October 1, 2014

JDF Forms Revised in Domestic, Probate, Seal My Case, and Other Categories

The Colorado State Judicial Branch revised many forms in July and August 2014. Several summons forms in the Domestic Relations category were revised, and additions of Returns of Service and Waivers and Acceptance of Service were made available for download as Word documents to accompany the revised forms. A new category was added for sealing underage alcohol and marijuana cases for offenses occurring after July 1, 2014. Forms were also amended in the Adoption, DMV Appeal, Probate, Miscellaneous, and Water categories.

Forms are available for download here as PDF documents, and are available as Word documents or Word templates from State Judicial’s Forms page.

Adoption

  • JDF 506 – “Notice of Adoption Proceedings and Summons to Respond” (revised 8/14)

Appeals

  • JDF 599 – DMV Appeal – “Complaint for Judicial Review Pursuant to Title 42, C.R.S., Request for Stay and Designation of Record” (revised 8/14)

Domestic

  • JDF 1102 – “Summons for Dissolution of Marriage or Legal Separation” (revised 8/14)
  • JDF 1102(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1102(b) – “Return of Service” (8/14)
  • JDF 1222 – “Summons for Registration of Foreign Decree” (revised 8/14)
  • JDF 1222(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1222(b) – “Return of Service” (8/14)
  • JDF 1251 -“Summons for Dissolution of Civil Union or Legal Separation of Civil Union” (revised 8/14)
  • JDF 1262 – “Summons for Declaration of Invalidity of Civil Union” (revised 8/14)
  • JDF 1262(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1262(b) – “Return of Service” (8/14)
  • JDF 1406 – “Motion to Modify/Restrict Parenting Time” (revised 8/14)
  • JDF 1414 – “Summons to Respond to Petition for Allocation of Parental Responsibilities” (revised 8/14)
  • JDF 1414(a) – “Waiver and Acceptance of Service” (8/14)
  • JDF 1414(b)- “Return of Service” (8/14)
  • JDF 1502 – “Summons in Paternity” (8/14)
  • JDF 1502(a)- “Waiver and Acceptance of Service” (8/14)
  • JDF 1502(b)- “Return of Service” (8/14)
  • JDF 1515 – “Summons to Disclaim Paternity” (revised 8/14)
  • JDF 1515(a)- “Waiver and Acceptance of Service” (8/14)
  • JDF 1515(b)- “Return of Service” (8/14)
  • JDF 1602 – “Summons for Declaration of Invalidity of Marriage” (revised 8/14)
  • JDF 1602(a)- “Waiver and Acceptance of Service” (8/14)
  • JDF 1602(b)- “Return of Service”

Guardianship/Conservatorship/Probate/Trust & Estate

  • JDF 998 – “Instructions for Completing Affidavit for Collection of Personal Property” (revised 8/14)
  • JDF 800 – “Acknowledgment of Responsibilities Conservator and/or Guardian” (revised 8/14)
  • JDF 848 – “Order Appointing Guardian for Adult” (revised 8/14)
  • JDF 861 – “Petition for Appointment of Conservator – Minor” (revised 8/14)
  • JDF 878 – “Order Appointing Conservator for Adult” (revised 8/14)
  • JDF 999 – “Collection of Personal Property by Affidavit” (revised 8/14)

Miscellaneous

  • JDF 36 – “Petition for Relief Pursuant to §13-5-142.5 OR §13-9-124 From Federal Firearms Prohibitions Imposed Pursuant to 18 U.S.C. §922(d)(4) and (g)(4)” (8/14)

Seal My Case

  • JDF 323 – “Instructions to File a Petition to Seal Records Related to Underage Possession or Consumption of Alcohol or Marijuana (MIP)” (8/14)
  • JDF 313 – “Petition to Seal Records Related to Underage Possession and Consumption of Underage Alcohol or Marijuana (MIP)” (8/14)
  • JDF 314 – “Order Regarding the Sealing of Records Related to Underage Possession or Consumption of Alcohol or Marijuana (MIP)” (8/14)
  • JDF 416 – “Instructions to File a Petition to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 417 – “Petition to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 418 – “Order to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 419 – “Order and Notice of Hearing (Sealing of Records)” (revised 8/14)
  • JDF 435 – “Order Denying Petition to Seal Arrest & Criminal Records” (revised 8/14)
  • JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 8/14)
  • JDF 612 – “Petition to Seal Criminal Conviction Records” (revised 8/14)
  • JDF 613 – “Order Denying Petition to Seal” (revised 8/14)
  • JDF 614 – “Order and Notice of Hearing” (revised 8/14)
  • JDF 615 – “Order to Seal Criminal Conviction Records” (revised 8/14)
  • JDF 617 – “Certificate of Mailing (Sealing and Conviction Actions)” (revised 8/14)

Water

  • JDF 295W – “Standardized Instructions for all Colorado Water Court Divisions” (revised 8/14)

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

Colorado Court of Appeals: Consent of All Beneficiaries Necessary to Ratify Action Contravened by Terms of Trust

The Colorado Court of Appeals issued its opinion in In re Estate of Foiles: Foiles v. Foiles on Thursday, August 14, 2014.

Trust—Beneficiaries—Breach of Fiduciary Duty.

The trustees of the Clyde Foiles Trust were Ruth Foiles, Larry Foiles, and the Farmers State Bank of Fort Morgan (Bank). Larry Foiles, along with Larry’s two children and his nephew Gregory Foiles, were beneficiaries of the trust. The trust prohibited Larry Foiles from exercising powers as trustee that were directly or indirectly for his own benefit, and required that any such actions be taken solely by the Bank. Gregory Foiles contested two transactions undertaken at least in part by Larry Foiles, alleging that the transactions were a breach of his fiduciary duty. The trial court entered judgment in favor of Larry Foiles.

On appeal, Gregory Foiles contended that the trial court improperly ruled on his breach of fiduciary duty claim. In the absence of a trust provision that would allow ratification by a co-trustee of otherwise invalid actions of a trustee, only the consent of all beneficiaries, with full capacity to give such consent and full knowledge of the relevant facts, could ratify an action of a trustee that is in violation of the express terms of a trust. Here, because Larry Foiles’s undertaking of the 2001 Section 1031 exchange of real property violated the terms of the trust, the Bank, as co-trustee, could not validly ratify that action. Under the terms of the trust, only the Bank would have been authorized to undertake such a transaction. Therefore, Gregory Foiles established a prima facie claim that Larry breached his fiduciary duty, and the trial court erred in ruling that ratification by the Bank precluded Gregory Foiles’s breach of fiduciary duty claim. The judgment was reversed and the case was remanded to the trial court to make additional findings as to whether Larry Foiles met his burden to go forward with some evidence that the questionable transaction was fair and reasonable, and, ultimately, whether he was liable for breach of fiduciary duty in connection with that transaction.

