August 21, 2019

Archives for May 11, 2011

HB 11-1324: Extending Applicability of Legislation that Requires Refund of Entrance Fee of a Residential Nonprofit Member Within 90 Days of Resignation

On May 5, 2011, Rep. Cindy Acree, R-Aurora, and Sen. Greg Brophy, R-Wray, introduced HB 11-1324 – Concerning the applicability of provisions governing the financial obligations of a residential nonprofit corporation upon alteration of the membership status of a member. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Recent legislation requires a residential nonprofit corporation to refund the entrance fee of a residential member to the member or his or her heirs within 90 days after the member’s resignation, termination, expulsion, or suspension from the corporation or the transfer of the residential membership. The bill applies this provision only to contracts entered into on or after the effective date of that legislation, which was March 11, 2011, but reinstates the applicability of the provision to all contracts, including those entered into before that date, as of April 1, 2012. The bill was introduced on Thursday, May 5 and sent to the Economic and Business Development Committee; that committee approved the bill on Friday, May 6 and referred it to the full House for consideration on 2nd Reading.

Since this summary, the bill passed its Third Reading in the House, was introduced in the Senate, where it has since also passed its Third Reading.

Summaries of other featured bills can be found here.

HB 11-1322: Directing the State Treasurer to Transfer $100K from the Dep’t of State Cash Fund to the Internet-Based Voting Pilot Program Fund

On May 4, 2011, Rep. Marsha Looper, R-Calhan, and Sen. Bill Cadman, R-Colorado Springs, introduced HB 11-1322 – Concerning the transfer of moneys from the department of state cash fund to the internet-based voting pilot program fund for the implementation of the internet-based voting pilot program, and making an appropriation in connection therewith. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently the internet-based voting pilot program fund consists of only gifts, grants, and donations, and the pilot program cannot be implemented until enough gifts, grants, and donations are received to cover the costs of the pilot program.

The bill directs the state treasurer to transfer $100,000 from the department of state cash fund to the internet-based voting pilot program fund so that the secretary of state may begin implementing the pilot program. The bill was introduced on Wednesday but Friday was moving day for the bill: it passed out of the State, Veterans, and Military Affairs, Appropriations committees and 2nd Reading on the House floor. The bill awaits 3rd Reading on Monday, May 9.

Since this summary, the bill passed its Third Reading in the House.

Summaries of other featured bills can be found here.

HB 11-1323: Exempting Rural Health Clinics from State Licensure Requirements

On May 5, 2011, Rep. Tom Massey, R-Buena Vista, and Sen. Betty Boyd, D-Lakewood, introduced HB 11-1323 – Concerning an exemption from state licensure requirements for a community clinic that is a rural health clinic. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, community clinics, like some other health facilities, are required to obtain a license from, submit to on-site inspections by, and obtain approval of construction plans from the department of public health and environment.

The bill excludes from the definition of a community clinic any clinic that is a “rural health clinic” under the federal “Social Security Act,” thereby exempting rural health clinics from state licensure and related requirements. The bill clarifies that while a rural health clinic will no longer be licensed by the department, a rural health clinic continues as a general provider under the Colorado indigent care program. The Health and Environment Committee approved the bill on Friday, May 6 and sent it to the full House for consideration on 2nd Reading.

Since this summary, the bill was introduced in the Senate and has passed its Third Reading.

Summaries of other featured bills can be found here.

HB 11-1320: Prohibiting Collective Bargaining by Government Entities

On May 3, 2011, Rep. Janak Joshi, R-Colorado Springs, and Sen. Bill Cadman, R-Colorado Springs, introduced HB 11-1320 – Concerning a prohibition against collective bargaining by government entities. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits the state from recognizing any labor union or other employee association as a bargaining agent of any public officers or employees and from collectively bargaining or entering into any collective bargaining contract with any union or association or its agents with respect to any matter relating to them or their employment or service. The bill was introduced on Tuesday and assigned to the State, Veterans, & Military Affairs Committee; that committee approved the bill and sent it to the full House for consideration on 2nd Reading.

Summaries of other featured bills can be found here.

