May 23, 2017

Judicial Ethics Opinion Released Regarding Judges Contacting Political Representatives

On Tuesday, April 4, 2017, the Colorado Judicial Ethics Advisory Board released C.J.E.A.B. Opinion 2017-01.

Opinion 2017-01 considers whether a judge may contact his or her federal congressional representatives to express approval or dissatisfaction with federal legislation or cabinet appointments if the judge reveals his or her name but not that he or she is a judge. The Colorado Judicial Ethics Advisory Board determined that a judge may do so only in the narrowest of circumstances. The Board found that such contact would appear to implicate the judge’s personal opinions, which would likely amount to impropriety or the appearance of impropriety.

The Board, citing Rule 3.2 of the Code of Judicial Conduct, noted that the judge is permitted to consult with government officials in connection with matters concerning the law, the legal system, or the administration of justice or in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties, as long as the consultation does not violate other provisions of the Code.

For the full text of C.J.E.A.B. Opinion 2017-01, click here. For all of the C.J.E.A.B. opinions, click here.

SB 17-099: Entering Into an Agreement with Other States to Adopt Popular Vote in Presidential Elections

On January 27, 2017, Sen. Andy Kerr and Rep. Paul Rosenthal introduced SB 17-099, “Concerning Adoption of an Agreement Among the States to Elect the President of the United States by National Popular Vote.”

The bill enacts and enters into with all other states joining therein the agreement among the states to elect the president of the United States by national popular vote (agreement). Among other provisions, the agreement:

  • Permits any state of the United States and the District of Columbia to become members of the agreement by enacting the agreement;
  • Requires each member state to conduct a statewide popular election for president and vice president of the United States;
  • Prior to the time set for the meeting and voting of presidential electors, requires the chief election official of each member state to determine the number of votes cast for each presidential slate in a statewide popular election and to designate the presidential slate with the largest national popular vote total as the national popular vote winner;
  • Requires the presidential elector certifying official of each member state to certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner. At least 6 days before the day fixed by law for the meeting and voting by the presidential electors, requires each member state to make a final determination of the number of popular votes cast in the state for each presidential slate and to communicate an official statement of the determination within 24 hours to the chief election official of each other member state. Requires the chief election official of each member state to treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by congress.
  • Specifies that the agreement governs the appointment of presidential electors in each member state in any year in which the agreement is in effect on July 20 in states cumulatively possessing a majority of the electoral votes;
  • Permits a state’s withdrawal from the agreement, except in limited circumstances;
  • Specifies that the agreement will terminate if the electoral college is abolished; and
  • Provides that the invalidity of any of the agreement’s provisions do not affect the remaining provisions.

The bill specifies that when the agreement becomes effective, it supersedes any conflicting provisions of Colorado law.

When the agreement becomes effective and governs the appointment of presidential electors, each presidential elector is required to vote for the presidential candidate and, by separate ballot, vice-presidential candidate nominated by the political party or political organization that nominated the presidential elector.

The bill was introduced in the Senate and assigned to the State, Veterans, & Military Affairs Committee. It was postponed indefinitely in committee.

HB 17-1155: Allowing Cure of Campaign Finance Disclosure Violations Without Penalty

On February 6, 2017, Rep. Dan Thurlow and Sen. Bob Gardner introduced HB 17-1155, “Concerning the Ability to Cure Campaign Finance Reporting Deficiencies without Penalty.”

Upon receipt of a complaint alleging that a campaign finance disclosure report contains errors or omissions, the bill requires the secretary of state to give notice to the committee or party treasurer by e-mail of the deficiencies alleged in the complaint. Upon receipt of the notice from the secretary of state, the committee or party treasurer may request from the appropriate officer a postponement of a hearing on the complaint and, if such request is timely submitted, has 15 business days from the date of the notice to file an addendum to the relevant report that cures any such deficiencies.

Where the committee or party treasurer files an addendum that cures all deficiencies alleged in the complaint before the expiration of the 15-day period specified in the bill, the bill prohibits the appropriate officer from assessing a penalty against the committee or treasurer that otherwise would have been assessed for the for the deficiencies for the period from the first date of the alleged violation through the expiration of the cure period. Upon filing an addendum to the relevant report by the committee or party treasurer that cures all such deficiencies, the appropriate officer is required to set a hearing to determine whether all issues raised by the complaint have been resolved. If the committee or party treasurer fails to cure any such discrepancy, any penalty imposed for such deficiency continues to accrue until further resolution of the matter.

The bill’s requirements only apply in the case of a good faith effort by a committee or party treasurer, as applicable, to make timely disclosure or where the disclosure report is in substantial compliance with governing legal requirements.

The bill was introduced in House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on February 23 upon adjournment.