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

Tenth Circuit: Oklahoma’s Same-Sex Marriage Ban Ruled Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Bishop v. Smith on Friday, July 18, 2014.

Sally Smith, the County Clerk for Tulsa County, Oklahoma, appealed the district court’s decision that Oklahoma’s same-sex marriage ban is unconstitutional. Smith also challenged the standing of the plaintiffs to bring the action, and whether the Oklahoma court clerk is a proper defendant as to Oklahoma’s non-recognition provision concerning same-sex marriages performed in another state. The Tenth Circuit determined that the plaintiffs had standing, affirmed the district court’s decision, and determined that the Oklahoma court clerk was an improper party regarding the non-recognition provision. In affirming, the Tenth Circuit applied its ruling in Kitchen v. Herbert, the Utah same-sex marriage case, in which it held that plaintiffs who wish to marry a partner of the same sex seek to exercise a fundamental right and state justifications for banning such marriages that hinge on the procreative potential of opposite sex marriage do not satisfy a narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Mary Bishop and Sharon Baldwin are Oklahomans who are in a long-term relationship and wish to marry. They sought a marriage license from the Tulsa County Court Clerk in 2009 but were denied because they are both women. They have suffered harms from the denial, including incurring legal fees to prepare estate planning documents to confer upon each other the same rights they would have in marriage. Susan Barton and Gay Phillips were married in Canada in 2005 and again in California in 2008. They have suffered adverse tax consequences as a result of Oklahoma’s refusal to recognize their marriage, and say that Oklahoma treats them as inferior to their opposite-sex counterparts.

In November 2004, Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma governor and  attorney general, challenging Oklahoma’s state constitutional ban on same-sex marriage. The governor and attorney general filed a motion to dismiss in 2006, which was denied, and appealed that denial to the Tenth Circuit. A panel of the Tenth Circuit determined in 2009 that plaintiffs failed to name a defendant having a causal connection to their injury, such as a court clerk. On remand, the district court allowed plaintiffs to amend their complaint to add Smith in her official capacity as Tulsa County Court Clerk, and to add challenges to §§ 2 and 3 of DOMA against the United States ex rel. Eric Holder. In 2011, the United States notified the district court that it would no longer defend § 3 of DOMA on the merits, and the Bipartisan Legal Advisory Group was allowed to intervene to defend the law. The case proceeded to summary judgment, and Smith submitted an affidavit that she had no authority to recognize out-of-state marriages, be they of same-sex or opposite-sex couples.

After the U.S. Supreme Court’s decision in United States v. Windsor, the district court entered an opinion and order disposing of the defendants’ motion to dismiss and the cross-motions for summary judgment. The district court ordered that Phillips and Barton lacked standing to challenge DOMA because state law resulted in the non-recognition of their marriage; any challenge to DOMA was moot in light of the Windsor decision; Phillips and Barton lacked standing to challenge Oklahoma’s non-recognition provision because Smith is not involved in recognition; and Oklahoma’s ban on same-sex marriage (Part A of SQ 711) violates the Equal Protection Clause. Smith appealed the decision regarding Part A and Barton and Phillips cross-appealed the conclusion that they lacked standing. The DOMA issues were not challenged.

Smith first contends that plaintiffs lack standing to challenge Part A of SQ 711 because they do not simultaneously contest a state statute to the same effect. However, the Tenth Circuit determined that a constitutional amendment would have the effect of superseding all previous statutes. The statute is not enforceable independent of SQ 711.

In addressing the merits of Smith’s appeal regarding Part A, the Tenth Circuit applied its reasoning from the Kitchen case. The Tenth Circuit opined that the Supreme Court’s dismissal in Baker v. Nelson is not controlling, plaintiffs seek to exercise a fundamental right to marry, and state justifications against same-sex marriage based on procreation fail to satisfy a strict scrutiny test. The Tenth Circuit first rejected Smith’s Baker arguments that lower courts are not free to reject summary dismissals, stating that her argument is undermined by the explicit language of the case creating the rule. Next, the Tenth Circuit evaluated her contention that children have an interest in being raised by their biological parents. The Tenth Circuit ruled that this contention is contradicted by statutes allowing adoption, egg and sperm donation, and other non-biological means for child-rearing. The Tenth Circuit noted that the state failed to raise arguments why same-sex marriage proposes a greater threat than other non-biological child-raising scenarios. Further, the Tenth Circuit stated that Oklahoma’s ban sweeps too broadly, because not all opposite-sex couples are able to procreate or are interested in procreation, and they are not denied the ability to marry.

As to the challenge to the non-recognition provision, the Tenth Circuit determined that Phillips and Barton lacked standing in this area because Smith is not a proper party. Smith submitted an affidavit to the effect that she is not able to recognize any marriages in her official capacity, and the affidavit is sufficient to establish that Smith is not a proper party regarding non-recognition. The Tenth Circuit sympathized with the plaintiffs, who have been litigating the issue for ten years, but suggested instead that if they attempted to file a joint tax return and were denied, they would be able to sue the Tax Commission regarding the denial.

The judgment of the district court was affirmed.

Probate, Domestic, Foreclosure, and Transcript Request Forms Revised

In June and July 2014, the Colorado State Judicial Branch issued several revised JDF forms. The Transcript Request Form, JDF 4, was revised in July and crosses many categories, including appeals, criminal, and miscellaneous. Other categories with revised forms include domestic relations, probate, and foreclosure. The revised forms are available here in PDF format, and are available for download as Word documents from the State Judicial forms pages.

