Branch, Public Defender, Alternate Defense Counsel, Office of Child Representative), Department of Corrections, and the Department of Public Safety. The committees met to discuss recommendations and votes but this process is new and the kinks are being worked out. We are hoping for a comprehensive statement from each committee detailing their votes and recommendations to the Joint Budget Committee (JBC).

As the legislature moves to the fourth week of the session, the committee calendars are starting to look like they are in midsession form in terms of workload.

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.

At the January 27 meeting of the LPC, the Committee voted to adopt as Bar Sponsored legislation a proposal from the Trust and Estate Section. The proposal is designed to put “guard rails” around the search a personal representative, trustee or their legal counsel is required to undertake when searching for a filed Designated Beneficiary Agreement (DBA). To be effective, DBAs are filed with a clerk and recorder where one of the parties is domiciled. When the law was passed in 2009 the law was silent on the duty to search for a filed DBA; as a consequence, the fiduciary or their attorney could conceivably be required to search all 64 counties in Colorado. The Trust and Estate section is seeking to limit the number of counties being searched and to limit the time frame to make the search. This situation arises when there isn’t actual knowledge of the existence of a DBA.

The LPC also voted to support the study committee or Task Force on Abuse of the Elderly that is contemplated in SB 12-078, Protection of At-Risk Adults. The sponsor of the bill is searching ultimately for a way to move the reporting of elder abuse from the current state of “urge” to “mandatory” reporting. The fiscal impact for such a change has moved the focus from a substantive change in this legislation to finding solutions through the Task Force process.

Click here for the full e-Legislative Report.

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