June 24, 2019

Archives for January 20, 2012

SB 12-011: Eliminating Limitation Allowing Only 5 Counties to Participate in Differential Response Pilot Program for Child Abuse or Neglect

On January 11, 2012, Sen. Spence and Rep. Summers introduced SB 12-011 – Concerning the differential response pilot program for child abuse or neglect cases of low or moderate risk. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, only 5 counties may participate in the differential response pilot program for child abuse or neglect cases of low or moderate risk. The bill eliminates this limitation and allows the executive director of the state department of human services to select participating counties. On and after July 1, 2012, the executive director shall consult with the participating county departments before selecting any additional county departments to participate in the pilot program.

Since this summary, the Senate Committee on Health and Human Services referred the bill unamended to Senate Committee of the Whole.

Summaries of other featured bills can be found here.

SB 12-006: Creating Task Force to Review State Regulatory System and Make More Efficient

On January 11, 2012, Sen. Neville and Rep. Holbert introduced SB 12-006 – Concerning the creation of efficiencies in the state regulatory system. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the committee on legal services to appoint a task force (COLS task force) to review the state’s regulatory system and make recommendations related to whether:

  • The current system creates a regulatory advantage to one segment of an industry at the expense of another;
  • The existing availability of cost-benefit analysis needs strengthening in order to produce meaningful measures of adverse impacts on consumers and private industry;
  • The enforcement practices of the current system, if any, create perverse incentives for unreasonably punitive fines and penalties on private parties;
  • Economic conditions merit a downsizing of the regulatory body with resulting reduction of financial compliance costs;
  • A particular regulated industry is regulated in an outmoded form of regulation that is no longer advisable;
  • Currently regulated industries are regulated by other means;
  • Continued regulation of the regulated industry is justified;
  • The current system regulates fewer businesses than it did in a previous state fiscal year; and
  • Compliance costs could be reduced or eliminated at no risk to the public welfare or environment and at no risk of creating or protecting a monopoly.

The COLS task force must report to the committee on legal services by January 1, 2013, and the committee on legal services must then recommend to the general assembly such legislation regarding the findings and recommendations of the COLS task force as may be necessary. The bill also addresses the circumstances under which staff assistance will be available for the COLS task force.

Summaries of other featured bills can be found here.

SB 12-003: Purposes for which Consumer Credit Information Can Be Used by Employers

On January 11, 2012, Sen. Carroll and Rep. Fischer introduced SB 12-003 – Concerning the use of consumer credit information by employers. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the “Employment Opportunity Act,” which specifies the purposes for which consumer credit information (i.e., consumer credit reports and credit scores) can be used by an employer or potential employer. Specifically, the bill:

  • Prohibits an employer’s use of consumer credit information for employment purposes if the information is unrelated to the job;
  • Requires an employer to disclose to an employee or applicant for employment (jointly, “employee”) when the employer uses the employee’s consumer credit information to take adverse action against him or her and the particular credit information upon which the employer relied;
  • Authorizes an employee aggrieved by a violation of the above provisions to bring suit for an injunction, damages, or both; and
  • Requires the department of labor and employment to enforce the laws related to employer use of consumer credit information.

Summaries of other featured bills can be found here.

SB 12-002: Authorizing Civil Unions in Colorado

On January 11, 2012, Sen. Steadman introduced SB 12-002 – Concerning authorization of civil unions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the “Colorado Civil Union Act” to authorize any two unmarried adults, regardless of gender, to enter into a civil union. Parties wanting to enter into a civil union apply to a county clerk and recorder for a civil union license. Certain persons may certify a civil union. After the civil union is certified, the officiant files the civil union certificate with the county clerk and recorder. A priest, minister, rabbi, or other official of a religious institution or denomination or an Indian nation or tribe is not required to certify a civil union in violation of his or her right to free exercise of religion. The criteria for a valid civil union are set forth in the bill.

The executive director of the department of public health and environment and the state registrar of vital statistics shall issue forms necessary to implement the Act. Each county clerk and recorder submits records of registered civil unions to the office of vital statistics. A county clerk and recorder collects a fee for a civil union license, which fee is credited to the vital statistics records cash fund. The state registrar of vital statistics is authorized to set and collect an additional fee for verification of civil unions, which fee is credited to the vital statistics records cash fund. A county clerk and recorder collects a $20 fee to be credited to the Colorado domestic abuse program fund.

