April 19, 2018

Bills Signed Requiring Commercial Drivers to Receive Training in Human Trafficking Prevention, Modifying Water Court Process for Substitute Water Rights, and More

On Thursday, April 12, 2018, Governor Hickenlooper signed 23 bills into law. To date, he has signed 149 bills and sent one to the Secretary of State without a signature. Some of the bills signed Thursday include a bill allowing a water court process for mitigation measures, a bill requiring commercial drivers to receive training on prevention of human trafficking, a bill authorizing insurers’ agents to access the electronic motor vehicle title database, and more. The bills signed Thursday are summarized here.

  • SB 18-011 – “Concerning Treatment of Students who are Excused by their Parents from Participating in State Assessments,” by Sens. Chris Holbert & Andy Kerr and Reps. Tracy Kraft-Tharp & Paul Lundeen. The bill clarifies procedures for parents who excuse their children from taking state assessments and students whose parents excuse them from testing shall still be allowed to receive rewards designed for students who complete the assessments.
  • SB 18-079 – “Concerning Classifying Sake as a Vinous Liquor for the Purposes of the ‘Colorado Liquor Code,'” by Sen. Lucia Guzman and Rep. Dan Pabon. The bill classifies sake as a vinous liquor (wine) for the purposes of the “Colorado Liquor Code.”
  • SB 18-087 – “Concerning In-state Tuition at Institutions of Higher Education for Certain Foreign Nationals Legally Settled in Colorado,” by Sen. Stephen Fenberg and Reps. Dafna Michaelson Jenet & Faith Winter. The bill contains a legislative declaration about the circumstances facing special immigrants and refugees and the benefit of access to education.
  • SB 18-106 – “Concerning Obsolete Statutory Provisions Related to a Local Government’s Pledging of Sales or Use Tax Revenues to Pay for Revenue Bonds Issued for the Purpose of Financing Capital Improvements,” by Sen. Jack Tate and Rep. Don Thurlow. Current law specifies that a county, city, or incorporated town may include the creation of a sales and use tax capital improvement fund (special fund) when the county, city, or incorporated town seeks voter approval to levy a sales or use tax. The creation of the special fund does not have a purpose for a county, city, or incorporated town post-TABOR because the question of using sales or use tax revenues for financing capital improvements is asked when the county, city, or incorporated town seeks voter approval for the bond issuance. Thus, the language regarding the creation of the fund is unnecessary.
  • SB 18-110 – “Concerning the Repeal of the Requirement that Each State Agency Annually Report the Amount of Federal Money it Received in the Prior Fiscal Year,” by Sen. Jack Tate and Rep. Jeni James Arndt. During the 2017 legislative session, the statutory revision committee put forth House Bill 17-1058, which, in part, repealed a requirement that the state controller submit to the general assembly a report of all federal money received by state agencies during the prior fiscal year. State agencies are still required to submit an annual report to the state controller of all federal moneys received by the state agency in the prior fiscal year for the state controller’s use in preparing the report for the general assembly.The bill repeals the state agency reporting requirement as the state controller is no longer required to prepare a report for the general assembly.
  • SB 18-127 – “Concerning the Repeal of the Department of Revenue’s Requirement to Publish an Historical Explanation of Income Tax Rate Modifications Enacted in the State on Every Income Tax Return Form,” by Sen. Beth Martinez Humenik and Rep. Dan Thurlow. The bill repeals the requirement that the Executive Director of the Department of Revenue publish an historical explanation of income tax rate modifications enacted in the state on every income tax return form.
  • SB 18-129 – “Concerning the Nonsubstantive Reorganization of the Law Exempting from State Sales Tax Certain Drugs and Medical and Therapeutic Devices,” by Sen. Dominick Moreno and Rep. Jeni James Arndt. The bill makes several modifications to the laws exempting certain drugs and medical devices from sales tax.
  • SB 18-136 – “Concerning Fees for Advising Clients About the Selection of an Individual Health Benefit Plan,” by Sen. Tim Neville and Reps. Tracy Kraft-Tharp & Lang Sias. The bill allows an insurance producer or broker advising a client on individual health benefit plans to charge the client a fee if the producer or broker does not receive a commission related to the individual health benefit plan selected by the client and if the producer or broker discloses in writing the fee to the client.
  • SB 18-161 – “Concerning Repeal of the Behavioral Health Transformation Council,” by Sen. Jim Smallwood and Reps. Tracy Kraft-Tharp & Lois Landgraf. The bill repeals the behavioral health transformation council.
  • SB 18-162 – “Concerning Substitute Child Care Providers,” by Sen. Beth Martinez Humenik and Reps. Janet Buckner & James Wilson. The bill creates a license within the Department of Human Services for a substitute placement agency that places or that facilitates or arranges placement of substitute child care providers in licensed child care facilities providing less than 24-hour care.
  • SB 18-170 – “Concerning a Water Court Process by Which an Owner of a Storage Water Right Allowing Water to be Stored in New Reservoir Capacity may Release Water into an Identified Stream Reach in a Manner that Protects the Water Releases while Complying with Mitigation Measures Identified in a Fish and Wildlife Mitigation Plan Approved by the Colorado Water Conservation Board,” by Sen. Jerry Sonnenberg and Reps. Chris Hansen & Hugh McKean. The bill establishes a water court process by which an owner of a water storage right allowing water to be stored in a newly constructed reservoir or an enlarged existing reservoir may comply with the mitigation measures identified in a mitigation plan by contracting with the board.
  • SB 18-172 – “Concerning Testing of Horse Racing Licensees for the Presence of Prohibited Substances,” by Sen. Bob Gardner and Rep. Pete Lee. The bill adds to the responsibilities of the Colorado racing commission the protection of all participants, human and animal, involved in horse racing.
  • SB 18-176 – “Concerning Changes to the Requirements for Meeting Dates for the Board of the Southwestern Water Conservation District,” by Sen. Don Coram and Reps. Barbara McLachlin & Marc Catlin. The bill requires the Board of the Southwestern Water Conservation District to meet once every three months and makes amendments to the terms of the board members and board president.
  • SB 18-182 – “Concerning the Authority to Allocate a Portion of the Source Market Fee to Statutorily Authorized Purse Funds,” by Sens. Don Coram & Lucia Guzman and Reps. Marc Catlin & Jeni James Arndt. Current law requires persons outside of Colorado who accept wagers from residents of Colorado on simulcast horse racing events to be licensed in Colorado and to pay a source market fee into the racing cash fund. The bill authorizes the Director of the Division of Racing Events to allocate a portion of the source market fee to be paid to any horse purse trust fund established pursuant to existing law, if necessary, to maintain a sustainable and competitive purse structure in Colorado.
  • SB 18-183 – “Concerning Authorizing Agents of Insurers to Access the Electronic System that Insurers Access for Owner and Lienholder Information of a Motor Vehicle,” by Sen. Jack Tate and Reps. Jeni James Arndt & Larry Liston. Current law authorizes the creation and maintenance of an electronic system that vehicle towers, insurers, and salvage pools may use to access motor vehicle title records if the vehicle is insured or possessed by those entities. The bill allows an agent of an insurer to use the system in the same circumstances.
  • SB 18-184 – “Concerning a New Permit for the Short-term Extraction of Construction Materials,” by Sen. Don Coram and Reps. Hugh McKean & Daneya Esgar. The bill creates a new class of limited impact construction materials permits for one-time activities that produce construction materials as a by-product and are not intended to be ongoing mining operations and authorizes an application fee of $400 for the permit and an annual fee of $200.
  • HB 18-1017 – “Concerning the Adoption of an Interstate Compact to Allow a Person Authorized to Practice Psychology in a Compact State in Which the Person is not Licensed, and, in Connection Therewith, Making an Appropriation,” by Rep. Dafna Michelson Jenet and Sens. Bon Gardner & Stephen Fenberg. The bill enacts the ‘Psychology Interjurisdictional Compact Act’ allowing psychologists licensed in any compact state to provide telepsychology services to clients in any other compact state, or temporary in-person client services in any compact state not exceeding 30 days in a calendar year.
  • HB 18-1018 – “Concerning a Requirement that Education to Prevent Human Trafficking be Included in the Training to Obtain a Commercial Driver’s License,” by Reps. Terri Carver & Dominique Jackson and Sens. Rachel Zenzinger & John Cooke. The bill requires that the training to obtain a commercial driver’s license to drive a combination vehicle contain education to prevent human trafficking if the training is conducted in a driving school. The department must also publish information about human trafficking for commercial driver’s license holders and trainees.
  • HB 18-1049 – “Concerning the Department of Human Services’ Authority to Continue to Lease Portions of the Grand Junction Regional Center Campus to Third-party Behavioral Health Providers,” by Rep. Dan Thurlow and Sen. Ray Scott. The Department of Human Services currently leases portions of the Grand Junction regional center campus to third-party behavioral health providers. The bill authorizes the Department to continue such leases until June 30, 2020, and each party to such lease may terminate the lease early provided that the terminating party provide the other party with 90 days notice before vacating the property or requiring the property to be vacated.
  • HB 18-1056 – “Concerning the Statewide Standard Health History Form that Members of the Fire and Police Pension Association Complete when Commencing Employment,” by Reps. Kevin Van Winkle & Dave Williams and Sen. John Cooke. Every member of the fire and police pension association (FPPA), at the commencement of employment, is required to complete a health history on a statewide standard health history form. The bill clarifies several aspects of the form.
  • HB 18-1078 – “Concerning Court Programs for Defendants who have Served in the Armed Forces,” by Reps. Lois Landgraf & Tony Exum and Sen. Bob Gardner. Under current law, the chief judge of a judicial district may establish an appropriate program for the treatment of veterans and members of the military. The bill states that, in establishing any such program, the chief judge, in collaboration with the probation department, the district attorney, and the state public defender, shall establish program guidelines and eligibility criteria. The bill requires a court, in determining whether to issue an order to seal criminal records of a petitioner who has successfully completed a veterans treatment program, to consider such factor favorably in making the determination.
  • HB 18-1154 – “Concerning Consumer Protections Relating to a Solicitation to Provide a Copy of a Public Record for a Fee,” by Reps. Edie Hooten & Kevin Van Winkle and Sen. Cheri Jahn. The bill requires a person who solicits a fee for providing a copy of a deed or deed of trust to give a copy of the document that will be used for the solicitation to each county clerk and recorder where the solicitation is to be distributed; not charge a fee of more than 4 times the amount charged by the county clerk and recorder; and include specified disclosures.
  • HB 18-1239 – “Concerning Continuation under the Sunset Law of the Environmental Management System Permit Program, and, in Connection Therewith, Implementing the Recommendations of the Sunset Report by the Department of Regulatory Agencies by Allowing the Program to Repeal,” by Rep. Lois Landgraf and Sen. Ray Scott. The bill implements the recommendations of the sunset review and report on the environmental management system permit program by allowing the program to repeal.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Bills Signed Regarding Ground Water Commission Approval of Aquifer Storage and Recovery Plans, Repealing Procedures to Fill Municipal Vacancies, and More