HB 11-1321: Allowing a Uniformed Services Elector to Verbally Provide a Commissioned Officer with Information Necessary to Request Mail-In Ballot

On May 4, 2011, Rep. Marsha Looper, R-Calhan, and Sen. Bill Cadman, R-Colorado Springs, introduced HB 11-1321 – Concerning the ability of a uniformed services elector to verbally provide a commissioned officer with the information necessary for the commissioned officer to request a mail-in ballot on behalf of the uniformed services elector. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows a uniformed services elector to verbally provide a commissioned officer with the information necessary for the officer to request a mail-in ballot on behalf of the uniformed services elector. Currently, such information must be provided in writing. The bill was introduced on Wednesday, passed out of the State Veterans, & Military Affairs Committee on Thursday, and passed 2nd Reading on Friday.

Since this summary, the bill passed its Third Reading in the House, was introduced in the Senate, and assigned to the Senate Committee on State, Veterans & Military Affairs, which postponed it indefinitely.

Summaries of other featured bills can be found here.

HB 11-1318: Repealing HB 10-1193 Regarding the Collection of Sales and Use Taxes on Sales Made by Out-of-State Retailers

On May 2, 2011, Reps. Amy Stephens, R-Monument, and Sue Schafer, D-Wheat Ridge, and Sens. Nancy Spence, R-Centennial, and Greg Brophy, R-Wray, introduced HB 11-1318 – Concerning the policy of the state of Colorado regarding notification of use taxes due on sales made by out-of-state retailers, and making an appropriation therefor. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals House Bill 10-1193 regarding the collection of sales and use taxes on sales made by out-of-state retailers enacted by the general assembly and signed into law on February 24, 2010, and repeals related rules promulgated by the department of revenue.

The bill also requires any retailer with gross annual sales totaling $500,000 or more that does not collect Colorado sales tax and that sells tangible personal property from a place of business outside this state for use in this state to notify the purchaser of Colorado purchases, either on its web site or by an email directed to the purchaser, that use tax may be imposed on the storage, use, or other consumption in this state of any items of tangible personal property purchased. The bill requires the notification to be readily visible. The bill also prohibits a retailer that does not collect Colorado sales tax and that sells tangible personal property from a place of business outside this state for use in this state from advertising that there is no tax due on purchases made from the retailer for use in this state. Introduced on Monday, the amended bill passed out of the Economic & Business Development and Appropriations Committees respectively on Wednesday, May 4. On 2nd Reading, the House amended the bill and passed it on Thursday; the bill cleared 3rd and final reading in the House on Friday.

Since this summary, the bill has been introduced in the Senate and assigned to the Senate State, Veterans & Military Affairs Committee, which postponed it indefinitely.

Summaries of other featured bills can be found here.

HB 11-1319: Dividing the State into Seven Congressional Districts Pursuant to Most Recent Federal Census

On May 3, 2011, Rep. David Balmer, R-Centennial, and Sen. Greg Brophy, R-Wray, introduced HB 11-1319 – Concerning the congressional redistricting of Colorado. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill divides the state into 7 congressional districts pursuant to the most recent federal census. On Thursday, the Congressional Redistricting Committee referred the unamended bill to the full House for consideration on 2nd Reading.

Since this summary, the bill passed its Third Reading in the House, was introduced in the Senate, and was assigned to the State, Veterans & Military Affairs Committee, which postponed it indefinitely.

Summaries of other featured bills can be found here.

HB 11-1317: Modifying Statutory Provisions Addressing Intergovernmental Cooperation with Wildland Fire Mitigation

On May 2, 2011, Rep. Cheri Gerou, R-Evergreen, and Sens. Joyce Foster, D-Denver, and Ellen Roberts, R-Durango, introduced HB 11-1317 – Concerning a modification of statutory provisions addressing intergovernmental cooperation in connection with wildland fire mitigation to clarify that such provisions are intended to affect land areas used solely for recreational purposes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2009, the general assembly enacted statutory provisions requiring each county or municipality that owns any land area that is located either entirely or partially outside its own territorial boundaries and inside the territorial boundaries of a county and that contains at least 50% forest land or land that constitutes a wildland area to enter into an intergovernmental agreement with the county for the purpose of mitigating forest land or wildland fires affecting the contiguous land areas of the local government and county.