DOMESTIC

  • JDF 1700 – “Instructions to File for Grandparent or Great-Grandparent Visitation” (revised 6/14)
  • JDF 1701 – “Verified Pleading Affidavit for Grandparent/Great-Grandparent Visitation” (revised 6/14)
  • JDF 1702 – “Order re: Pleading Affidavit for Grandparent/Great-Grandparent Visitation” (revised 6/14)
  • JDF 1704 – “Motion to Intervene” (revised 6/14)
  • JDF 1705 – “Order to Intervene” (revised 6/14)

EVICTIONS AND FORECLOSURES

  • JDF 618 – “Notice of Hearing for Expedited Residential Foreclosure Sale” (revised 6/14)

PROBATE

  • JDF 800 – “Acknowledgment of Responsibilities Conservator and/or Guardian” (revised 7/14)
  • JDF 841 – “Petition for Appointment of Guardian for Adult” (revised 6/14)
  • JDF 850 – “Guardian’s Report – Adult” (revised 6/14)

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

Denver DA Mitch Morrissey is Keynote Speaker at the 16th Annual Senior Law Day on July 19

Layout 1Denver District Attorney Mitch Morrissey is the keynote speaker for this year’s 16th Annual Denver Senior Law Day. As the chief prosecutor in Denver, he is responsible for the prosecution of more than 6,000 felony and 18,000 misdemeanor criminal cases every year, and is a staunch advocate for fraud prevention and education in the Denver community.

With incredible resources and educational workshops, this event is not only for seniors in the community, but also valuable for adult children and caregivers who are helping aging parents, relatives, or friends. The event is from 8:00 a.m. to 1:20 p.m. on Saturday, July 19 at the Denver Mart.

The 16th Annual Senior Law Day offers the public the opportunity to hear from experienced elder law attorneys and other professionals involved in elder care issues.  This year there are thirty-three unique, informative workshops to choose from that will help seniors learn how to better manage family and financial issues and prepare for retirement.

Workshops this year include “How Hospice and Palliative Care Can Save Your Life,” “Aging in Place – Maintaining Your Independence at Home,” “ Assisted Living and Nursing Home Issues,” “ Estate Planning: Wills, Trusts & Your Property,” “ Hanging Up the Car Keys for Good,” “ Living Wills, Advance Medical Directives, DNR Orders, Proxies, and End of Life Issues,” “Medicaid and Medicare 101,” “ Planning For Your Pets,” “Powers of Attorney and Guardianship & Conservatorship,” “ Social Security,” “To Marry or Not to Marry—That is the Question,” “ VA Benefits,” and “ What to do When Someone Dies.”

Attendees are also available to meet with an attorney at the “Ask-A-Lawyer” Session, a free 15-minute meeting with an attorney to ask about elder law and trust and estate issues. For more information on this and a full list of workshops, go to http://www.seniorlawday.org/denver.

Much of the content presented at Denver Senior Law Day also can be found in the comprehensive 2014 Senior Law Handbook, which is distributed free at the event. The Senior Law Handbook is supported through the generous contributions from organizations and law firms, including Rose Community Foundation—an organization that supports efforts to improve the quality of life throughout the Greater Denver community through its endowed grantmaking programs, and by advising and assisting donors who wish to make thoughtful charitable investments to better the community.

A $10 contribution is suggested but not required to attend the event. Registration is requested; call (303) 860-0608 or dial toll-free (888) 860-2531, or go online to register at  www.seniorlawday.org and click on the “Denver” tab. Business vendors and potential exhibitors should contact Sherrill Wolf at (303) 860-0608.

Full details on the event are available at  www.seniorlawday.org/denver.

Inherited IRAs in Light of the U.S. Supreme Court’s Decision in Clark v. Rameker

This post originally appeared on Barbara Cashman’s Denver Elder Law blog on June 18, 2014.

CashmanBy Barbara Cashman

Everyone knows what an IRA is – right?  We think IRAs have been around a really long time, but they only came into being in 1975 with ERISA legislation, and Roth IRAs came in 1997. IRAs are classic nonprobate property that someone can pass to others without probate in many circumstances.

Q: What happens if I complete the beneficiary designation form?

A: Your beneficiaries will have much more flexibility and protections (especially on the tax front).

Q: What happens if I don’t bother with the beneficiary form?

A: Well, you won’t be around to find out – right?!  Here’s a link to a Colorado Business Magazine article about the importance of designating a beneficiary to maintain that flexibility.

Some handy IRA vocabulary words:

  • RBD – required beginning date (701/2 years of age), after which you are required to withdraw the
  • RMD – required minimum distribution, an annual distribution.

Here it is important to consider whether the decedent died after his or her RBD.  If she or he was already receiving RMDs, you will want to determine whether the distribution for that final year needs to be paid. Be sure to check with the account custodians to determine if the distribution was made before the date of death.  There are two basic types of IRAs that can be passed along to survivors:

  1. Spousal IRA 
    This is generally the simplest to accomplish and a spouse will want to consider among several choices –  to roll them over into an IRA, start receiving benefits, have them paid out in a lump sum, or disclaim some portion to minimize estate taxes in the spouse’s estate.
  2. Inherited IRA
    There is an important distinction initially regarding whether the beneficiary designation was made out to the beneficiaries or left blank. . .  There is generally much more flexibility when the designations are completed.

So here’s a question . . . . Whether inherited IRAs are generally exempt from creditors depends on where you live! Are these funds still qualified and exempt, or are they just another inherited asset?

In an inherited IRA scenario, a beneficiary (often an adult child) will need to take out the RMD in the parent’s IRA every year and declare that as income. In addition, the IRA cannot be added to by the inheritor. You might be wondering what types of protections are afforded inherited IRAs from the creditors of the inheritor. Well, I can say with all lawyerlike confidence . . .  it depends. Under Colorado law, specifically Colo. Rev. Stat. § 13-54-102(1)(s), there is an exemption from judgment creditors for certain types of retirement accounts and benefits. The definition includes IRAs “as defined under Section 408 of the Code” (this would be 26 U.S.C. § 408(d)(3)(C)(ii)). Under the Bankruptcy Abuse Preventive and Consumer Protection Act of 2005 (BAPCPA), many states opted out of the federal bankruptcy exemptions in favor of state law exemptions. Read more on this topic here from my learned colleague Laurie Hunter.

It is important to consider that there are at least three different layers to the inherited IRA treatment: federal tax law, state law relating to bankruptcy and what creditors can collect, and bankruptcy. Until just a few days ago, when the U.S. Supreme Court ruled on a writ of certiorari on the U.S. Court of Appeals for the Seventh Circuit’s 2013 decision, In re Clark, there was a split among the federal circuit courts of appeal – you can read more about it here.