On Monday, April 9, 2018, Governor Hickenlooper signed 12 bills into law. To date, he has signed 126 bills into law and sent one to the Secretary of State without a signature. The bills signed Monday include a bill to increase transparency in higher education statutes concerning military service, a bill repealing procedures to fill vacancies in candidate nominations for municipal elections, a bill allowing the Colorado Oil and Gas Commission to roll-over its year-end balances in order to facilitate financing, and more. The bills signed Monday are summarized here.

  • SB 18-107 – “Concerning the Repeal of Procedures to Fill Vacancies in Candidate Nominations for Elections Conducted under the ‘Colorado Municipal Code of 1965,'” by Sen. Rachel Zenzinger and Rep. Dan Thurlow. The bill repeals the process by which a vacancy in nomination may be filled for an election conducted under the ‘Colorado Municipal Code of 1965’ and makes conforming amendments.
  • HB 18-1098 – “Concerning the Expanded Ability of the Colorado Oil and Gas Conservation Commission to Finance the Remediation of Oil and Gas Locations,” by Reps. Lori Saine & Matt Gray and Sen. Vicki Marble. Under current practice, expenditures by the Colorado oil and gas conservation commission to address the mitigation of adverse environmental impacts of oil and gas operations are paid from the environmental response account of the oil and gas conservation and environmental response fund, and the year-end balance of the account transfers into the fund. The bill specifies that the year-end balance of the account remains in the account.
  • HB 18-1112 – “Concerning Covered Health Care Services Provided by a Pharmacist,” by Reps. Jon Becker & Daneya Esgar and Sen. Larry Crowder. The bill requires a health benefit plan to provide coverage for health care services provided by a pharmacist if the services are provided within a health professional shortage area and the health benefit plan provides coverage for the same services provided by a licensed physician or advanced practice nurse.
  • HB 18-1134 – “Concerning Eligibility of Kindergarten Students Funded through Early Childhood At-risk Enhancement Positions,” by Reps. Brittany Pettersen & James Wilson and Sens. Michael Merrifield & Beth Martinez Humenik. If a district chooses to use early childhood at-risk enhancement (ECARE) positions to enroll children in the district’s full-day kindergarten program, children using the ECARE positions must satisfy at least one of the eligibility requirements of the Colorado preschool program.
  • HB 18-1145 – “Concerning the Repeal of Laws Regulating Ballot Issue Petition Circulators that have been Permanently Enjoined from Enforcement,” by Rep. Edie Hooten and Sen. Dominick Moreno. The bill repeals laws ordered permanently enjoined from enforcement in Independence Inst. v. Gessler , 936 F. Supp. 2d 1256 (D. Colo. 2013).
  • HB 18-1148 – “Concerning the Prohibition Against a Carrier Requiring Step Therapy for Covered Persons with Stage Four Advanced Metastatic Cancer,” by Rep. Dafna Michaelson Jenet and Sen. Larry Crowder. The bill prohibits a carrier that issues a health benefit plan that covers treatment for stage four advanced metastatic cancer from requiring a cancer patient to undergo step therapy prior to receiving a drug approved by the United States food and drug administration if use of the approved drug is consistent with best practices for treatment of the cancer and as long as the drug is on the carrier’s prescription drug formulary.
  • HB 18-1172 – “Concerning Money Allocated from an Appropriation from the Marijuana Tax Cash Fund to a Designated Managed Service Organization to Implement its Community Action Plan,” by Rep. Dave Young and Sen. Kent Lambert. The bill amends the ‘Increasing Access to Effective Substance Use Disorder Services Act’ to clarify that a designated managed service organization (designated MSO) may use money allocated to it from the marijuana tax cash fund for expenditures for substance use disorder services and for any start-up costs or other expenses necessary to increase capacity to provide such services and may allow allocations to roll forward.
  • HB 18-1199 – “Concerning a Process for the Ground Water Commission to Use for Approving Aquifer Storage-and-Recovery Plans, and, in Connection Therewith, Requiring that the Ground Water Commission Promulgate Rules Governing its Implementation of the Process,” by Reps. Marc Catlin & Barbara McLaughlin and Sen. Don Coram. The bill authorizes a person to apply to the ground water commission (commission) for approval of an aquifer storage-and-recovery plan and requires the commission to promulgate rules governing the application process and the requirements that an aquifer storage-and-recovery plan must meet to be approved.
  • HB 18-1228 – “Concerning Increasing Transparency in Higher Education Statutes Relating to Military Service,” by Reps. Justin Everett & Dafna Michaelson Jenet and Sen. Leroy Garcia. The bill creates a new article 7.4 in title 23, Colorado Revised Statutes, with the article heading ‘Military Members, Veterans, and Dependents’, in order to locate physically within the same article, whenever practicable, higher education provisions relating to the military.
  • HB 18-1238 – “Concerning the Continuation of the Wildland-Urban Interface Training Advisory Board, and, in Connection Therewith, Implementing the Recommendations of the 2017 Sunset Report by the Department of Regulatory Agencies,” by Reps. Dominique Jackson & Marc Catlin and Sen. Vicki Marble. The bill implements the recommendation of the Department of Regulatory Agencies to sunset the wildland-urban interface training advisory board.
  • HB 18-1246 – “Concerning Updates to the “Colorado Nursery Act”, and, in Connection Therewith, Modernizing the Act and Protecting Agriculture from Pests, Diseases, and Noxious Weeds,” by Rep. Jessie Danielson and Sen. Don Coram. The bill updates the ‘Colorado Nursery Act’, last amended in 2009, to protect nursery stock.
  • HB 18-1293 – “Concerning Payment of Expenses of the Legislative Department,” by Reps. Crisanta Duran & Patrick Neville and Sens. Kevin Grantham & Lucia Guzman. The bill makes appropriations for matters related to the legislative department for the 2018-19 state fiscal year.

For a list of all of Governor Hickenlooper’s 2018 legislative decisions, click here.

Bills Signed Regarding Fiduciary Duties of Title Insurance Entities, Public Official Oaths and Affirmations, and More

On Thursday, March 29, 2018, the governor signed 17 bills into law. He also signed 16 bills into law on Monday, April 2, 2018. To date, Governor Hickenlooper has signed 114 bills this legislative session and sent one to the Secretary of State without a signature. The bills signed Thursday and Monday include a bill concerning the fiduciary duties of title insurance entities with regard to funds held for closing, a bill exempting physicians who treat patients with rare disorders from non-compete agreements, several bills updating outdated statutory language, bills regarding financing broadband for rural areas, a bill requiring reporting when title to a motor vehicle has been transferred, and more. The bills signed Thursday and Monday are summarized here.