The bill lists the legal benefits, protections, and responsibilities that are granted under the law to spouses and states that the same shall apply in like manner to parties to a civil union.

The same processes that are provided in law for dissolution, legal separation, and declaration of invalidity of a marriage apply to dissolution, legal separation, and declaration of invalidity of a civil union. Any person who enters into a civil union in Colorado consents to the jurisdiction of the courts of Colorado for the purpose of any action relating to a civil union even if one or both parties cease to reside in the state. The courts are directed to follow the laws of Colorado in a matter filed in Colorado that is seeking a dissolution, legal separation, or invalidity of a civil union that was entered into in another state. The courts are authorized to collect docket fees for the dissolution of a civil union, legal separation of a civil union, and declaration of invalidity of a civil union.

The Act shall not be construed to create a marriage between the parties to a civil union or alter the public policy of this state that recognizes only the union of one man and one woman as a marriage. Notwithstanding any provision of law to the contrary, the Act shall not be interpreted to require a child placement agency to place a child for adoption with parties to a civil union.

The Act includes a reciprocity and principle of comity section that states that a relationship between persons of the same sex that does not comply with section 31 of article II of the state constitution that is legally entered into in another jurisdiction is deemed in Colorado to be a civil union and that, under principles of comity, a civil union, domestic partnership, or a substantially similar legal relationship that is legally created in another jurisdiction is deemed to be a civil union for purposes of Colorado law.

A severability clause is included in the Act.

The executive director of the department of revenue is authorized to appoint a study commission to investigate and report on what changes in the law could be made to ensure equitable tax treatment and to allow parties to a civil union to file a joint state tax return without violating the federal tax laws. Until a statutory change is enacted to authorize the filing of a joint state tax return by parties to a civil union, the Act shall not be construed to permit the filing of a joint income tax return by the parties to a civil union.

A custodian of records is prohibited from allowing a person, other than the person in interest or an immediate family member of the person in interest, to inspect the application for a civil union license of any person; except that a district court may order the custodian to permit inspection of the license application for a civil union upon a showing of good cause.

A person who has entered into a designated beneficiary agreement under Colorado’s designated beneficiary statute is precluded from entering into a civil union with a different person. If both parties to a designated beneficiary agreement are eligible to enter into a valid civil union and subsequently enter into a civil union, the civil union certificate constitutes a superseding legal document that supersedes and invalidates the prior designated beneficiary agreement.

The bill makes other conforming amendments.

The bill takes effect October 1, 2012; except that the provision relating to the inclusion of a partner in a civil union as a dependent on a health insurance policy takes effect January 1, 2013.

Summaries of other featured bills can be found here.

SB 12-001: Contracting Preferences for Persons that Employ Colorado Residents to Perform Government Contract

On January 11, 2012, Sen. Hudak and Rep. Duran introduced SB 12-001 – Concerning contracting preferences for persons who employ at least a specified percentage of Colorado residents to perform the requirements of a government contract. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

On and after July 1, 2012, if a state agency or governmental body issues an invitation for bids or a request for proposals for a construction contract for a public project or for a services contract that is, in either case, worth more than $1 million, the agency or body must grant a 3% preference to the bidder or offer or if the contractor certifies that at least 90% of the employees who will perform the requirements of the contract are Colorado residents.

An agency or body may not allow any of the preferences to a noncompliant contractor, and the contractor may not use the preference to satisfy a minimum requirement of a contract. A contractor that seeks a preference for a bid or offer must certify its eligibility for the preference to the agency or body that issued the invitation for bids or request for proposals. The agency or body may rely on the certification but may also require the contractor to submit substantiating documentation or other information needed to verify the contractor’s eligibility for the preference.

The executive director of the department of personnel must promulgate rules for the administration of each preference, including processes for a contractor to certify and an agency or body to verify the contractor’s eligibility for the preference.

Summaries of other featured bills can be found here.

The Legal Center and the DBA Young Lawyers Division Team Up for the Colfax Marathon

Did you set a fitness resolution for 2012? Are you a runner, jogger, or walker?

If so, then consider joining other Denver Bar Association Young Lawyers Division members in conjunction with The Legal Center on May 19 and 20 in the marathon, half marathon, Urban 10 miler, 5K, or 3K (walk or run) from City Park in Denver!

