August 24, 2019

Archives for January 30, 2012

Colorado Supreme Court: Week of January 29, 2012 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of January 29, 2012.

Tenth Circuit: Stolen Valor Act Is Constitutional; Restricts Only Knowingly False Statements of Fact and Does Not Overreach to Chill Protected Speech

The Tenth Circuit Court of Appeals published its opinion in United States v. Strandlof on Friday, January 27, 2012.

The Tenth Circuit reversed the district court’s decision. Respondent, despite never having served in the armed forces, founded the Colorado Veterans Alliance and frequently told veterans that he graduated from the United States Naval Academy, was a former U.S. Marine Corps Captain, and had been wounded in combat in Iraq. He also bragged of receiving a Purple Heart, which is given to soldiers wounded or killed in action, and he boasted that he had been awarded the Silver Star for gallantry in battle. After discovering the ruse, the government charged Respondent with making false claims about receipt of military decorations or medals in violation of the Stolen Valor Act. Reasoning that false statements are generally protected by the First Amendment, the district court declared the Stolen Valor Act unconstitutional and dismissed the charges against Respondent.

The Court disagreed with the district court’s analysis. “The sole question presented is whether the Stolen Valor Act, a content-based restriction on speech, is facially constitutional.” The Court found that it is and reversed the district court’s decision. “As the Supreme Court has repeatedly asserted, the Constitution does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow ‘breathing space’ for core protected speech—as the Supreme Court calls it, ‘speech that matters.’ . . . [U]nder this legal framework, the Stolen Valor Act survives scrutiny because (1) it restricts only knowingly false statements of fact, and (2) specific characteristics of the statute, including its mens rea requirement, ensure it does not overreach so as to chill protected speech.”

Tenth Circuit: Unpublished Opinions, 1/27/12

On Friday, January 27, 2012, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Unpublished

United States v. Enriquez

Smith v. Comm’r of Internal Revenue

No case summaries are available for unpublished opinions.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

SB 12-022: Requiring Counties to Continue Child Care Assistance after Person Exceeds Income Eligibility for Assistance

On January 11, 2012, Sen. S. Williams and Rep. Massey introduced SB 12-022 – Concerning maintaining child care assistance for working families. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under the current law, when a person receiving child care assistance under the Colorado child care assistance program (CCCAP) is ineligible due to exceeding the income eligibility level adopted by the county department of social services, the county department is strongly encouraged to continue providing child care assistance for 6 months and to work with the person to provide a gradual transition off of the child care assistance. This bill eliminates that permissive 6-month option when a person’s income exceeds the county-adopted eligibility level and requires that the county continue to provide child care assistance to the person for a period of 2 years while the person pays a series of incremental increases in the portion of the parental share of the child care.

The bill requires the state board of human services to adopt rules establishing a formula for the scheduled increases in the parental share based on income and on the cost of child care with the goal of the parent becoming more self-sufficient, maintaining stable employment, and taking on more of the cost of child care over the 2-year period. A family that receives child care assistance during the extended 2-year period is required to report any income changes during the 2-year period and is subject to a redetermination of eligibility after the first 12 months.

Summaries of other featured bills can be found here.

SB 12-020: Granting Immunity for Certain Crimes when Person Reports Emergency Overdose in Good Faith

On January 11, 2012, Sen. Aguilar and Rep. Summers introduced SB 12-020 – Concerning immunity from certain criminal offenses when a person reports in good faith an emergency drug or alcohol overdose event. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A person and one or two other persons acting in concert with the person are immune from arrest and criminal prosecution for any of the following offenses if the offense arises from the same criminal episode or course of events from which an emergency drug or alcohol overdose event arose; the person reports the event in good faith to a law enforcement agency or to the 911 system; the person and, if applicable, one or two other persons remain at the scene of the event until a law enforcement officer or an emergency medical responder arrives; and the person and, if applicable, one or two other persons identify themselves to, and cooperate with, the law enforcement officer or emergency medical responder:

  • Unlawful possession of a controlled substance;
  • Unlawful use of a controlled substance;
  • Unlawful distribution, manufacturing, dispensing, or sale of a controlled substance if the offense is based upon the transfer of a controlled substance from the person to another person for no remuneration;
  • Unlawful possession of 12 ounces or less of marijuana or 3 ounces or less of marijuana concentrate;
  • Open and public display, consumption, or use of less than 2 ounces of marijuana;
  • Transferring or dispensing 2 ounces or less of marijuana from one person to another for no consideration;
  • Unlawful use or possession of synthetic cannabinoids or salvia divinorum;
  • Unlawful distribution, manufacturing, dispensing, sale, or cultivation of synthetic cannabinoids or salvia divinorum if the offense is based upon the transfer of synthetic cannabinoids or salvia divinorum from the person to another person for no consideration;
  • Possession of drug paraphernalia; and
  • Illegal possession or consumption of ethyl alcohol by an underage person.

Assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

SB 12-018: Creating Voluntary Alternative Medical Assistance Program for Medicaid-Eligible Elderly

On January 11, 2012, Sen. Lundberg introduced SB 12-018 – Concerning the development of an alternative medical assistance program for the elderly. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a voluntary alternative medical assistance program for the Medicaid-eligible elderly. An eligible participant agrees to receive an amount equal to 70% of the medical assistance benefits that he or she would have received if the participant were enrolled in the state’s traditional Medicaid program in exchange for 2 features currently not allowed under the traditional Medicaid program:

  • The participant can choose any provider; and
  • The state waives the right to pursue all estate recovery methods from the participant’s family after the participant dies.

The participant’s physician assesses the level of care the participant needs. The department of health care policy and financing then determines the expected costs to provide that level of care if the participant were enrolled in and were receiving services under the traditional Medicaid program and allocates 70% of that amount annually to reimburse providers for the participant’s care. The department issues a debit card to the participant that is funded monthly with one-twelfth of the annual amount so allocated to the participant, which the participant uses to pay for medical services while enrolled in the alternative program. The eligible participant purchases long-term care services, assisted living services, home- and community-based services, home health services, prescribed drugs, or any health or dental care service at rates set by the provider, and the participant agrees to provide all additional resources needed for his or her care beyond the 70% Medicaid benefit amount provided through the program. The participant is responsible for researching and selecting the services.

Each year, the department conducts a redetermination of the participant’s eligibility for services and the participant’s physician reassesses the level of care that the participant needs. The department must seek a federal waiver for the program. Assigned to the Health and Human Services Committee.

Summaries of other featured bills can be found here.

SB 12-014: Conforming Schedule for Disclosure of Campaign Finance Information with Date of Primary Election

On January 11, 2012, Sen. Bacon and Rep. Levy introduced SB 12-014 – Concerning the conformity of the schedule for disclosure of campaign finance information with the date of the primary election. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In conformity with the 2011 change of the primary election date from August to the last Tuesday in June, the schedule under the “Fair Campaign Practices Act” for making campaign finance disclosures in connection with the primary election is changed to the second Monday in May and on specified Mondays thereafter until the primary election. Assigned to the Judiciary Committee.

Since this summary, the Senate passed the bill on its Third Reading and the House Judiciary Committee referred the bill unamended to the House Committee of the Whole.

Summaries of other featured bills can be found here.

SB 12-012: Conforming State Inspections of Automobile Emission Facilities to Federal Law

On January 11, 2012, Sen. S. King and Rep. Miklosi introduced SB 12-012 – Concerning the department of revenue’s audits of automobile emission inspection facilities. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Legislative Audit Committee. The bill implements the recommendations of the legislative audit committee regarding the department of revenue’s audits of facilities that conduct automobile emission inspections. Specifically, federal environmental protection agency rules require such inspections at least twice per year while current state law generally requires them every 90 days; the bill conforms state law with federal law. Current law requires the department to conduct performance audits on each test lane at enhanced inspection centers and equipment audits on each lane at all types of inspection centers; the bill requires such audits to be conducted at least twice per year on each lane at the facilities. Finally, the bill authorizes the department to conduct risk-based audits for stations and facilities employing inspectors or mechanics suspected of violating rules. Assigned to the Transportation Committee.

Since this summary, the Senate Committee on Transportation referred the bill unamended to Appropriations.

Summaries of other featured bills can be found here.