  • HB 18-1012 – “Concerning Vision Care Plans for Eye Care Services,” by Reps. Jon Becker & Susan Lontine and Sens. Kevin Lundberg & Irene Aguilar. The bill prohibits a carrier or entity that offers a vision care plan from requiring an eye care provider with whom the carrier or entity contracts to provide services at a set fee, charge a person for noncovered services, or participate in a carrier’s other vision plan networks.
  • HB 18-1091 – “Concerning Dementia Diseases, and, in Connection Therewith, Updating Statutory References to Dementia Diseases and Related Disabilities,” by Reps. Susan Beckman & Joann Ginal and Sens. Jim Smallwood & Nancy Todd. The bill updates statutory references to Alzheimer’s and other dementia diseases and reflects that dementia diseases have related disabilities impacting memory and other cognitive abilities.
  • HB 18-1099 – “Concerning Criteria that the Broadband Deployment Board is Required to Develop with Regard to an Incumbent Telecommunications Provider’s Exercise of a Right to Implement a Broadband Deployment Project in an Unserved Area of the State Upon a Nonincumbent Provider’s Application to the Broadband Deployment Board to Implement a Proposed Broadband Deployment Project in the Unserved Area,” by Reps. Marc Catlin & Barbara McLaughlin and Sen. Don Coram. The bill requires that the Broadband Deployment Board’s criteria include requirements that an incumbent telecommunications provider exercising its right to implement a broadband deployment project for the unserved area agree to provide demonstrated downstream and upstream speeds equal to or faster than the speeds indicated in the applicant’s proposed project and at a cost per household that is equal to or less than the cost per household indicated in the applicant’s proposed project.
  • HB 18-1103 – “Concerning the Ability of a Local Government to Require a Driver to Meet Safety Standards for the Use of an Off-highway Vehicle,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill clarifies that a local government does not violate state rules if it imposes certain requirements on a driver of an off-highway vehicle.
  • HB 18-1130 – “Concerning Increasing the Availability of Qualified Personnel who are Licensed in Another State to Teach in Public Schools,” by Reps. Dave Williams & Jeni James Arndt and Sen. Bob Gardner. The bill changes requirements for special education teacher requirements from 3 years of continuous experience to 3 years of experience within the previous 7 years.
  • HB 18-1137 – “Concerning the Scheduled Repeal of Reports to the General Assembly, and, in Connection Therewith, Continuing the Requirements for Reports by the Department of Transportation and the Department of Public Safety,” by Rep. Hugh McKean and Sen. Rachel Zenzinger. The bill continues reporting requirements of the Departments of Transportation and Public Safety.
  • HB 18-1138 – “Concerning Standardizing Public Official Oaths of Office, and, in Connection Therewith, Providing a Uniform Oath Text and Establishing Requirements for Taking, Subscribing, Administering, and Filing Public Oaths of Office,” by Rep. Jeni James Arndt and Sen. Rachel Zenzinger. The bill establishes a single uniform text for swearing or affirming an oath of office and the requirements regarding how and when an oath or affirmation of office must be taken, subscribed, administered, and filed.
  • HB 18-1139 – “Concerning the Removal of Outdated Statutory References to Repealed Reporting Requirements that were Previously Imposed on the Parks and Wildlife Commission with Regard to its Rule-making Authority to Set Fees,” by Rep. Edie Hooten and Sen. Rachel Zenzinger. The bill removes obsolete references to a statutory subsection that was repealed on September 1, 2017.
  • HB 18-1158 – “Concerning a Supplemental Appropriation to the Department of Corrections,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Corrections.
  • HB 18-1171 – “Concerning Adjustments in the Amount of Total Program Funding for Public Cchools for the 2017-18 Budget Year, and, in Connection Therewith, Making and Reducing an Appropriation,” by Rep. Millie Hamner and Sen. Kevin Lundberg. The bill adjusts the minimum amount of total program funding specified in statute to reflect this intent for the actual funded pupil count and the actual at-risk pupil count.
  • HB 18-1196 – “Concerning Authorization to Verify the Disability of an Applicant to the Aid to the Needy Disabled Program,” by Rep. Tony Exum and Sens. Nancy Todd & Beth Martinez Humenik. Under current law, in order to receive assistance under the aid to the needy disabled program, an applicant must be examined by a physician, physician assistant, advanced practice nurse, or registered nurse. The bill adds to the list of persons authorized to perform an examination a licensed psychologist, or any other licensed or certified health care personnel the department of human services deems appropriate.
  • HB 18-1233 – “Concerning a Consumer Reporting Agency’s Placement of a Security Freeze on the Consumer Report of a Consumer who is Under the Charge of a Representative at the Request of the Consumer’s Representative,” by Reps. Crisanta Duran & Polly Lawrence and Sens. Stephen Fenberg & Bob Gardner. The bill authorizes a parent or legal guardian (representative) to request that a consumer reporting agency place a security freeze on the consumer report of either a minor less than 16 years of age or another individual who is a ward of the representative (protected consumer).
  • SB 18-002 – “Concerning the Financing of Broadband Deployment,” by Sens. Don Coram & Jerry Sonnenberg and Reps. KC Becker & Crisanta Duran. The bill amends the definition of ‘broadband network’ to increase the speed of downstream broadband internet service from at least 4 megabits per second to at least 10 megabits per second and the definition of ‘unserved area’ to refer to an area that is unincorporated, or within a city with a population of fewer than 7,500 inhabitants, and that is not receiving federal support to construct a broadband network to serve a majority of the households in each census block in the area, and requires the PUC to allocate money.
  • SB 18-028 – “Concerning the Repeal of Certain Requirements for Where a License Plate is Mounted on a Motor Vehicle,” by Sen. Ray Scott and Rep. Jeff Bridges. Current law requires each license plate to be at the approximate center of a motor vehicle and at least 12 inches from the ground. The bill repeals this requirement for the front license plate and replaces it with a requirement that the front license plate be mounted horizontally on the front in the location designated by the manufacturer.
  • SB 18-073 – “Concerning Reporting to the Department of Revenue when Ownership of a Motor Vehicle has been Transferred,” by Sen. Jim Smallwood and Reps. Kim Ransom & Leslie Herod. The bill creates a voluntary program administered by the Department of Revenue that authorizes the owner of a motor vehicle to report a transfer of ownership of the motor vehicle. If the previous owner reports the transfer to the Department, the previous owner is not subject to liability for the misuse of the vehicle.
  • SB 18-074 – “Concerning Adding Individuals with Prader-Willi Syndrome to the List of Persons with Intellectual and Developmental Disabilities,” by Sen. Nancy Todd and Rep. Chris Hansen. The bill adds Prader-Willi syndrome to the list of persons who have mandatory eligibility for services and supports and also to the definition of an ‘intellectual and developmental disability’ for the purpose of receiving services and supports.
  • SB 18-082 – “Concerning a Physician’s Right to Provide Continuing Care to Patients with Rare Disorders Despite a Covenant Not to Compete,” by Sen. Rachel Zenzinger and Sen. Chris Kennedy. The bill exempts physicians who provide care to patients with rare diseases from non-compete agreements.
  • SB 18-090 – “Concerning ‘Rights of Married Women,'” by Sen. Rachel Zenzinger and Rep. Edie Hooten. The bill modernizes the language in statutory sections concerning the “rights of married women” to be inclusive of married men and women.
  • SB 18-095 – “Concerning the Removal of Statutory References to the Marital Status of Parents of a Child,” by Sens. Rachel Zenzinger & Beth Martinez Humenik and Reps. Edie Hooten & Hugh McKean. The bill removes or modernizes outdated statutory references to a ‘legitimate’ or ‘illegitimate’ child and a ‘child born out of wedlock’. Colorado only recognizes parentage of a child and acknowledges that the parent and child relationship extends equally to every child and every parent, regardless of the marital status of the parents.
  • SB 18-098 – “Concerning Amending a Statutory Provision Relating to Interest on Damages that was Ruled Unconstitutional by the Colorado Supreme Court,” by Sens. Jack Tate & Rachel Zenzinger and Reps. Edie Hooten & Dan Thurlow. The bill amends C.R.S. § 13-21-101 (1), concerning interest on damages, to reflect a 1996 decision made by the Colorado Supreme Court that ruled certain language in that subsection violated the equal protection clause of the constitution.
  • SB 18-099 – “Concerning the Alignment of Early Childhood Quality Improvement Programs with the Colorado Shines Quality Rating and Improvement System,” by Sens. Michael Merrifield & Kevin Priola and Reps. Brittany Pettersen & James Wilson. The bill amends the application and eligibility requirements for the school-readiness quality improvement program and the infant and toddler quality and availability grant program to align with the Colorado shines quality rating and improvement system to streamline the administration of the programs.
  • SB 18-102 – “Concerning the Requirement for an Odometer Reading when a Motor Vehicle’s Identification Number is Physically Verified,” by Sens. Jack Tate & Rachel Zenzinger and Reps. Edie Hooten & Dan Thurlow. The bill repeals the requirement that the odometer be read when a motor vehicle’s identification number is physically verified.
  • SB 18-104 – “Concerning a Requirement that the Broadband Deployment Board File a Petition with the Federal Communications Commission to Seek a Waiver from the Commission’s Rules Prohibiting a State Entity from Applying for Certain Federal Money Earmarked for Financing Broadband Deployment in Remote Areas of the Nation,” by Sen. Kerry Donovan and Reps. Yeulin Willett & Barbara McLaughlin. The bill requires the broadband deployment board, on or before January 1, 2019, to petition the federal communications commission (FCC) for a waiver from the FCC’s rules prohibiting a state entity from applying for federal money earmarked for broadband deployment in remote areas of the nation through the remote areas fund created as part of the connect America fund established by the FCC.
  • SB 18-111 – “Concerning the Removal of an Obsolete Date in the Law that Designates State Legal Holidays,” by Sen. Jack Tate and Rep. Jeni James Arndt. Current law specifies that if executive branch employees who are in the state personnel system are required to work on a state legal holiday, the employees shall receive an alternate day off or be paid in accordance with the state personnel system or state fiscal rules in effect on April 30, 1979. The state fiscal rules in effect in 1979 have been amended numerous times since that time and are no longer applicable or relevant. The bill removes the reference to April 30, 1979.
  • SB 18-121 – “Concerning Certain Expenses Allowed to a State Employee when the Employee is Required to Change his or her Place of Residence in Connection with a Change in Job Duties,” by Sen. Jack Tate and Rep. Jeni James Arndt. Current law allows an employee in the state personnel system his or her moving and relocation expenses if an appointing authority requires the employee to change his or her place of residence due to a change in job duties. The bill specifies that moving expenses, including the reasonable expenses of moving household goods and personal effects and the reasonable costs of traveling to a new residence, are reimbursable in accordance with rules promulgated by the state controller and in compliance with the regulations of the federal internal revenue service.
  • SB 18-125 – “Concerning Fiduciary Responsibilities of Title Insurance Entities to Protect Funds held in Conjunction with Real Estate Closing Settlement Services,” by Sens. Bob Gardner & Daniel Kagan and Rep. Pete Lee. The bill requires title insurance entities and affiliates or subsidiaries to hold funds belonging to others in a fiduciary capacity. ‘Fiduciary funds’ means all funds received in conjunction with real estate closing and settlement services.
  • SB 18-131 – “Concerning Modifications to the “State Employees Group Benefits Act,” by Sen. Jack Tate and Rep. Edie Hooten. The bill modifies several provisions of the State Employees Group Benefits Act to bring it into compliance with current state and federal law and to eliminate obsolete provisions.
  • SB 18-134 – “Concerning the Exemption of Nonprofit Water Companies from Regulation by the Public Utilities Commission,” by Sen. John Cooke and Rep. Jeni James Arndt. Under current law, the public utilities commission is directed to grant simplified regulatory treatment to water companies that serve fewer than 1,500 customers. The bill expands on this concept by deregulating water companies that are registered as nonprofits, so long as their rates, charges, and terms and conditions of service are just and reasonable.
  • SB 18-135 – “Concerning Updates to the Colorado Code of Military Justice,” by Sen. Bob Gardner and Reps. Terri Carver & Pete Lee. The bill updates several parts of the Colorado Code of Military Justice.
  • SB 18-138 – “Concerning Authorization for Retail Sellers of Alcohol Beverages for On-premises Consumption to Sell Remaining Inventory to Another On-premises Retail Seller of Alcohol Beverages with whom there is Common Ownership when No Longer Licensed to Sell Alcohol Beverages for On-premises Consumption,” by Sens. Bob Gardner & Andy Kerr and Reps. Matt Gray & Larry Liston. The bill allows persons with certain retail licenses to purchase alcohol beverages from another retail licensee when there is common ownership between the licensees and the seller has surrendered its license within the last 60 days.
  • SB 18-160 – “Concerning the Authority to Operate Certain Teacher Development Programs, and, in Connection Therewith, Establishing Alternative Licensure Programs and Induction Programs,” by Sen. Kent Lambert and Rep. Millie Hamner. Under existing law, school districts are permitted to operate induction programs for teachers, special services providers, principals, and administrators, and alternative licensure programs for teachers and principals, who do not hold professional licenses. The bill clarifies that charter schools and the state charter school institute may operate such programs.
  • SB 18-165 – “Concerning Requirements for Public Administrators,” by Sens. Tim Neville & Nancy Todd and Reps. Faith Winter & Lori Saine. The bill The bill increases the amount of bond public administrators are required to maintain to $100,000 and clarifies additional requirements.
  • SB 18-173 – “Concerning the Ability of Certain Establishments Licensed to Sell Alcohol Beverages for On-premises Consumption that Serve Food to Allow a Customer to Remove One Opened Container of Partially Consumed Vinous Liquor from the Licensed Premises,” by Sen. Bob Gardner and Rep. Leslie Herod. Currently, certain liquor licensees may sell one opened container of partially consumed vinous liquor to a customer if the licensee has meals available for consumption on the licensed premises. The bill expands the requirement to include licensees that makes sandwiches and light snacks available for consumption on the premises.