Visit www.coloradocolfaxmarathon.org, click on Charity Partners, and find out how you can register for, support The Legal Center, or otherwise share in the spirit of Colorado’s largest charity partnership event.

Over 70 charities are partnering with the Colorado Colfax Marathon, and this year we hope to have extensive involvement from DBA YLD members (by participating, raising dollars in support of The Legal Center, and joining The Legal Center team)! And, if you have already registered, it’s not too late to help out The Legal Center.

Register by January 25 to take advantage of early-bird registration fees; registration is open until May 19.  Contact Matt Larson at mlarson@irelandstapleton.com or Blair Dickhoner at blairdickhoner@gmail.com to find out how you too can complete your personal New Year’s Resolution by participating in one of the Colfax Marathon Events and/or joining a marathon relay team with your fellow DBA YLD members!

Upcoming Solo/Small Firm Monthly Networking Meetings: February 2012

The Solo/Small Firm Section networking meetings are a great opportunity to connect with your peers, as well as a practice management and technology discussion forum. The meetings are open to all CBA members, not just members of the Solo/Small Firm Section, the sponsoring entity. Colorado Springs routinely offers CLE credits, although sometimes there is no formal agenda, and no RSVP is required to attend any of the meetings.  You are encouraged to think about and prepare questions or ideas to present to the group.  Don’t hesitate to e-mail a meeting coordinator to suggest a CLE topic and/or speaker!

        • Colorado Springs
          • February 1 (First Wednesday of every month)
            • Luncheon at 11:30 am, CLE at 11:45
          • Ritz Grill, 15 S. Tejon, Colorado Springs, CO, (719) 635-8484
          • Contact Jim Duve, (719) 578-5800, JCD@DuveLaw.com, or John Holcomb, (719) 548-8968, jholco@gmail.com
        • Downtown Denver
          • February 14 (Second Tuesday of every month)
            • Happy Hour at 5:30 pm
          • Stoney’s Bar and Grill, 1111 Lincoln St., Denver, CO (303) 830-6839
          • Contact Jennifer D. McGinn, (720) 362-3000, Jennifer@mcginnlawoffice.com.
          • There is no parking at the bar but there is free 2-hour parking up one block on Sherman St. and there is a garage directly across the street from the bar on Lincoln St.  There is also plenty of metered parking on Lincoln.
        • Downtown Denver
          • February 2 (First Thursday of every month)
            • Breakfast at 7:30 am
          • Tavern Restaurant inside the Denver Athletic Club, 1325 Glenarm Place, Denver, CO (303) 534-1211 – Reservation under D.A. Bertram
          • Contact Frank P. Slaninger, (303) 617-4446, slaninger@comcast.net.
        • Denver Tech Center Area
          • February 10 (Second Friday of every month)
            • Brown Bag Lunch at noon
          • Law Offices of Julian Izbiky, 7400 E. Caley Ave., Suite 300, Centennial, CO (303) 850-7080
          • Contact Phil Shuey, (303) 680-2595, shuey_p@comcast.net.
          • Exit I-25 and go west on Orchard and turn south on Quebec (or exit I-25 and go west on Arapahoe and turn north on Quebec).  From Quebec, turn east on E. Caley Ave.  The building is on the right, not far from Quebec.
          • Downtown Denver
            • February 2 (First Thursday of every month)
              • Breakfast at 7:30 am
            • Tavern Restaurant inside the Denver Athletic Club, 1325 Glenarm Place, Denver, CO (303) 534-1211 – Reservation under D.A. Bertram
            • Contact Frank P. Slaninger, (303) 617-4446, slaninger@comcast.net.
          • North Metro Area – NEW NETWORKING OPPORTUNITY!

            • February 16 (Third Thursday of every month)
              • Happy Hour at 5:00 pm
            • Doubletree Hotel 8773 Yates Drive, Westminster, CO (303) 427-4000
            • Contact Bill O’Meara, (303) 298-9888, wmpomeara@klaaslaw.com, or Aileen Law, (303) 301-2650, aileen@alawfirmpc.com

        Dates are subject to change; however, they will occur as scheduled unless prior notice has been sent to the Section membership via e-mail.  Please check this website on a regular basis.