HB 17-1134: Creating Civil Remedy Against Elected Officials in Sanctuary Jurisdictions

On January 30, 2017, Rep. Dave Williams and Sen. Vicki Marble introduced HB 17-1134, “Concerning Holding Colorado Government Accountable for Creating Sanctuary Jurisdiction Policies.”

The bill is known as the ‘Colorado Politician Accountability Act’.

The bill includes a legislative declaration that states that addressing sanctuary jurisdictions is a matter of statewide concern and that makes findings about how sanctuary policies are contrary to federal law and state interests.

The bill creates a civil remedy against the state or a political subdivision of the state (jurisdiction) and against its elected officials for creating sanctuary policies. The bill also creates a crime of rendering assistance to an illegal alien that can be brought against an elected official for creating a sanctuary jurisdiction.

An elected official is responsible for the creation of a sanctuary jurisdiction if the elected official votes in favor of imposing or creating a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, fails to take steps to try to change a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, or is a county sheriff who imposes or enforces a policy that allows the jurisdiction to operate as a sanctuary jurisdiction in a county in which the elected officials have not voted to impose or create a sanctuary jurisdiction.

The bill allows any person who claims that he or she is a victim of any crime committed by an illegal alien who established residency in a sanctuary jurisdiction to file a civil action for compensatory damages against a jurisdiction and against the elected officials of the jurisdiction who were responsible for creating the policy to operate as a sanctuary jurisdiction. Notwithstanding the protections of the ‘Colorado Governmental Immunity Act’, the jurisdiction and its officials who are responsible for creating a sanctuary jurisdiction are civilly liable for damages if the person who engaged in the criminal activity:

  • Is determined to be an illegal alien;
  • Had established residency in the sanctuary jurisdiction; and
  • Is convicted of the crime that is a proximate cause of the injury to a person or property.

The maximum amount of compensatory damages for injury to persons is $700,000 per person or $1,980,000 for injury to 2 or more persons; except that no person may recover in excess of $700,000. The maximum amount of compensatory damages for injury to property is set at $350,000 per person or $990,000 for injury to multiple persons; except that no person may recover in excess of $350,000.

The bill defines a ‘sanctuary jurisdiction’ as a jurisdiction that adopts a law, ordinance, or policy on or after the effective date of this bill that prohibits or in any way restricts an official or employee of the jurisdiction from:

  • Cooperating and complying with federal immigration officials or enforcing federal immigration law;
  • Sending to or receiving from or requesting from federal immigration officials information regarding the citizenship or immigration status, lawful or unlawful, of an individual;
  • Maintaining or exchanging information about an individual’s immigration status, lawful or unlawful, with other federal agencies, state agencies, or municipalities;
  • Inquiring about an individual’s name, date and place of birth, and immigration status while enforcing or conducting an official investigation into a violation of any law of this state;
  • Continuing to detain an individual, regardless of the individual’s ability to be released on bail, who has been identified as an illegal alien while in custody for violating any state law; or
  • Verifying the lawful presence and eligibility of a person applying for a state or local public benefit as required by state and federal law.

The bill sets forth the requirements for determining when an illegal alien has established residency in a sanctuary jurisdiction. An ‘illegal alien’ is defined as a person who is not lawfully present within the United States, as determined by federal immigration law.

The governing body of any jurisdiction is prohibited from adopting a law, ordinance, rule, policy, or plan or taking any action that limits or prohibits an elected official, employee, or law enforcement officer from communicating or cooperating with an appropriate public official, employee, or law enforcement officer of the federal government concerning the immigration status of an individual residing in the state. The governing body of a jurisdiction is required to provide written notice to each elected official, employee, and law enforcement officer of the jurisdiction of his or her duty to communicate and cooperate with the federal government concerning enforcement of any federal or state immigration law. The governing body of any jurisdiction in this state is required to annually submit a written report to the department of public safety (department) that the jurisdiction is in compliance with the cooperation and communication requirements. If the department does not receive those written reports, the department is required to provide the name of that jurisdiction to the state controller.

A law enforcement officer of a jurisdiction who has reasonable cause to believe that an individual under arrest is not lawfully present in the United States shall immediately report the individual to the appropriate U.S. immigration and customs enforcement office (ICE) within the department of homeland security. The governing body of any jurisdiction is required to report annually to the department on the number of individuals who were reported to ICE by law enforcement officers from that jurisdiction. The department is directed to compile and submit annual reports on compliance to the general assembly and to the state controller. The state controller is required to withhold the payment of any state funds to any jurisdiction that is found by the department to have failed to comply with these reporting requirements. The state controller shall withhold funds until the department notifies the state controller that the jurisdiction is in compliance.