For a list of all of Governor Hickenlooper’s 2018 legislative actions, click here.

Colorado Court of Appeals: Prior Public Use Doctrine Precludes Condemnation that would Eliminate Public Use

The Colorado Court of Appeals issued its opinion in CAW Equities, L.L.C. v. City of Greenwood Village  on Thursday, March 22, 2018.

Eminent DomainPrivate CondemnationPrior Public Use DoctrineColorado Constitution Article XVI, Section 7.

CAW Equities, L.L.C. (CAW) sought private condemnation of a public equestrian and pedestrian trail (public trail) that bisects two of its adjacent properties to construct a ditch from the Highline Canal to the southern end of its properties. The City of Greenwood Village (City) owned the public trail from a plat dedication and separate dedication for equestrian and pedestrian use. The City moved to dismiss under CRCP 12(b)(1).The district court denied the petition and awarded the City attorney fees and costs.

On appeal, CAW argued that the district court erred in holding that CAW lacked the authority to condemn the public trail. The Court of Appeals agreed with the district court, finding that the legislature, through the eminent domain statutes, may regulate Colo. Const. art. XVI, section 7 (Section 7) so long as it does not unnecessarily limit or curtail the constitutional right.

CAW also argued that Section 7 is self-executing and cannot be limited or curtailed by the eminent domain statutes. The Court concluded that while Section 7 may be self-executing, well-settled law recognizes the legislature’s ability to regulate private condemnation, and the eminent domain statutes properly regulate the exercise of this right under Section 7.

CAW alternatively argued that even if the eminent domain statutes apply, its proposed plan does not violate them. It claimed that Section 7 does not require it to show a ditch is necessary, and that it provides an absolute right to condemn. The Court did not decide whether CAW must prove the ditch is necessary to access its water rights to be able to condemn the ditch because the land CAW sought to condemn was already in public use as a public trail. The Court decided, as a matter of first impression, that the prior public use doctrine applies to private condemnation proceedings under Section 7. Though Section 7 grants general authority to condemn public property for a right-of-way to access water, it does not expressly grant the authority to extinguish an existing public use on such property; it merely grants express authority to a right-of-way if that right-of-way does not extinguish the public use. Further, the right to condemn an entire tract of public land in public use is not a necessary implication of the general right to privately condemn a right-of-way for a ditch. Here, there were other ways of transporting the water without interfering with the public trail. Where a private condemnor can obtain a right-of-way without extinguishing the existing public use, the condemnation power does not necessarily imply such a power. The district court was correct in finding that CAW failed to (1) allege express authority for its right to condemn all of the public trail; (2) prove that the right to condemn property already in public use was a necessary implication of its private condemnation right; and (3) prove that some public exigency existed to justify the necessity of condemning the public trail.

The Court also affirmed the City’s award of its attorney fees and costs.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Bills Modernizing Statutory Language, Requiring Rent Receipts from Landlords, and More Signed

On Thursday, March 22, 2018, the governor signed 25 bills into law. He also sent one  bill to the Secretary of State without a signature on Friday. To date, he has signed 81 bills and sent one to the Secretary of State without a signature. The bills signed Thursday include several bills modernizing and clarifying statutory language, as well as a bill requiring residential landlords to issue rent receipts, a bill adding two types of protection orders, and more. The bills signed Thursday and passed on Friday are summarized here.