As introduced, the bill clarifies that the land areas affected by the existing statutory provisions are specifically those used solely for recreational purposes. The bill also extends the date by which the local government is obligated to enter into such intergovernmental agreements. The bill further clarifies that the existing statutory provisions do not require any new agreement with respect to any land area that is not used solely for recreational purposes. Introduced on Monday, the amended bill cleared the House between Monday and Thursday of last week. Once the bill reached on the Senate it was sent to the Local Government Committee; on Thursday, that committee approved the bill and moved it to the Senate Consent Calendar for Second Reading.

Since this summary, the bill passed its Third Reading in the Senate.

Summaries of other featured bills can be found here.

Tenth Circuit: Petitioner Not Eligible for Cancellation of Removal Due to Conviction of Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Rodriguez-Heredia v. Holder, Jr. on Tuesday, May 10, 2011.

The Tenth Circuit denied the petition to review the Board of Immigration Appeals’ (BIA) decision. Petitioner, a citizen of Mexico, petitions for review of two decisions of the BIA. He seeks review of the dismissal of an appeal from a decision by an immigration judge (IJ) denying his request for a change in custody status. That decision was dismissed by the Court as moot because Petitioner was released from detention and removed from the United States on July 30, 2010. Additionally, Petitioner seeks review of a final order of removal issued by the BIA dismissing an appeal from an IJ’s determination that he was not eligible for cancellation of removal due to his conviction of a crime involving moral turpitude. The Court similarly denied this petition because Petitioner’s conviction of identity fraud under Utah law is a crime involving moral turpitude.

Tenth Circuit: Equal Access to Justice Act Requires Parties to Prevail Against the United States to Be Awarded Attorney’s Fees

The Tenth Circuit Court of Appeals issued its opinion in United States v. Poche on Tuesday, May 10, 2011.

The Tenth Circuit reversed the district court’s decision. Petitioner United States appeals the district court’s award of attorney’s fees and costs to Respondents. The United States contends that its sovereign immunity divested the district court of jurisdiction to award fees and costs against the United States, and that, even if the district court had jurisdiction, the amount awarded constitutes an abuse of discretion. The parties agree that the potentially applicable waiver of immunity is found in the Equal Access to Justice Act, which provides: “Except as otherwise specifically provided by statute, a judgment for costs . . . may be awarded to the prevailing party in any civil action brought by or against the United States.” However, in this situation Respondents were not the prevailing party against the United States, and therefore the waiver is not applicable to allow jurisdiction to award attorney’s fees.

Tenth Circuit: Removing Party’s Failure to Attach the Required Papers to a Notice of Removal is Curable Procedural Defect

The Tenth Circuit Court of Appeals issued its opinion in Farmers Ins. Exchange v. Countryman on Tuesday, May 10, 2011.

The Tenth Circuit vacated the district court’s order and remanded for further proceedings. The insurance company Petitioners removed a putative class action from state court to federal district court. However, the district court remanded the action to state court based on a procedural defect in Petitioners’ joint notice of removal, and they now petitioned the Tenth Circuit for leave to appeal the district court’s order of remand. The Court determined that a removing party’s failure to attach the required state court papers to a notice of removal is a mere procedural defect that is curable. “The omission of a summons from [Petitioners’] joint notice of removal was an inadvertent, minor procedural defect that was curable, either before or after expiration of the thirty-day removal period. [Petitioners] supplemented their joint notice of removal to include the summons, and [Respondent] was not prejudiced by the omission. Nor was the district court’s ability to proceed with the case materially impaired.”

Tenth Circuit: Unpublished Opinions, 5/10/11

On Tuesday, May 10, 2011, the Tenth Circuit Court of Appeals issued four unpublished opinion in addition to three published opinions.

Unpublished

Deal v. Cline

United States v. Rayford

Jelani v. Province

United States v. Rayford

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.