The Federal Circuit Courts of Appeal Were Split Over the Meaning of the Phrase “Retirement Funds”

Two federal courts of appeal – the Fifth and Seventh Circuits (whose decisions were binding in the regions that they cover – Colorado is part of the Tenth Circuit) had come to opposite conclusions while interpreting the meaning of the same term. In 2013, the Fifth Circuit decided that the phrase “retirement funds” in the bankruptcy exemption statute quoted above means any funds “set apart” in anticipation of “withdrawal from office, active service, or business” and that the statute does not limit “retirement funds” solely to funds of the bankrupt debtor, so long as the funds were originally “set apart” for someone’s retirement. In re Chilton, 674 F.3d 486 (5th Cir. 2012). Once the funds were set apart for retirement, they maintained that same character for bankruptcy exemption purposes. The court thereby permitted the debtor in Chilton to exempt all of a $170,000 IRA inherited from her mother.

In Clark, the Seventh Circuit expressly disagreed with the Fifth Circuit, adding that it “do[es] not think the question is close.” The Seventh Circuit observed that, while inherited IRAs do shelter money from taxes until it is withdrawn, they lack many of the other attributes of an IRA. That court noted in particular that the beneficiary of an inherited IRA is prohibited from rolling those funds over into his or her own IRA and from adding her own funds to the inherited IRA. The beneficiary must take distributions from the inherited IRA within a year of the original owner’s death and complete those payouts over a defined period, often as little as five years, regardless of the beneficiary’s age and employment status. In short, once the original owned died, “the money in the inherited IRA did not represent anyone’s retirement funds.” That court of appeals declined to extend the character of a decedent’s retirement funds into the inheritance context and therefore decedent’s daughter could not then use that money as her own retirement savings, and it became no different from an inherited certificate of deposit or money market account: non-exempt and available to distribute to the daughter’s creditors.  That was the essence of the split in the circuits.

Just a few days ago, the U.S. Supreme Court ruled unanimously in Clark v. Rameker that inherited IRAs are not protected in bankruptcy. Here’s a link to the SCOTUSblog coverage of the decision. The US Supreme Court followed the line of reasoning of the bankruptcy court and the Seventh Circuit, disallowing the attempt by petitioner in bankruptcy court, Hedi Heffron-Clark, to exclude the funds in the IRA from the bankruptcy estate using the “retirement funds” exemption under Section 522 of the Bankruptcy Code, which exempts tax-exempt retirement funds from a bankruptcy estate. Just in case you are an insomniac and want to read the entire decision, rendered June 12, 2014, here it is in pdf format.

I still think that, notwithstanding the U.S. Supreme Court’s ruling, inherited IRAs are  an important legacy for a parent to leave an adult child, and it is important to not underestimate the “emotional” value of the money from a deceased parent’s retirement savings for the use of a child’s retirement. But beware, they won’t be protected from an adult child’s creditors in a bankruptcy proceeding. So please remember that an IRA and an inherited IRA are not really the same animal!

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is the incoming chair of the Solo/Small Firm section. She contributes to the SOLOinCOLO blog and blogs weekly on her law firm blog, where this post originally appeared. She can be contacted at barb@DenverElderLaw.org.

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

Bills Regarding Great-Grandparent Visitation, Workers’ Comp Treating Physicians, Marijuana Revenue, Segregation of Mentally Ill Inmates, and More Signed

The 2014 Legislative Session has now ended, and Governor Hickenlooper signed many bills into law this session. Over the past week, he signed 79 bills, allowed one to become law without a signature, and vetoed two bills. In total, the governor signed 396 bills, allowed one to become law without a signature, and vetoed four bills.

On Wednesday, June 4, 2014, the governor signed two bills. They are summarized here. The governor also vetoed one bill, SB 14-023 – Concerning an Authorization of the Voluntary Transfer of Water Efficiency Savings to the Colorado Water Conservation Board for Instream Use Purposes in Water Divisions that Include Lands West of the Continental Divide. The governor’s statement regarding SB 14-023 is available here.

  • SB 14-041 – Concerning the Creation of a USS Colorado License Plate for Motor Vehicles and, in Connection Therewith, Making an Appropriation, by Sen. Bernie Herpin and Reps. Bob Gardner & Spencer Swalm. The bill creates a special license plate to commemorate the USS Colorado.
  • SB 14-214 – Concerning the Studies Requested in the Department of Personnel’s Response to the Request for Information in the Fiscal Year 2013-14 Annual General Appropriation Act, and, in Connection Therewith, Making an Appropriation, by Sens. Kent Lambert & Pat Steadman and Reps. Cheri Gerou & Jenise May. The bill requires the state personnel director and the state auditor to conduct a compensation study to compare with similar workforce structures. The bill also requires PERA to provide member information and data to any third-party compensation consulting firm.

On Thursday, June 5, 2014, the governor signed 24 bills into law. Some of these are summarized here.

  • SB 14-125Concerning the Regulation of Transportation Network Companies, and, in Connection Therewith, Requiring Transportation Network Companies to Carry Liability Insurance, Conduct Background Checks on Transportation Network Company Drivers, Inspect Transportation Network Company Vehicles, and Obtain a Permit from the Public Utilities Commission; and Making an Appropriation, by Sens. Cheri Jahn & Ted Harvey and Reps. Dan Pabon & Libby Szabo. The bill creates a limited structure for transportation network companies, which use digital networks to connect riders to drivers who provide transportation in their area.
  • SB 14-172 – Concerning Employer-Paid Benefits to a Firefighter for Cardiac Illnesses Resulting from a Strenuous Work Event, and, in Connection Therewith, Making an Appropriation, by Sens. Lois Tochtrop & Linda Newell and Rep. Tracy Kraft-Tharp. The bill requires any municipality, special district, fire authority, or county improvement district employing firefighters to provide benefits for heart and circulatory malfunctions.
  • SB 14-213 – Concerning Increasing the Statutes of Limitations for Commencing Procedures Against a Person who, After Committing a Vehicular Homicide, Leaves the Scene of the Accident, and, in Connection Therewith, Requiring a Post-Enactment Review of the Implementation of this Act. The bill increases the statute of limitations for persons who leave the scene of a vehicular homicide from five years to ten years.
  • HB 14-1214 – Concerning an Increase in the Penalties for Certain Offenses Committed Against an Emergency Medical Services Provider, and, in Connection Therewith, Making an Appropriation, by Rep. Cheri Gerou and Sen. David Balmer. The bill adds working emergency medical service providers to the list of victims that trigger enhanced sentencing for first degree murder, first degree assault, and second degree assault.
  • HB 14-1228 – Concerning the Repeal of Certain Requirements for Defensive Driving Schools Attended in Accordance with a Court Order Resulting from a Violation of a Law Regulating the Operation of a Motor Vehicle and, in Connection Therewith, Reducing an Appropriation, by Reps. Cherylin Peniston & Libby Szabo and Sens. Lois Tochtrop & Steve King. The bill removes the requirement that the Department of Revenue monitor, evaluate, and report on the effectiveness of court-ordered driving programs, and eliminates the penalty surcharge on people who attend the courses.
  • HB 14-1260 – Concerning the Creation of Three Mandatory Minimum Presumptive Ranges for Defendants Convicted of a Felony Sex Offense Involving Intrusion Against a Child who is Under Twelve Years of Age when the Adult Defendant is At Least Ten Years Older that has One of the Ranges Starting at Ten Years as the Minimum in the Range, and, in Connection Therewith, Creating an Indeterminate Lifetime Sentence with a Mandatory Minimum Presumptive Range of Ten to Sixteen Years for a Class 4 Felony; a Mandatory Minimum Presumptive Range of Eighteen to Thirty-Two Years for a Class 3 Felony; and a Mandatory Minimum Presumptive Range of Twenty-Four to Forty-Eight Years for a Class 2 Felony, by Rep. Mike Foote  and Sen. Mike Johnston. The bill changes the sentencing parameters for adults who commit felony sex offenses on children under age 12.
  • HB 14-1279 – Concerning the Creation of a State Income Tax Credit to Reimburse a Business for Personal Property Taxes Paid in the State, by Reps. Dianne Primavera & Dave Young and Sens. Rollie Heath & Mark Scheffel. The bill creates a state income property tax credit to reimburse businesses for the amount of business personal property tax paid in Colorado.
  • HB 14-1383 – Concerning the Required Number of Physicians that Must Be Provided to an Injured Employee for Selection of a Treating Physician in Workers’ Compensation Cases, by Rep. Angela Williams and Sens. Lois Tochtrop & Jessie Ulibarri. The bill requires employers to provide injured workers a choice of at least four physicians at two or more distinct locations, with exceptions for rural areas.