  • SB 18-005 – “Concerning Economic Assistance for Rural Communities Experiencing Certain Significant Economic Events that Lead to Substantial Job Loss in those Communities, and, in Connection Therewith, Authorizing the Department of Local Affairs to Coordinate Nonmonetary Assistance to Assist Rural Communities with Job Creation or Retention,” by Sens. Kerry Donovan & Ray Scott and Rep. Dylan Roberts. The bill authorizes the Executive Director of the Department of Local Affairs (Executive Director) or the Executive Director’s designee to coordinate the provision of nonmonetary resources to assist with job retention or creation in a rural community experiencing a significant economic event, such as a plant closure or layoffs, including industry-wide layoffs, that has a significant, quantifiable impact on jobs within that community.
  • SB 18-009 – “Concerning the Right of Consumers of Electricity to Interconnect Energy Storage Systems for Use on their Property,” by Sens. Kevin Priola & Stephen Fenberg and Reps. Faith Winter & Polly Lawrence. The bill declares that consumers of electricity have a right to install, interconnect, and use energy storage systems on their property, and that this will enhance the reliability and efficiency of the electric grid, save money, and reduce the need for additional electric generation facilities.
  • SB 18-010 – “Concerning the Requirement that a Residential Landlord Provide a Tenant with Specified Documents Relevant to the Landlord-Tenant Relationship, and, in Connection Therewith, Specifying Rent Receipts and Copies of any Written Lease Agreement as Documents that Must be Provided,” by Sens. Beth Martinez Humenik & Angela Williams and Rep. Tony Exum. The bill requires a residential landlord to provide each tenant with a copy of a written rental agreement signed by the parties and to give a tenant a contemporaneous receipt for any payment made in person with cash or a money order. For payments not made in person with cash or a money order, the landlord must provide a receipt if the tenant requests it.
  • SB 18-020 – “Concerning Mental Health Care Professionals who are Permitted to Perform Auricular Acudetox,” by Sen. Leroy Garcia and Rep. Daneya Esgar. The bill allows registered psychotherapists who have documented that they have undergone auricular acudetox training to perform auricular acudetox.
  • SB 18-046 – “Concerning Authorization to Increase the Minimum Donation Required to be Issued a Certificate that Qualifies a Person to be Issued a Group Special License Plate,” by Sen. Dominick Moreno and Reps. Dafna Michaelson Jenet & Faith Winter. The bill authorizes nonprofit organizations to increase by $10 the minimum donation for the issuance of special license plates.
  • SB 18-060 – “Concerning Protective Orders in Criminal Cases,” by Sen. Don Coram and Rep. Millie Hamner. The bill adds 2 new potential protection orders to the list of options available to the court. They are an order prohibiting the taking, transferring, concealing, harming, disposing of, or threatening to harm an animal owned, possessed, leased, kept, or held by the alleged victim or witness; and an order directing a wireless telephone service provider to transfer the financial responsibility for and rights to a wireless telephone number or numbers to the alleged victim or witness if the alleged victim or witness satisfies certain criteria.
  • SB 18-069 – “Concerning Enforcement of Statewide Degree Transfer Agreements,” by Sens. Chris Holbert & Rachel Zenzinger and Reps. Alec Garnett & Jon Becker. If an institution of higher education admits as a junior a transfer student who holds an associate of arts degree, associate of applied science degree, or an associate of science degree that is the subject of a statewide degree transfer agreement, the institution shall not require the student to complete any additional courses to fulfill general education requirements.
  • SB 18-093 – “Concerning the Repeal of Obsolete Provisions in the Colorado Medical Assistance Program Relating to the Inactive Home- and Community-Based Services Waiver for Persons Living with AIDS,” by Sen. Dominick Moreno and Rep. Jeni James Arndt. The bill repeals the inactive home- and community-based services waiver under the Colorado medical assistance program for persons with health complexes related to acquired immune deficiency syndrome (persons living with AIDS waiver).
  • SB 18-101 – “Concerning Student Admission to Colorado State University – Global Campus,” by Sens. Chris Holbert & Nancy Todd and Reps. Millie Hamner & Kevin Van Winkle. The bill removes a prohibition on admitting first-time freshman baccalaureate students who reside in Colorado and who are under 23 years of age.
  • HB 18-1005 – “Concerning Notice of Postsecondary Course Enrollment Options Available to High School Students,” by Reps. Brittany Petterson & Jon Becker and Sen. Kevin Priola. The bill requires a notice to students and parents of postsecondary course opportunities to include information regarding the local education provider’s timelines that affect student eligibility to take these courses and a statement informing students that they may significantly reduce college expenses, increase the likelihood of completing college, and earn marketable workforce skills by taking concurrent enrollment courses.
  • HB 18-1023 – “Concerning the Nonsubstantive Relocation of Laws Related to Legalized Marijuana from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill creates Title 44 and relocates the statutes related to legalized marijuana from Title 12 to Title 44.
  • HB 18-1032 – “Concerning Access to Medical Records from the Department of Public Health and Environment’s EMS Agency Patient Care Database by Health Information Organization Networks,” by Reps. Chris Kennedy & Dan Thurlow and Sens. Rhonda Fields & Jack Tate. The bill requires the Department of Public Health and Environment to provide individualized patient information from the department’s EMS agency patient care database to health information organization networks for any use allowed under the federal “Health Insurance Portability and Accountability Act of 1996.”
  • HB 18-1045 – “Concerning the Application of Silver Diamine Fluoride to Dental Patients,” by Rep. Jonathan Singer and Sen. Jack Tate. The bill allows a dental hygienist to apply silver diamine fluoride under the direct or indirect supervision of a dentist.
  • HB 18-1050 – “Concerning Competency to Proceed for Juveniles Involved in the Juvenile Justice System,” by Rep. Jonathan Singer and Sen. Rhonda Fields. The bill establishes a juvenile-specific definition of ‘competent to proceed’ and ‘incompetent to proceed’ for juveniles involved in the juvenile justice system, as well as specific definitions for ‘developmental disability’, ‘mental capacity’, and ‘mental disability’ when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.
  • HB 18-1051 – “Concerning Statutory Provisions Enacted to Promote the Extinguishment of Unattended Fires,” by Reps. Millie Hamner & Terri Carver and Sens. Don Coram & Michael Merrifield. The bill states that any person who starts or maintains a campfire commits the offense of leaving a campfire unattended if he or she knowingly or recklessly fails to reasonably attend the campfire at all times or fails to thoroughly extinguish the campfire before leaving the site.
  • HB 18-1052 – “Concerning Local Education Providers’ Receipt of Concurrent Enrollment Courses from a Two-year Institution of Higher Education Outside of the Institution’s Approved Service Area when the Institution Approved to Serve the Local Education Provider Declines to Provide Concurrent Enrollment Courses,” by Reps. Paul Lundeen & Jeff Bridges and Sen. Nancy Todd. The bill requires the commission to establish a policy that allows a 2-year institution of higher education to provide a concurrent enrollment program or course to a local education provider that is not within its college service area if the designated 2-year institution of higher education chooses not to provide a concurrent enrollment program or course requested by the local education provider.
  • HB 18-1066 – “Concerning Clarifying that the Law Enforcement and Defense Counsel Exemption for Sexual Exploitation of a Child Crime Does Not Change the Discovery Procedures for Sexually Exploitative Material,” by Reps. Yeulin Willett & Mike Foote and Sen. John Cooke. The bill clarifies that the sexual exploitation of a child statute does not change the discovery procedure for sexually exploitative materials and that the defendant and defense counsel personnel are not allowed to receive copies of the materials.
  • HB 18-1073 – “Concerning Water Districts’ Ability to Enter into Contracts Regarding their Water-related Assets,” by Rep. Matt Gray and Sen. Bob Gardner. The bill authorizes water districts, including water activity enterprises, to enter into contracts for water and the capacity in works and allows the contracts to be based on municipalities’ authority to contract for water and sewer facilities.
  • HB 18-1095 – “Concerning Educator Licenses Issued to Military Spouses,” by Reps. Terri Carver & Jeni James Arndt and Sens. Bob Gardner & Nancy Todd. The bill exempts military spouses from a requirement that teaching or special services experience be continuous, and instead requires 3 years of experience within the previous 7 years.
  • HB 18-1117 – “Concerning Liens that Attach to Personal Property that is Stored at a Self-service Storage Facility,” by Reps. Kevin Van Winkle & James Coleman and Sen. Jack Tate. The bill modifies the law governing the statutory lien that an owner of a self-storage facility has for the occupant’s late payment of rent or other charges.
  • HB 18-1141 – “Concerning the Removal of Outdated References in Statute to ‘Early Childhood Care and Education Councils,'” by Rep. Edie Hooten and Sen. Rachel Zenzinger. The bill removes outdated references in statute to “early childhood care and education councils.” The term is no longer used. Instead, these entities are referred to as “early childhood councils.”
  • HB 18-1142 – “Concerning Modernizing Language in Statutory Sections that Refer to Paupers,” by Reps. Edie Hooten & Dan Thurlow and Sens. Beth Martinez Humenik & Rachel Zenzinger. The bill modernizes the language in statutory sections by replacing the terms ‘pauper’ and ‘paupers’ with ‘indigent’ or ‘indigent persons’.
  • HB 18-1183 – “Concerning the Continuation of the Regulation of Home Food Service Plans Pursuant to the “Sale of Meat Act”, and, in Connection Therewith, Implementing the Department of Regulatory Agencies’ Sunset Review Recommendation to Repeal the Act,” by Reps. Edie Hooten & Kim Ransom and Sen. Randy Baumgartner. The bill implements the recommendation of the Department of Regulatory Agencies, as contained in the Department’s sunset review of home food service plans, by repealing the ‘Sale of Meat Act’, thereby eliminating the regulation of home food service plans by the department of agriculture.
  • HB 18-1210 – “Concerning Peace Officer Status for the Administrator of Judicial Security in the Colorado Judicial Department,” by Rep. Mike Foote and Sen. John Cooke. The bill designates an administrator of judicial security in the Colorado judicial department as a peace officer who must be certified by the peace officer standards and training board.
  • HB 18-1249 – “Concerning the Requirement that the State Treasurer Distribute any Federal Funds Related to the Naval Oil Shale Reserve Land to Specified Counties or their Federal Mineral Lease Districts,” by Reps. Bob Rankin & Millie Hamner and Sen. Kevin Lundberg. If the state receives any federal mineral lease revenue from oil and gas production on naval oil shale reserve land that was set aside prior to January 1, 2009, and withheld by the federal government, then instead of depositing the money in the mineral leasing fund the state treasurer is required to distribute the money to certain counties or a related federal mineral lease district.