The bill creates the crime of rendering assistance to an illegal alien through a sanctuary jurisdiction, which is a class 4 felony. A person who is an elected official of a jurisdiction commits rendering assistance to an illegal alien through a sanctuary jurisdiction if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of illegal aliens within the jurisdiction:

  • He or she was responsible for creating a sanctuary jurisdiction in the jurisdiction to which the official is elected; and
  • When, as a result of the protection afforded by a sanctuary jurisdiction, a third person engages in criminal activity and the third person:
  • Is an illegal alien as legally defined by federal immigration law;
  • Had established residency in the sanctuary jurisdiction that was created by the official; and
  • Has been convicted of a crime that caused injury to a person or to property.

A person who has knowledge of a crime committed by an illegal alien as a result of the creation of a sanctuary jurisdiction may file an affidavit with the attorney general or with a district attorney outlining the crime and requesting that charges be brought or that a grand jury be impaneled. The attorney general or district attorney shall investigate and respond in writing with his or her decision to the person filing the affidavit within 49 days. If the attorney general or district attorney declines to bring charges or impanel a grand jury, the person may file a second affidavit directly with the applicable court.

The bill includes a severability clause and a provision that states that the bill is not subject to judicial review.

The bill takes effect upon passage and applies to acts or omissions occurring on or after said date.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs and Judiciary committees. It is scheduled to be heard in the State, Veterans, and Military Affairs committee on February 22, 2017, at 1:30 p.m.

Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel in Germany, to Speak at Brown Palace

Herrmann_pic_02The Colorado Bar Association International Law Section and the Colorado Chapter of the German American Chamber of Commerce are hosting a luncheon with Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel of the Supreme Court of Germany. Dr. Herrmann will discuss the refugee crisis, Brexit, and political freedom of speech.

Dr. Herrmann was appointed presiding justice of the Federal Court of Justice (Bundesgerichtshof) and chairman of the 3rd Civil Panel on August 4, 2015. The Bundesgerichtshof is the German Federal Supreme Court for civil, family, and criminal cases. As chairman of the 3rd Civil Panel, his jurisdiction includes state liability, liability of notaries, service contracts, mandate law, law of private foundations and several other subjects. Dr. Herrmann was first appointed to the Justice of the Federal Court of Justice and to the 3rd Civil Panel in December 2003. He has additionally served as judicial tasks representative for the court on IT matters since March 2007.

Dr. Herrmann began his law career as an assistant at the Institute of Civil Procedure and Insolvency Law of the University of Bonn, writing his doctoral thesis on “The Principle Structure of a Pending Civil Law Suit” (Die Grundstruktur der Rechtshängigkeit). He was appointed as a judge at the Regional and the Local Court of Bonn in February1990. Over the following seven years, Dr. Herrmann served first as presidential and later as presiding judge of the Regional Court of Frankfurt (Oder) in the state of Brandenburg. Here he was also responsible for the personal matters of the judges of the district court.

In August 1998, Dr. Herrmann became judge of the Higher Regional Court of Brandenburg, where he continued to take responsibility for the personal matters of regional judges. In December 1999, he became chief of staff of the Brandenburg Ministry of Justice and in December 2002, he was appointed vice president of the agency for legal exams of the state of Brandenburg.

He originally hails from the city of Bonn in North Rhine Westphalia. He is married and has two children, aged 24 and 30 years old.

The program will take place on Friday, August 5, 2016, from noon to 1:30 at the Brown Palace. To register, call (303) 860-1115, ext. 727, or email lunches@cobar.org.

Colorado Supreme Court: Ballot Initiative Encompasses Multiple Subjects Because it Injects Politics into Supreme Court Nominating Commission

The Colorado Supreme Court issued its opinion in In re Title, Ballot Title, and Submission Clause for 2015-2016 #132 and #133 on Monday, July 5, 2016.

Initiatives #132 and #133 propose to change the way congressional and senatorial districts are drawn in Colorado by restructuring and replacing the state’s Colorado Reapportionment Commission with a newly created Independent Colorado Legislative Redistricting Commission. The initiatives would make several changes to the way legislative districts are drawn, and would require the Supreme Court Nominating Commission to “establish and announce a process for appointment” for the four Commission members who would be required to be from a minor or independent political party.

The Colorado Supreme Court determined that the initiatives violated the single subject requirement by fundamentally altering the role of the Supreme Court Nominating Commission and ultimately injecting politics into the neutral body of the judicial branch. The court also agreed with petitioners that the initiatives violated the single subject requirement by removing the power to redistrict Colorado’s congressional districts from the General Assembly and transferring it to the newly created Redistricting Commission. The court held that the initiative created the possibility of “log rolling” because it would potentially draw “yes” votes from people who are unhappy with the current legislative districting structure but might oppose removing the power to draw those districts from the General Assembly.

Justice Boatright dissented; he would have concluded that because every subject relates to legislative redistricting, the initiative satisfied the single subject rule.