On Friday, June 6, 2014, the governor signed 53 bills, allowed one to become law without a signature, and vetoed one bill. The bill he allowed to become law without a signature was HB 14-1371 Concerning Property Taxation of Oil and Gas Leaseholds and Lands and, in Connection Therewith, Specifying that the Wellhead is the Point of Valuation and Taxation for Such Leaseholds and Lands, which changed the point of taxation for oil and gas wells from the production point to the wellhead. The governor issued a statement about the bill (available here).

The bill the governor vetoed Friday was HB 14-1375 – Concerning Modifications to Statutory Provisions Governing Urban Redevelopment to Promote the Equitable Financial Contribution Among Affected Public Bodies in Connection with the Tax Increment Financing of Urban Redevelopment Projects. The governor’s statement regarding this bill is available here.

Summaries of some of the bills the governor signed on Friday are available here.

  • HB 14-1269 – Concerning the Circumstances Under Which a Person who Sells Items Subject to Sales Tax Must Collect Such Sales Tax on Behalf of the State, by Reps. Lois Court & Angela Williams and Sen. Mike Johnston. The bill expands the definition of “nexus” for sales tax purposes, broadening the types of business activity that create taxable sales.
  • HB 14-1280 – Concerning Limits on Liability for Agritourism, by Rep. Timothy Dore and Sen. Gail Schwartz. The bill renames “agricultural recreation activities” as “agritourism” and excludes marijuana-related activities from its definition.
  • HB 14-1321 – Concerning the Membership of the Colorado Task Force on Drunk and Impaired Driving, by Rep. Dave Young and Sen. Steve King. The bill changes the name of the Interagency Task Force on Drunk Driving to the Colorado Task Force on Drunk and Impaired Driving and makes several changes to membership requirements.
  • HB 14-1333 – Concerning the Funding of Colorado Water Conservation Board Projects and, in Connection Therewith, Making an Appropriation, by Reps. Randy Fischer & Don Coram and Sens. Gail Schwartz & Ted Harvey. The bill appropriates funds from the Colorado Water Conservation Board Construction Fund for specific projects and authorizes certain other transactions.
  • HB 14-1343 – Concerning Workers’ Compensation Coverage for Post-Traumatic Stress Disorder for Peace Officers, by Reps. Jonathan Singer & Jared Wright and Sen. Lois Tochtrop. The bill allows firefighters and peace officers to file workers’ compensation claims for post-traumatic stress disorder and specifies parameters for filing such claims.
  • HB 14-1356 – Concerning an Increase in the Colorado Oil and Gas Commission’s Penalty Authority and, in Connection Therewith, Making an Appropriation, by Rep. Mike Foote and Sen. Matt Jones. The bill increases the penalties for violations of the Oil and Gas Conservation Act.
  • HB 14-1362 – Concerning Great-Grandparent Visitation with Great-Grandchildren, by Rep. Dominick Moreno and Sen. Jessie Ulibarri. The bill allows great-grandparents to seek visitation rights with their great-grandchildren under the same circumstances as grandparent visitation rights are allowed.
  • HB 14-1387 – Concerning Revisions of Capital Related Statutes in the Colorado Revised Statutes and, in Connection Therewith, Amending or Repealing Obsolete, Inconsistent, and Conflicting Provisions of Law and Clarifying the Language to Reflect Legislative Intent and Current Application of the Law, by Reps. Libby Szabo & Randy Fischer and Sen. Gail Schwartz. The bill updates statutes related to capital construction projects and makes additional changes.
  • HB 14-1390 – Concerning the Legal Standing of a Member of the Public in Challenging a Violation of the Open Meeting Requirements, by Reps. Crisanta Duran & Bob Gardner and Sens. Greg Brophy & Rachel Zenzinger. The bill clarifies that anyone denied rights provided by the Open Meetings Law has standing to challenge the denial.
  • HB 14-1398 – Concerning the Provision of Financial Services to Licensed Marijuana Businesses, and, in Connection Therewith, Making an Appropriation, by Rep. Jonathan Singer and Sens. Pat Steadman & David Balmer. The bill allows for the creation and regulation of marijuana financial services cooperatives referred to as “cannabis credit co-ops” or CCCs, a new type of financial services entity with membership restricted to licensed marijuana businesses.
  • SB 14-021 – Concerning the Treatment of Persons with Mental Illness who are Involved in the Criminal Justice Systems, and, in Connection Therewith, Making an Appropriation, by Sens. Lois Tochtrop & Steve King and Rep. Jared Wright. The bill extends the repeal date of the Legislative Oversight Committee for the Continuing Examination of the Treatment of Persons with Mental Illness who are Involved with the Criminal and Juvenile Justice Systems. The bill also specifies areas of examination for the committee.
  • SB 14-064 – Concerning Restricting the Use of Long-Term Isolated Confinement for Inmates with Serious Mental Illness, and, in Connection Therewith, Making an Appropriation, by Sen. Jessie Ulibarri and Rep. Joseph Salazar. The bill requires the DOC to review the mental health status of offenders in segregation every 90 days, and requires that prior to placing an inmate in segregation, a review of the inmate’s mental health status should occur to determine if such placement is allowed.
  • SB 14-117 – Concerning the Reauthorization of the Regulation of Real Estate Appraisers by the Board of Real Estate Appraisers through a Recreation and Reenactment of the Relevant Statutes Incorporating no Substantive Amendments other than those Approved During the First Regular Session of the 69th General Assembly, by Sen. Cheri Jahn and Rep. Randy Fischer. The bill corrects an oversight from Senate Bill 13-155 and extends the repeal date of the Board of Real Estate Appraisers (board) in the Department of Regulatory Agencies (DORA) through September 1, 2022.
  • SB 14-129 – Concerning Changes to Criminal Provisions Related to Marijuana and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Rep. Jenise May. The bill affects a number of criminal provisions related to marijuana, including adding penalties for underage consumption and possession.
  • SB 14-193 – Concerning Conforming Colorado Law on Location Information with the Fourth Amendment as Interpreted by the United States Supreme Court in United States v. Jones, by Sens. Morgan Carroll & Kevin Lundberg and Rep. Jonathan Singer. The bill prohibits a state agency from obtaining location information from an electronic device without first obtaining a search warrant, with some exceptions.
  • SB 14-215 – Concerning the Disposition of Moneys Collected by the State in Connection with the Legal Marijuana Industry, and, in Connection Therewith, Making an Appropriation, by Sen. Pat Steadman and Reps. Crisanta Duran & Cheri Gerou. The bill creates the Marijuana Cash Tax Fund for tax revenue collected by the legal marijuana industry, and identifies the purposes for which funds may be appropriated from the Marijuana Cash Tax Fund.