The bill that the governor sent to the Secretary of State without a signature was HB 18-1086, “Concerning Allowing Community Colleges to Offer a Bachelor of Science Degree in Nursing,” by Reps. Janet Buckner & Paul Lundeen and Sens. Tim Neville & Irene Aguilar.

For a complete list of the governor’s 2018 legislative actions, click here.

Several JDF and C.R.C.P. Forms and Instructions Amended in January

The Colorado State Judicial Branch amended 41 forms in January, including forms in the adoption, appellate, civil, criminal, domestic relations, and name change categories. Several bills were amended in February also; these will be discussed in a future post.

The forms amended in January are available here as PDF downloads, and are available as Word documents and templates from the State Judicial forms page. Additionally, the Filing Fees (JDF 1) were revised in November 2017, along with six other forms, all of which are available here.

ADOPTION

  • JDF 340 – “Oath or Affirmation of Confidentiality Regarding Motion to Open Adoption and Relinquishment Files” (Revised 1/18)
  • JDF 341 – “Motion and Affidavit to Open Adoption File by Adoptive Parent or Custodial Grandparent” (Revised 1/18)
  • JDF 342 – “Motion and Affidavit to Open Adoption File by Sibling of an Adoptee or Half-Sibling of an Adoptee” (Revised 1/18)
  • JDF 343 – “Motion and Affidavit to Open Adoption File by Adoptee” (Revised 1/18)
  • JDF 454 – “Verified Statement of Fees Charged” (Revised 1/18)
  • JDF 501 – “Petition for Adoption” (Revised 1/18)
  • JDF 502 – “Petition for Stepparent Adoption” (Revised 1/18)
  • JDF 503 – “Petition for Custodial Adoption” (Revised 1/18)
  • JDF 504 – “Petition for Second Parent Adoption” (Revised 1/18)
  • JDF 505 – “Petition for Kinship Adoption” (Revised 1/18)
  • JDF 508 – “Consent to Adoption – Sole Legal Parent” (Revised 1/18)
  • JDF 509 – “Consent to Adoption – Custodial Parent” (Revised 1/18)
  • JDF 510 – “Consent to Adoption – Non-Custodial Parent” (Revised 1/18)
  • JDF 511 – “Consent to Adoption – Child Over 12 Years of Age” (Revised 1/18)
  • JDF 517 – “Motion and Affidavit for Publication of Notice” (Revised 1/18)
  • JDF 527 – “Petition for Validation of Foreign Decree of Adoption” (Revised 1/18)
  • JDF 528 – “Petition for Adult Adoption” (Revised 1/18)

AGISTOR’S LIEN

  • JDF 131 – “Instructions for An Agistor’s Lien” (Revised 1/18)

APPELLATE

  • JDF 605 – “Instructions for Appealing Property Tax Assessments with the District Court” (Revised 1/18)
  • JDF 640 – “Notice of Limited Appearance by an Attorney with Consent of Pro Se Party Under C.A.R. 5 in an Appellate Matter” (Revised 1/18)
  • JDF 641 – “Consent to Limit Appearance by an Attorney Under C.A.R. 5 in an Appellate Matter” (Revised 1/18)

CIVIL

  • JDF 105 – “Pattern Interrogatories Under C.R.C.P. 369(g) – Individual” (Revised 1/18)
  • JDF 108 – “Pattern Interrogatories Under C.R.C.P. 369(g) – Business” (Revised 1/18)
  • JDF 253 – “Motion and Order to Set Aside Dismissal/Default Judgment” (Revised 1/18)
  • JDF 256 – “Notice of Representation by Attorney” (Revised 1/18)
  • JDF 622 – “Proposed Case Management Order” (Revised 1/18)

CRIMINAL

  • C.R.C.P. Form 4 – “Petition for Post-Conviction Relief Pursuant to Crim. P. 35(c)” (Revised 1/18)
  • JDF 221 – “Instructions for Filing a Municipal or County Court Criminal Appeal” (Revised 1/18)
  • JDF 301 – “Instructions to File an Expungement Juvenile “JV” or Municipal Case” (Revised 11/17)
  • JDF 302 – “Petition for Expungement of Records” (Revised 11/17)
  • JDF 304 – “Order of Expungement of Records” (Revised 11/17)
  • JDF 323(a) – “Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed Prior to July 1, 2014)” (Revised 1/18)
  • JDF 323(b) – “Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Alcohol or Marijuana by an Underage Person (MIP) or Possession of Marijuana Paraphernalia (Offenses Committed After July 1, 2014)” (Revised 1/18)
  • JDF 324 – “Petition for Expungement of Records for a Law Enforcement Contact Not Resulting in Referral to Another Agency” (Revised 11/17)
  • JDF 326 – “Order of Expungement of Records for a Law Enforcement Contact Not Resulting in Referral to Another Agency” (Revised 11/17)
  • JDF 460I – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Conviction” (Revised 1/18)
  • JDF 477 – “Motion to Seal Criminal Justice Records” (Revised 10/17)
  • JDF 611 – “Instructions to File a Petition to Seal Criminal Conviction Records Involving Controlled Substances and Petty Offenses and Municipal Violations” (Revised 1/18)

DOMESTIC RELATIONS

  • JDF 1111 – “Sworn Financial Statement” (Revised 1/18)
  • JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support and/or Maintenance Orders” (Revised 1/18)
  • JDF 1816 – “Motion and Affidavit for Citation for Contempt of Court” (Revised 1/18)
  • No JDF Number – “Income Withholding for Support Information” (Revised 1/18)

FILING FEES

  • JDF 1 – “Filing Fees, Surcharges, and Costs in Colorado Courts” (Revised 11/17)

GARNISHMENT/EVICTIONS

  • C.R.C.P. Form 26 – “Writ of Continuing Garnishment” (Revised 1/18)
  • C.R.C.P. Form 30 – “Claim of Exemption to Writ of Garnishment with Notice” (Revised 1/18)
  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED)/Eviction” (Revised 1/18)

NAME CHANGE

  • JDF 420 – “Instructions for Filing a Change of Name (Minor)” (Revised 1/18)
  • JDF 427 – “Public Notice of Petition for Change of Name” (Revised 1/18)

PROTECTED PERSONS

  • JDF 396 – “Instructions for Protected Person Motion to Modify/Dismiss Protection Order” (Revised 1/18)

For all of State Judicial’s JDF forms, click here.

Colorado Supreme Court: Encroaching Tree on Property Line Belongs to Party on whose Property Tree First Grew

The Colorado Supreme Court issued its opinion in Love v. Klosky on Monday, March 19, 2018.

Adjoining Landowners—Stare Decisis.

In this case, the supreme court considered whether to overrule Rhodig v. Keck, 421 P.2d 729 (Colo. 1966), which outlines the test for ownership of a tree that encroaches onto a neighbor’s land. Under that test, an encroaching tree remains the sole property of the owner of the land where the tree first grew, unless the tree was jointly planted, jointly cared for, or treated as a partition between the two properties. The supreme court upheld Rhodig. The court found that Rhodig’s approach remains sound and it failed to see how overruling Rhodig would do more good than harm.

The court then applied to Rhodig to the decision at hand. Here, the trial court found that the tree in question began life on Klosky’s land and encroached onto the Loves’ land, and there was no joint activity implying shared ownership of the tree. Because the Loves failed to prove any such shared property interest in the tree, the court concluded that the Loves cannot prevent Klosky from removing the encroaching tree.

Summary provided courtesy of Colorado Lawyer.

Bills Signed Allowing Alcohol to be Auctioned at Special Events, Amending Employer Ability to Access FPPA Plans, and More

On Thursday, March 1, 2018, Governor Hickenlooper signed 26 bills into law. To date, he has signed 29 bills this legislative session. Many of the bills signed Thursday were supplemental appropriations bills or bills moving statutes from Title 12, C.R.S., but among the rest were bills allowing the auctioning of alcohol in sealed containers at special events, amending an employer’s ability to access Fire and Police Pension Association plans, and adopting the Enhanced Nurse Licensure Compact. Summaries of the bills signed Thursday are available here.