Aaron Solomon: First Amendment Retaliation in the Context of an Employment Dispute

Editor’s Note: The Tenth Circuit issued its opinion in Morris v. City of Colorado Springs on January 18, 2012.

In Morris v. City of Colorado Springs (No. 10-1572), the Tenth Circuit, among other things, affirmed the dismissal of the plaintiff’s First Amendment retaliation claim on the pleadings. The plaintiff was a nurse who worked for Colorado Spring’s Memorial Health System, which is run by the city. The plaintiff submitted a “Notice of Claim” to Memorial, alleging that she has been subject to various torts while a member of the heart surgery team. Shortly thereafter, she was reassigned away from the heart team. The plaintiff alleged that this reassignment constituted improper retaliation, and she also brought Title VII claims based on the underlying conduct.

The Tenth Circuit thoroughly reviewed the test for a First Amendment retaliation claim and concluded, like the district court, that the plaintiff “could not show that her notice contained speech on a matter of public concern.” In so doing, it appeared to hold that a communication “framed as lodging a complaint regarding an employment dispute and seeking damages for it” could never rise to the level of a matter of public concern, unless the subject matter fell within a “narrow range”, such as allegations of corruption by city officials, that was “so imbued with the public interest that speech regarding g it will almost always be a matter of public concern.”

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on January 19, 2012.

Colorado Court of Appeals: Announcement Sheet, 1/19/12

On Thursday, the Colorado Court of Appeals issued five published opinions and fifty unpublished opinions.

Published

Roque v. Allstate Ins. Co.

Rea v. Corrs. Corp. of America

People v. Stovall

In re the Parental Responsibilities Concerning T.L.B. and M.A.

Vaccaro v. American Family Ins. Group

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Determination that Mental Retardation Is Not a Fluid Concept is Consistent with Atkins

The Tenth Circuit Court of Appeals published its opinion in Ochoa v. Workman on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision. An Oklahoma state jury found Petitioner guilty of two counts of first degree murder and sentenced him to death. In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals. Relying on Atkins v. Virginia, 536 U.S. 304, 321 (2002), in which the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals, the Oklahoma Court of Criminal Appeals granted Petitioner a post-conviction jury trial to determine whether he was mentally retarded. The jury found Petitioner failed to meet his burden of proving, by a preponderance of the evidence, he was mentally retarded, and the appeals court affirmed. The Tenth Circuit granted Petitioner permission to file a second habeas petition raising his Atkins claims in federal district court. The district court denied the petition on the merits.

Petitioner contends that “Oklahoma law, which focuses on whether a defendant is mentally retarded at the time of trial, instead of whether he was mentally retarded at the time of the commission of the crime, is ‘contrary to, or . . . an unreasonable application of’ Atkins.” The Court rejected this contention. “Oklahoma’s determination that mental retardation is not a fluid concept is entirely consistent with Atkins.” Ochoa further asserts his trial was fundamentally unfair because “(1) the jury was informed he had been convicted of a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he was forced to wear a shock sleeve during trial.” However, the Court held that the district court correctly concluded none of the alleged errors identified by Petitioner entitle him to habeas relief.

Tenth Circuit: Particulars of Prior Conviction Are Relevant and Counsel Admitted in Court that Defendant Had Been Convicted of Burglary of Dwelling

The Tenth Circuit Court of Appeals published its opinion in United States v. Ventura-Perez on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner pleaded guilty to illegal reentry after deportation subsequent to an aggravated-felony conviction. On appeal, he raises two challenges. “First, he contends that the district court miscalculated his offense level under the Sentencing Guidelines. The court increased his offense level by 16 on the ground that his Texas conviction of burglary of a habitation was for ‘burglary of a dwelling’ and therefore a crime of violence.” Second, he contends that when the court imposed its sentence, it improperly refused to consider sentencing disparities created by fast-track programs in other districts.

The Court disagreed with Petitioner’s contentions. The Court held that “even if the Texas offense of burglary of a habitation encompasses more than burglary of a dwelling, the particulars of [Petitioner]’s prior conviction are relevant and his counsel admitted at sentencing in federal court that he had been convicted of burglary of an apartment, which is clearly burglary of a dwelling. . . . On the second contention we follow recent circuit precedent and hold that [Petitioner] cannot complain of sentencing disparities because he did not present to the sentencing court any evidence that he would have been eligible for fast-track treatment in another district.”