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

Probate, Domestic Relations, Juvenile Law, Workers’ Comp Bills, and More Signed by Governor

Governor Hickenlooper continues to sign legislation, and has signed 54 bills in the last week. To date, he has signed 317 bills and vetoed two bills. Some of these are summarized here.

Thursday, May 29, 2014

  • SB 14-005 – Concerning Alternative Administrative Remedies for the Processing of Certain Wage Claims, and, in Connection Therewith, Amending the Provisions for Written Notices of a Wage Claim, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Jessie Ulibarri and Rep. Jonathan Singer. The bill authorizes the Division of Labor to develop an administrative process to handle wage claim cases.
  • SB 14-190 – Concerning Criminal Discovery, and, in Connection Therewith, Creating a Statewide Discovery Sharing System, a Criminal Discovery Surcharge, Civil Immunity for District Attorneys that Make a Good-Faith Effort to Redact Information from Discovery Documents, and Making an Appropriation, by Sen. Kent Lambert and Rep. Cheri Gerou. The bill implements the recommendations of the Discovery Task Force regarding creating and maintaining a statewide eDiscovery system.
  • SB 14-201 – Concerning Reestablishing a Child Protection Ombudsman Advisory Work Group to Develop a Plan for Accountable Autonomy for the Child Protection Ombudsman Program, by Sen. Linda Newell and Rep. Jonathan Singer. The bill creates a new advisory work group to evaluate the Office of Child Protection Ombudsman Program and recommend ways to improve efficiency.
  • SB 14-203 – Concerning the Office of the Respondent Parents’ Counsel in Cases of Alleged Child Abuse or Neglect, by Sens. Kent Lambert & Linda Newell and Reps. Jenise May & Bob Gardner. The bill creates the Office of Respondent Parents’ Counsel in the Judicial Department in order to provide legal representation to low income respondent parents in dependency and neglect cases.
  • HB 14-1273 – Concerning Human Trafficking, and, In Connection Therewith, Making and Reducing Appropriations, by Reps. Beth McCann & Jared Wright and Sens. Linda Newell & Gail Schwartz. The bill amends several statutory provisions concerning human trafficking.

Friday, May 30, 2014

  • HB 14-1080 – Concerning a Sales and Use Tax Exemption for the Colorado Ute Indians, by Reps. Mike McLachlan & Don Coram and Sen. Ellen Roberts. The bill clarifies that sales tax doesn’t apply to purchases made on reservations.
  • HB 14-1119 – Concerning an Income Tax Credit for the Donation of Food to a Hunger-Relief Charitable Organization, by Rep. Mike McLachlan and Sens. Mary Hodge & Ellen Roberts. The bill creates an income tax credit for individual and corporate taxpayers who donate food to hunger-relief charitable organizations.
  • HB 14-1222 – Concerning Modification of the Terms Under Which a County May Issue Tax-Exempt Private Activity Bonds on Behalf of an Eligible Applicant for the Purpose of Financing a Geothermal Energy Project on the Applicant’s Property, by Rep. Mike McLachlan and Sens. Gail Schwartz & Ellen Roberts. The bill changes several provisions regarding private activity bonds issued by counties.

Saturday, May 31, 2014

  • HB 14-1030 – Concerning the Establishment of Incentives for the Development of Hydroelectric Energy Systems, by Reps. Don Coram & Diane Mitsch-Bush and Sens. Gail Schwartz & Ellen Roberts. The bill facilitates the development of hydroelectric energy systems by the State Electrical Board and the Department of Regulatory Agencies.
  • HB 14-1275 – Concerning Authorization for the Parks and Wildlife Commission to Purchase Real Property to Build a Multi-Use Shooting Facility, by Reps. Crisanta Duran & Don Coram and Sens. Cheri Jahn & Ellen Roberts. The bill allows the Parks and Wildlife Commission to purchase certain real estate in Mesa County to build a multi-use shooting facility.
  • HB 14-1303 – Concerning the Receipt of Public Testimony from Remote Locations Around the State by Legislative Committees, and, in Connection Therewith, Making and Reducing Appropriations, by Reps. Ray Scott & Mark Ferrandino and Sen. Gail Schwartz. The bill allows the Executive Committee of the Legislative Council to establish policies to allow remote testimony from more than one location in Colorado.