  • HB 18-1022 – “Concerning a Requirement that the Department of Revenue Issue a Request for Information for an Electronic Sales and Use Tax Simplification System,” by Reps. Lang Sias & Tracy Kraft-Tharp and Sens. Cheri Jahn & Tim Neville. The bill requires the department of revenue to issue a request for information for an electronic sales and use tax simplification system that the state or any local government that levies a sales or use tax, including a home rule municipality and county, could choose to use that would provide administrative simplification to the state and local sales and use tax system.
  • HB 18-1031 – “Concerning Employer Entry into the Fire and Police Pension Association Defined Benefit System,” by Reps. Jovan Melton & Kim Ransom and Sens. John Cooke & Matt Jones. The bill allows an employer that provides a money purchase plan to apply to the board, with a single application, to cover some or all of the existing members of its money purchase plan in the defined benefit system. Current law requires the employer to apply to the board separately for each plan.
  • HB 18-1075 – “Concerning the Enactment of Colorado Revised Statutes 2017 as the Positive and Statutory Law of the State of Colorado,” by Reps. Pete Lee & Leslie Herod and Sens. Daniel Kagan & John Cooke. This bill enacts the softbound volumes of Colorado Revised Statutes 2017, including the corrected replacement volume consisting of titles 42 and 43, as the positive and statutory law of the state of Colorado and establishes the effective date of said publication.
  • HB 18-1079 – “Concerning a Requirement that the Works Allocation Committee Prepare Annual Recommendations for the Use of the Colorado Long-term Works Reserve,” by Rep. Susan Beckman and Sen. Larry Crowder. The bill requires the works allocation committee to annually submit to the executive director of the Department of Human Services, the governor, and the joint budget committee recommendations for the use of the money in the Colorado long-term works reserve for the upcoming state fiscal year.
  • HB 18-1144 – “Concerning Certain Publishing Requirements for the Department of Revenue’s ‘Disclosure of Average Taxes Paid’ Table,” by Rep. Dan Thurlow and Sen. Jack Tate. The bill updates language regarding mailing of tax tables, and refers in general to the department’s website and also requires the department to provide the table on the software platform that the department makes available to taxpayers to file individual income taxes rather than refer to the “NetFile” link.
  • HB 18-1159 – “Concerning a Supplemental Appropriation to the Department of Education,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Education.
  • HB 18-1160 – “Concerning a Supplemental Appropriation to the Offices of the Governor, Lieutenant Governor, and State Planning and Budgeting,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the offices of the governor, lieutenant governor, and state planning and budgeting.
  • HB 18-1161 – “Concerning a Supplemental Appropriation to the Department of Health Care Policy and Financing,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Health Care Policy and Financing.
  • HB 18-1162 – “Concerning a Supplemental Appropriation to the Department of Human Services,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Human Services.
  • HB 18-1163 – “Concerning a Supplemental Appropriation to the Judicial Department,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Judicial Department.
  • HB 18-1164 – “Concerning a Supplemental Appropriation to the Department of Personnel,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Personnel.
  • HB 18-1165 – “Concerning a Supplemental Appropriation to the Department of Public Safety,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Public Safety.
  • HB 18-1166 – “Concerning a Supplemental Appropriation to the Department of Regulatory Agencies,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Regulatory Agencies.
  • HB 18-1167 – “Concerning a Supplemental Appropriation to the Department of Revenue,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Revenue.
  • HB 18-1168 – “Concerning a Supplemental Appropriation to the Department of State,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of State.
  • HB 18-1169 – “Concerning a Supplemental Appropriation to the Department of the Treasury,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of the Treasury.
  • HB 18-1170 – “Concerning Funding for Capital Construction, and Making Supplemental Appropriations in Connection Therewith,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes supplemental appropriations for capital construction projects.
  • HB 18-1173 – “Concerning a Supplemental Transfer of Money from the General Fund to the Information Technology Capital Account of the Capital Construction Fund for the 2017-18 State Fiscal Year,” by Rep. Bob Rankin and Sen. Kent Lambert. For the 2017-18 fiscal year, the bill transfers $2,888,529 from the general fund to the information technology capital account of the capital construction fund.
  • SB 18-019 – “Concerning an Expansion of the Duration for which the Colorado Water Resources and Power Development Authority may Make a Loan Under the Authority’s Revolving Loan Programs,” by Sens. Kerry Donovan & Don Coram and Reps. Chris Hansen & Jeni James Arndt. Current law limits the duration of any water pollution control loan to 20 years; this bill removes the 20-year limitation.
  • SB 18-027 – “Concerning the Enactment of the ‘Enhanced Nurse Licensure Compact’, and, in Connection Therewith, Making an Appropriation,” by Sens. Jim Smallwood & Nancy Todd and Reps. Tracy Kraft-Tharp & Hugh McKean. The bill repeals the current ‘Nurse Licensure Compact’ and adopts the ‘Enhanced Nurse Licensure Compact’.
  • SB 18-030 – “Concerning the Nonsubstantive Relocation of Laws Related to Self-Propelled Vehicles from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Chris Holbert & Daniel Kagan and Reps. Mike Foote & Yeulin Willett. The bill creates Title 44 in the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-032 – “Concerning the Nonsubstantive Relocation of Laws from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Reps. Mike Foote & Leslie Herod. The bill relocates articles 26 and 26.1 from Title 12 to a new part in Title 18, and relocates the Uniform Unsworn Declarations Act to a new article in Title 13.
  • SB 18-034 – “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Gaming from Title 12, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. John Cooke & Lucia Guzman and Reps. Cole Wist & Pete Lee. The bill creates a new Title 44 and relocates certain statutory sections to Title 44.
  • SB 18-035 – “Concerning the Nonsubstantive Relocation of Laws Related to Gambling Payment Intercept from Title 24, Colorado Revised Statutes, to a New Title 44 as Part of the Organizational Recodification of Title 12,” by Sens. Bob Gardner & John Cooke and Rep. Cole Wist. The bill creates Title 44 of the Colorado Revised Statutes and relocates certain statutory sections to Title 44.
  • SB 18-041 – “Concerning the Ability of Operators of Sand and Gravel Mines to Use Water Incidental to Sand and Gravel Mining Operations to Mitigate the Impacts of Mining,” by Sens. Don Coram & Randy Baumgartner and Reps. Lori Saine & Jeni James Arndt. The bill specifies that the groundwater replacement plan or the plan of substitute supply and the permit may authorize uses of water incidental to open mining for sand and gravel, including specifically the mitigation of impacts from mining and dewatering.
  • SB 18-054 – “Concerning a Limitation on the Amount of an Increase in Fees Assessed Against Assisted Living Residences by the Department of Public Health and Environment,” by Sen. Larry Crowder and Rep. Larry Liston. Current law requires the State Board of Health to establish a schedule of fees for health facilities, including assisted living facilities. The bill applies an inflation rate limitation to the fees for assisted living facilities.
  • SB 18-067 – “Concerning the Ability of Certain Organizations Conducting a Special Event to Auction Alcohol Beverages in Sealed Containers for Fundraising Purposes under Specified Circumstances,” by Sens. Rachel Zenzinger & Kevin Priola and Reps. Tracy Kraft-Tharp & Kevin Van Winkle. The bill specifically allows certain organizations to bring onto and remove from the premises where an event will be held, whether licensed or unlicensed, alcohol beverages in sealed containers that were donated to or otherwise lawfully obtained by the organization and will be used for an auction for fundraising purposes as long as the alcohol beverages remain in sealed containers at all times and the licensee does not realize any financial gain related to the alcohol beverage auction.

For a list of the governor’s 2018 legislative decisions, click here.

Colorado Court of Appeals: City Had Power to Convey Park Not Dedicated to Public Use

The Colorado Court of Appeals issued its opinion in Save Cheyenne v. City of Colorado Springs on Thursday, February 2, 2018.

Land Exchange—Home Rule Cities.

The Colorado Springs City Council adopted a resolution approving a land exchange between the City, on the one hand, and the Broadmoor Hotel, Inc.; the Manitou and Pike’s Peak Railway Company; the COG Land & Development Company; and PF, LLC (collectively, the Broadmoor) on the other hand. As relevant here, a 189.5 acre parcel within Cheyenne Park known as “Strawberry Fields” was transferred to the Broadmoor for construction of a private equestrian center on an 8.5 acre building envelope within the parcel. As a condition of the transfer, the Broadmoor is required to allow continued public access to Strawberry Fields, with the exception of the land within the building envelope. In exchange, the Broadmoor transferred to the City more than 300 acres of land and trail easements to be added to the City’s park system.

Plaintiff, a local nonprofit corporation, filed suit, seeking a declaration that the resolution authorizing the land exchange was null and void, and injunctive relief preventing the land exchange. It also alleged a zoning violation. The City and the Broadmoor moved to dismiss under C.R.C.P. 12(b)(5), for failure to state any claims, and under C.R.C.P. 12(b)(1), arguing that the zoning challenge was unripe. The district court granted the motion.

The court of appeals first rejected defendants’ motion to dismiss plaintiff’s appeal based on mootness. Plaintiff argued that the resolution was an ultra vires act of the City Council because Cheyenne Park had previously been dedicated as a public park, and as a consequence, the City holds the park in trust for the public and cannot convey the park’s land. The Court concluded that no valid statutory dedication of Cheyenne Park occurred, and that any common law dedication was abrogated. The City Council had the power to convey Strawberry Fields when it authorized the land exchange.