Sunday, June 1, 2014

  • HB 14-1278 – Concerning Continuation of the Workers’ Compensation Accreditation Program Administered by the Division of Workers’ Compensation, and, in Connection Therewith, Implementing the Recommendations of the 2013 Sunset Report by the Department of Regulatory Agencies, by Rep. Paul Rosenthal and Sen. Lois Tochtrop. The bill continues the Workers’ Comp Accreditation Program and requires the DWC to conduct a study on the potential impact on the state of adopting the current version of the AMA Guides to Evaluation of Permanent Impairment.
  • HB 14-1323 – Concerning Restrictions on the Ability of a Government Entity to Access an Individual’s Personal Medical Information, by Rep. Dianne Primavera and Sens. Kevin Lundberg & John Kefalas. The bill places restrictions on the Department of Revenue’s use of personal medical information, and requires the DOR to receive an individual’s permission before accessing personal medical information.
  • HB 14-1322 – Concerning the Colorado Probate Code, by Rep. Mike McLachlan and Sen. Ellen Roberts. The bill makes several changes to the Colorado Probate Code provisions concerning control and distribution of estate assets.
  • HB 14-1363 – Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law, by Rep. Bob Gardner and Sen. Ellen Roberts. This bill, the Revisor’s Bill, makes several nonsubstantive changes to the Colorado Revised Statutes in order to repeal or amend obsolete or unclear provisions of the law.
  • HB 14-1379 – Concerning Clarifying the Application of the Spousal Maintenance Statutes, by Rep. Beth McCann and Sen. Andy Kerr. The bill clarifies the applicability of prior spousal maintenance statutes in cases filed prior to January 1, 2014.
  • SB 14-184 – Concerning Oversight of the Industrial Hemp Program, by Sen. Gail Schwartz and Rep. Don Coram. The bill modifies existing statutes related to the industrial hemp program and creates an industrial hemp research grant program.
  • SB 14-191 – Concerning the Procedures for Resolution of Workers’ Compensation Claims, by Sen. Lois Tochtrop and Rep. Dan Pabon. The bill makes several changes to provisions regarding the resolution of workers’ compensation claims.
  • SB 14-206 – Concerning Criminal Record Sealing Provisions, and, in Connection Therewith, Relocating the Record Sealing Provisions in a New Part, Clarifying when an Arrest Record can be Sealed, and Making Other Clarifying Changes, by Sen. Pat Steadman and Rep. Jonathan Singer. The bill reorganizes statutes regarding sealing of criminal records and relocates them to another section of statute.

Tuesday, June 3, 2014

  • HB 14-1156 – Concerning Extending the Age of Eligibility for the Child Nutrition School Lunch Protection Program, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Kevin Priola and Sen. Lois Tochtrop. The bill expands eligibility for the Child Nutrition School Lunch Protection Program from kindergarten through 2nd Grade to kindergarten through 12th Grade.
  • HB 14-1301 – Concerning the Safe Routes to School Program, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Dianne Mitsch Bush and Sen. Andy Kerr. The bill appropriates funds to the CDOT in order to continue the Safe Routes to School program, which distributes funds to projects to improve the safety of pedestrians and bicyclists in school areas.

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

Bills Regarding Provision of Social Workers for Juveniles, Annual Reports for Public Benefit Corporations, and More Signed

Governor Hickenlooper continues to sign legislation that cleared both houses this 2014 Legislative Session. He signed bills on Wednesday, May 14, 2014; Thursday, May 15; Friday, May 16; and Saturday, May 17. To date, he has signed 248 bills and vetoed two. Some of the bills signed each day last week are summarized here.

Wednesday, May 14, 2014

  • SB 14-164Concerning Aerial Firefighting Efforts Through the Division of Fire Prevention and Control in the Department of Public Safety, and, in Connection Therewith, Implementing Recommendations Made by the Division Regarding the Colorado Firefighting Air Corps, by Sens. Morgan Carroll & Steve King and Reps. Bob Gardner & Mike McLachlan. The bill directs the Division of Fire Prevention to maximize its aerial firefighting capabilities.
  • HB 14-1010 – Concerning Corrections to Statutory Provisions Relating to the Prescribed Burning Program Administered by the Division of Fire Prevention and Control in the Department of Public Safety, by Rep. Millie Hamner and Sen. George Rivera. The bill renames “prescribed burn manager” as “certified burner” and removes persons with this credential from the list of persons who may attend a prescribed burn in a supervisory role.
  • HB 14-1023 – Concerning the Provision of Social Workers to Juveniles, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Pete Lee and Sen. Jessie Ulibarri. The bill allows
    the Office of the State Public Defender to hire social workers to assist in juvenile defense cases, and specifies that any reports generated are to be considered evidence in the case.

Thursday, May 15, 2014

  • SB 14-073 – Concerning the State Income Tax Credit for the Environmental Remediation of Contaminated Land in the State, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Cheri Jahn and Rep. Cheri Gerou. The bill creates an income tax credit for individuals, organizations, and “qualified entities” that perform any approved environmental remediation of contaminated property.
  • SB 14-092 – Concerning the Creation of the Crime of Insurance Fraud, and, in Connection Therewith, Making an Appropriation, by Sen. George Rivera and Rep. Angela Williams. The bill classifies insurance fraud as a crime and identifies fraudulent actions for insurance claimants, agents, and brokers.
  • SB 14-156 – Concerning a Requirement that a Public Benefit Corporation file an Annual Report, by Sens. John Kefalas & Rollie Heath and Rep. Pete Lee. The bill requires Public Benefit Corporations to file annual reports that discuss the ways in which the corporation has promoted its specified public benefits and that assess its overall social and environmental performance against a third-party standard.
  • HB 14-1044 – Concerning Consequences for a Parolee who Tampers with an Electronic Monitoring Device that the Parolee is Required to Wear as a Condition of Parole, by Rep. Timothy Dore and Sen. Lois Tochtrop. The bill provides that if a parolee tampers with an electronic monitoring device, he or she is subject to immediate warrantless arrest.
  • HB 14-1144 – Concerning Measures to Improve the Performance of District Attorneys, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Bob Gardner and Sen. Mike Johnston. The bill provides for cost-sharing of salaries for entry-level deputy district attorneys.
  • HB 14-1347 – Concerning Statutorily Established Time Periods that are Multiples of Seven Days, by Rep. Lois Court and Sen. Linda Newell. The bill continues to revise statutes so that statutorily established time periods conform to the “rule of seven.”
  • HB 14-1353 – Concerning Powers of Appointment, by Rep. Bob Gardner and Sen. Mike Johnston. The bill creates the Uniform Powers of Appointment Act (act), as recommended by the Colorado Commission on Uniform State Laws.