Plaintiff next argued that under C.R.S. § 31-15-713(1)(a) no conveyance of the parkland could be made unless it was authorized by a vote in a public election. Colorado Springs is a home rule city and therefore in matters of local concern, a home-rule ordinance supersedes a conflicting state statute. The Colorado Springs City Code provides that land exchanges are to be reviewed by the City Council and approved by resolution. The Code provision applies, and the City was not required to hold an election before making the land transfer.

The court also rejected plaintiff’s argument that the resolution and land exchange violated article XI, section 2 of the Colorado Constitution, which prohibits transfers of city property without consideration. Here, the City received consideration for the parkland.

Plaintiff next contended that the City Council’s resolution approving the land exchange violates the City Charter. The Charter sections at issue only regulate granting franchises and leases on public property and city-owned parklands. The transaction here did not create a lease or franchise on City property, and these provisions do not apply to the conveyance.

Lastly, the court concluded that plaintiff’s claim of zoning violations is not yet ripe for review. The record does not demonstrate that a final zoning decision has been made regarding the permitted uses of Strawberry Fields. The district court properly dismissed this claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: When Liability Based on Respondeat Superior, Settlement with Agent is Setoff Against Jury Verdict for Principal

The Colorado Court of Appeals issued its opinion in Marso v. Homeowners Realty on Thursday, February 8, 2018.

Respondeat Superior—Agent—Amendment of Answer—Affirmative Defense—Setoff—Settlement—Statutory Prejudgment Interest.

Dilbeck was employed by or associated with Homeowners Realty, Inc., d/b/a/ Coldwell Banker Home Owners Realty, Inc. (Coldwell) and acted as the Marsos’ agent in their purchase of a house. Two years after the purchase, the Marsos discovered that uranium tailings had been used as fill material, creating a potential health hazard. The Marsos filed a complaint against Dilbeck and Coldwell alleging negligence against Dilbeck and respondeat superior liability against Coldwell. Before the scheduled trial date, the Marsos settled with Dilbeck for $150,000, inclusive of interest. The jury was instructed to determine the total amount of damages sustained by the Marsos and was not informed of the amount of the settlement with Dilbeck. The jury returned a verdict of $120,000 against Coldwell. In post-trial proceedings, the trial court set off the settlement payment of $150,000 against the $120,000 jury verdict, resulting in a zero recovery for the Marsos. Because the settlement payment exceeded the jury verdict, the court entered judgment in favor of Coldwell and later entered a cost award against the Marsos of approximately $30,000.

On appeal, the Marsos contended that the court abused its discretion in allowing Coldwell to amend its answer to assert the affirmative defense of setoff over the Marsos’ timeliness objection. Because Coldwell did not obtain the settlement agreement until shortly before trial and the Marsos had no right to rely on the absence of a setoff, the amendment did not result in legal prejudice to the Marsos. Under these circumstances, the court did not abuse its discretion in allowing Coldwell to pursue its setoff defense.

The Marsos next argued that the trial court erred when it set off the settlement payment against the jury verdict. When a party’s liability is based entirely on respondeat superior, a settlement with the agent is setoff against the jury verdict entered against the principal. Therefore, the trial court did not err in this regard.

The Marsos also contended that the trial court erred when it set off the settlement payment before statutory prejudgment interest accrued on the jury verdict. Statutory prejudgment interest accrues on the jury verdict before the setoff. Here, the court must calculate the interest that accrued on the jury’s verdict from the date of the Marsos’ injury to the date of Dilbeck’s settlement payment and add it to the jury verdict

The judgment and cost award in Coldwell’s favor was reversed, and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Interview with Eric Nesbitt: Real Estate Attorney, CBA-CLE Board Member, Basketball Afficionado

Editor’s Note: In honor of Black History Month, we will be interviewing faculty and authors throughout February. Stay tuned each Wednesday for a new faculty/author profile.

By Mary Dilworth

Colorado Bar Association CLE (CBA-CLE) is providing an interview series with several of our African-American faculty and authors. Our hope is that this series is able to inspire others by sharing the journey and achievements of these successful attorneys.

Our first interview is with Eric Nesbitt, an active member of the Colorado Bar Association, a CBA-CLE board member and a talented member of the CBA-CLE faculty, who has spoken at several CLE conferences including the annual Real Estate Symposium and Business Law Institute.

Eric is the sole shareholder of the Law Offices of Eric L. Nesbitt, P.C., which focuses on real estate law matters (visit them online at NesbittLawOffices.com). He is also the owner of The Nesbitt Commercial Group, a commercial real estate brokerage firm affiliated with Keller Williams DTC. Originally from Chicago, Eric moved to Colorado in 1996 to become the General Counsel and Director of Business Affairs for USA Basketball, the governing body for the sport of basketball in the United States. In that position, he was the attorney for the 1996 and 2000 Men’s Olympic Basketball “Dream Teams.” He loved Colorado so much, he decided to make it his home.

What inspired you to become an attorney? I visited Los Angeles and Beverly Hills as a kid and was in awe of all of the big houses and abundance of wealth. I asked my parents what job could I get as an adult to get a big house, and they told me to consider becoming a doctor or a lawyer. I thought being a doctor would be too gory, so I set my aspirations to be a lawyer. In addition, as a kid I always saw lawyers on the CBS show “60 Minutes,” and it seemed like a cool profession.

What do you enjoy about the practice of law? I really like helping people. I receive genuine satisfaction when I meet with clients and I can solve their problems or address their legal needs. It’s a very uplifting feeling. I also appreciate how legal training has provided me with the flexibility to pursue other business interests, such as commercial real estate brokerage and athlete representation. Being a lawyer prepares you to do practically anything!

What black historical figure do you admire? Thurgood Marshall and Martin Luther King, Jr. are probably the black historical figures I admire the most.

What about someone from today who inspires you? Oprah Winfrey and President Obama are people who inspire me today.

Favorite Book? Why Should White Guys Have All the Fun, by Reginald Lewis.

Favorite Movie? The Godfather.

What do you do in your spare time for fun? What spare time? I like hanging out with my family, wining and dining my wife, and traveling when I can get away. I also try to fit in a round of golf in when I can.

What advice would you give to new attorneys? Work hard, develop relationships, and have fun when you can.

Colorado Court of Appeals: Easement Deed Valid Even Without Description of Dominant Estate

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Armstrong on Thursday, December 28, 2017.

Real Property—Easements Appurtenant—Dominant Estate—Servient  Estate—Statute of Frauds—Constructive Notice—Extrinsic Evidence—Reverter Clause.

In 1984, Mackey executed a deed (Mackey deed) purporting to convey to Jefferson County a permanent public easement over a portion of the southeast corner of her property. Jefferson County executed a deed to the City of Lakewood (Commissioners deed) conveying the Mackey deed easement using the same legal description. The Commissioners deed contained a reverter clause that required Lakewood to use the easement exclusively for public open space, park, and recreational purposes. In 2011, the Armstrongs bought the property from Mackey’s successor in interest and occupied it. After the Armstrongs attempted to obstruct the easement’s use by locking a gate at one entrance to it, Lakewood filed suit. The district court entered summary judgment for Lakewood, finding that the easement was a valid express easement appurtenant.

On appeal, the Armstrongs asserted that the district court erred in granting Lakewood’s motion for summary judgment because the Commissioners deed violates the statute of frauds and is void for failing to legally describe the easement itself or the dominant estate. An easement does not require the precise description that a possessory interest does. While an instrument must identify with reasonable certainty the easement created and the dominant and servient estates, no particular words are necessary. Here, although the Commissioners deed does not expressly describe a dominant estate, it describes the entire servient estate and describes the easement itself with reasonable certainty and is not rendered invalid by any deficiency in the easement’s description. Further, the easement was recorded in the Jefferson County Clerk and Recorder’s Office over 25 years before the Armstrongs’ purchase of the property. Therefore, the Armstrongs had constructive notice of the easement.

The Armstrongs also contended that the district court impermissibly looked to extrinsic evidence to interpret the Commissioners deed. However, a court may consider extrinsic evidence to determine whether the description of an easement in a deed is reasonably certain or instead is invalid for vagueness. The district court did not err in considering undisputed extrinsic evidence to determine that the easement’s description encompassed the entire servient estate and what, if any, dominant estate the easement served for the purpose of determining whether the easement was identified with reasonable certainty and was therefore valid.

The Armstrongs further contended that the district court erred in enforcing the Commissioners deed because the reverter clause in the deed had been triggered, so the deed expired. The easement’s use is the determinative factor for triggering the reverter clause, not the zoning of the land benefited. Lakewood produced undisputed evidence showing that the dominant estate served by the easement has been continuously used exclusively for public open space, park, and recreational purposes. The reverter clause was not triggered.

The Armstrongs additionally argued that the Commissioners deed was void because Jefferson County did not have the authority to purchase the easement for use by Lakewood. Here, Jefferson County had the authority to purchase an easement for access to a public park or open space owned by Lakewood under its implied powers to promote public projects or public open space and parkland.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.