Friday, May 16, 2014

  • SB 14-011 – Concerning the Colorado Energy Research Authority, by Sen. Rollie Heath and Rep. Dickey Lee Hullinghorst. The bill changes the name of the Colorado Renewable Research Authority to the Colorado
    Energy Research Authority and creates a cash fund.
  • HB 14-1005 – Concerning Clarification of the Requirements Applicable to a Change of Point of Water Diversion, by Reps. Jerry Sonnenberg & Dave Young and Sens. Kevin Lundberg & John Kefalas. The bill clarifies that if a ditch owner relocates a headgate to a new surface point of diversion, as long as the relocation does not physically interfere with the complete use of or enjoyment of other water rights, the owner does not need to file a change of water right application.

Saturday, May 17, 2014

  • HB 14-1001 – Concerning the Creation of a Property Tax Reimbursement for a Taxpayer that Owes Property Tax on Property that has been Destroyed by a Natural Cause, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Jonathan Singer and Sen. Jeanne Nicholson. The bill creates a reimbursement program for property taxes paid on a property that has been destroyed by a natural disaster.
  • HB 14-1159 – Concerning a State Sales and Use Tax Exemption for Components used in Biogas Production Systems, by Reps. Angela Young & Timothy Dore and Sens. Gail Schwartz & Larry Crowder. The bill creates a sales and use tax exemption for equipment used to capture biogas to be used as a renewable natural gas or the equipment used to turn biogas into electricity.
  • HB 14-1281 – Concerning the Allowance for Terminally Ill Patients to have Access to Investigational Products that have not been Approved by the Federal Food and Drug Administration that Other Patients have Access to when they Participate in Clinical Trials, by Reps. Joann Ginal & Janak Joshi and Sens. George Rivera & Irene Aguilar. The bill allows terminally ill patients to have access to experimental drugs without participating in a clinical trial.
  • HB 14-1349 – Concerning the Creation of an Exemption from Property Taxes for Qualifying Business Entities Controlled by Nonprofit Organizations that are Formed for the Purpose of Qualifying for Federal Tax Credits, by Reps. Dickey Lee Hullinghorst & Brian DelGrosso and Sen. Rollie Heath. The bill broadens eligibility for nonprofits for federal tax credits to LLCs and limited partnerships.

For a list of Governor Hickenlooper’s 2014 legislative decisions, click here.

HB 14-1353: Creating the Uniform Powers of Appointment Act, as Recommended by NCCUSL

On April 1, 2014, Rep. Bob Gardner and Sen. Mike Johnston introduced HB 14-1353 – Concerning Powers of Appointment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enacts the “Uniform Powers of Appointment Act” as recommended by the national conference of commissioners on uniform state laws. It repeals existing law on powers of appointment and makes conforming amendments. The CBA LPC has voted to support this legislation.

On April 21, the bill passed out of the House on 3rd Reading. The bill is assigned to the Judiciary Committee in the Senate.

Since this summary, the Senate Judiciary Committee referred the bill, unamended, for Second Reading. It passed Second Reading unamended in the Senate.

Colorado Court of Appeals: Involuntary Medication Administration in Non-Emergency Situation Requires Clear and Convincing Evidence that Deterioration Likely

The Colorado Court of Appeals issued its opinion in People in Interest of Marquardt on Thursday, April 24, 2014.

Involuntary Administration of Antipsychotic.

Larry Marquardt was committed to the Colorado Mental Health Institute at Pueblo (CMHIP) after having been found not guilty by reason of insanity in a criminal case. Since arriving at CMHIP, he was voluntarily taking ten milligrams of Saphris, an antipsychotic medication, once a day. The People petitioned the court to slowly increase the dosage to 20 milligrams per day, because he refused to voluntarily do so and his psychiatrist felt 10 milligrams was ineffective.

After a hearing, the court ordered the dosage could be increased over his objection. On appeal, Marquardt argued that the trial court erred in applying the elements established in People v. Medina, 705 P.2d 961 (Colo. 1985),to the facts of this case.

As a matter of first impression, the Court of Appeals had to decide whether Medina was applicable to a nonemergency request to increase antipsychotic medication dosage over a patient’s objection. It concluded it was applicable; however, the trial court applied an incorrect legal standard in its decision.

The trial court was required, pursuant to Medina, to find by clear and convincing evidence a number of factors, one of which was whether, absent the increased dosage, Marquardt would suffer significant and likely long-term deterioration to his mental health. Although the evidence supported the trial court’s finding that Marquardt was unlikely to improve at the current dosage, that was not the correct standard and there was not clear and convincing evidence that, absent the increased dosage, he would suffer a significant and likely long-term deterioration to his mental health. The order was reversed.

Summary and full case available here.

HB 14-1356: Strengthening the Penalty Authority of the Oil & Gas Conservation Commission

On April 4, 2014, Rep. Mike Foote and Sen. Matt Jones introduced HB 14-1356 – Concerning an Increase in the Colorado Oil and Gas Conservation’s Commission Penalty Authority and, in Connection Therewith, Making an AppropriationThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law specifies that a violation of the “Oil and Gas Conservation Act” is punishable by a maximum daily penalty of $1,000, subject to a penalty schedule promulgated by the oil and gas conservation commission that considers aggravating and mitigating circumstances. The maximum total penalty is capped at $10,000 for violations that do not result in significant waste of oil and gas resources, do not damage correlative rights, and do not result in a significant adverse impact on public health, safety, or welfare.

The bill:

  • Increases the maximum daily penalty to $15,000;
  • Directs the commission to:
    1. Adopt rules that specify a process for determining the dates on which a violation begins and ends; and
    2. Publish a quarterly report on its web site that specifies certain information about each penalty assessed in the previous quarter and discuss these reports at the department of natural resources’ SMART Act hearings; and
    3. Repeals the cap on the maximum total penalty.

The commission must hold a hearing if an operator is responsible for gross negligence or knowing and willful misconduct that results in an egregious violation or a pattern of violations. The commission may issue an order that prohibits the issuance of any new permits to the operator, suspends any or all of the operator’s certificates of clearance, or both. The commission may vacate the order after the operator has come back into compliance and paid all penalties.

The bill appropriates $80,425 from the oil and gas conservation and environmental response fund and .9 FTE to the commission to implement the act.

The bill cleared the House on April 21. In the Senate—the bill has been approved by the Local Government and Appropriations Committees. The bill is scheduled for 2nd Reading on the Senate floor.

Since this summary, the bill passed Second Reading with no amendments.