August 26, 2019

Archives for April 3, 2012

New Bill Signed Creating Exception to Hearsay Rule; Allows Testimony from Persons with Developmental Disabilities

On Tuesday, April 3, 2012, Governor John Hickenlooper signed HB 12-1085 into law, which creates an exception to the hearsay rule and allows testimony from persons with developmental disabilities in certain circumstances.

An out-of-court statement made by a person with a developmental disability that is not otherwise admissible as an exception to hearsay is admissible in any criminal or delinquency proceeding in which the person is alleged to have been a victim and the statement describes all or part of any of the following offenses:

  1. Sexual assault;
  2. Unlawful sexual contact;
  3. Sexual assault on a child;
  4. Sexual assault on a child by one in a position of trust;
  5. Internet exploitation of a child;
  6. Sexual assault on a client by a psychotherapist;
  7. Incest;
  8. Aggravated incest;
  9. Trafficking in children;
  10. Sexual exploitation of a child;
  11. Indecent exposure; or
  12. Criminal attempt to commit any of these acts.

Click here to read the full bill, including further limiting factors for this exception to the hearsay rule.

Additionally, Governor Hickenlooper also signed the following bills into law on Monday:

  • HB 12-1065Deadline Advanced Practice Nurse Retain Prescriptive Authority
    • Concerning the Deadline for an Advanced Practice Nurse Who was Granted Prescriptive Authority Prior to July 1, 2012, to develop an Articulated Plan for Purposes of Retaining Prescriptive Authority.
  • HB 12-1061The Skills for Jobs Act
    • Concerning Requiring a Report of the Correlation between the Educational Credentials Issued and the State’s Workforce Needs

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

Full Accountability (Part 2)

Full accountability is one of those new thoughts that make our brains hurt because they travel over previously unused neural pathways. New thoughts like that are uncomfortable and awkward, but we get used to them with practice. Besides, to move in the direction of our goals and dreams, we don’t have to win a debate with our old way of thinking. We just need to be willing to move ourselves ahead by trying out new ways of thinking, and full accountability is one of them.

Then why wouldn’t we do that?

Well, for one thing, we all know that there are true victims in life, and we can set that up as an excuse. But we’re not talking about those kinds of victims here. We’re talking about you and me, wanting to make some changes. If we use the “I’m not in control of everything” argument to justify our own inaction, then it easily becomes one big all-powerful excuse to justify all the rest of our other excuses – the justification of all justifications for self-imposed victimhood. No thanks. Been there, done that. Time for something new.

And for another thing, once we start practicing full accountability, we can’t get away with squat. We used to be able to go mindlessly along, creating lives we didn’t want and blaming Fate or dumb luck or other people or whatever. No more. Now, when we ask why our dreams and big ideas and plans aren’t happening, the finger points back at us, and the only issue is whether we’d like the long or short version.

The short one will do, if we’re willing to act on it.

Besides, if we accept that we created the things in our lives that we now want to change, that means we have the power to create new things to replace them. That’s what we get when we embrace the principle of full accountability:  we get the power to change. We’re not victims anymore. We can do this.

You hear people talk about not giving away our power. To think and act contrary to the principle of full accountability is to give away our power to change. That kind of victimhood is voluntary. Most of us learned long ago to never volunteer. How come we volunteer so eagerly for that?

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently reopened his law practice, while continuing to write (screenplays and nonfiction) and lead workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. His next workshop, Life in the Gap: Getting Over Your Inspiration Hangover and Translating Inspiration into Action, will be held April 10, 2012. Click here for registration information.

Tenth Circuit: Panel Rehearing Granted with Amended Opinion; En Banc Suggestion Denied

The Tenth Circuit Court of Appeals revised its opinion in Toevs v. Reid on Monday, April 2, 2012.

The Tenth Circuit granted panel rehearing on the case, which was originally decided on June 20, 2011, and directed the clerk to issue an amended opinion. The en banc suggestion was denied.

Tenth Circuit: Unpublished Opinions, 4/2/12

On Monday, April 2, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Unpublished

Craft v. Jones

United States v. Torres-Laranega

Freisinger v. Keith

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

SB 12-163: Reducing Penalties for Possession of Small Amounts of Certain Controlled Substances

On March 20, 2012, Sen. Shawn Mitchell and Rep. Don Beezley introduced SB 12-163 – Concerning Changes to Improve Outcomes for Persons Convicted of Possession of Certain Controlled Substances Crimes and, in Connection Therewith, Establishing a Misdemeanor Penalty for Possession of Controlled Substances, Requiring a Post-Enactment Review of the Implementation of this Act, and Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill reduces the penalty for possession of 4 grams or less of certain drugs from a class 6 felony to a class 1 misdemeanor and reduces the penalty for possession of more than 4 grams of those certain drugs from a class 4 felony to a class 6 felony. The bill appropriates the savings from the reduction in the criminal penalties to substance abuse treatment programs. The department of human services will develop a trauma-informed substance abuse treatment and best practices training program. The bill requires a post-enactment review after two years that addresses the impact of the bill on jails and the amount of funding for jail-based treatment.

The bill is scheduled on the Judiciary Committee calendar for Wednesday, March 28 at 1:30 p.m.

Since this summary, the bill was amended in the Senate Judiciary Committee and referred to the Finance Committee.

Summaries of other featured bills can be found here.

SB 12-162: Verification and Certification of Remediation for Property Formerly Used as Meth Lab

On March 19, 2012, Sen. Lois Tochtrop introduced SB 12-162 – Concerning Verification of Remediation Performed on Property Contaminated by an Illegal Drug Laboratory. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a verification process for remediation of properties contaminated by illegal drug laboratories. A local governing body:

  • Reviews documentation of a property owner’s remediation;
  • Retests a property to confirm that the property owner’s remediation complied with the clean-up standards established by the state board of health;
  • Issues a certificate of compliance to a property owner whose remediation meets the clean-up standards; and
  • Files an action to abate a public nuisance against a property that the property owner fails to remediate upon receiving notice that prior remediation efforts did not meet the clean-up standards.

The bill imposes a surcharge on persons convicted of methamphetamine-related offenses to fund implementation of the verification process. The bill creates the methamphetamine laboratory clean-up cash fund.

The bill is scheduled on the Senate Business, Labor, and Technology Committee calendar for Monday, March 26 at 1:30 p.m.

Since this summary, the Business, Labor, and Technology Committee heard witness testimony and had committee discussion only.

Summaries of other featured bills can be found here.

SB 12-159: Evaluations of Children Receiving Home and Community Based Services for Autism and Annual Review

On March 19, 2012, Sen. Evie Hudak and Rep. Jim Kerr introduced SB 12-159 – Concerning the Evaluation of Home- and Community-Based Services for Children with Autism Under the Medicaid Waiver Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that evaluation of children receiving long-term care services and supports through the Medicaid autism waiver program must occur at the time the child begins receiving services and when services terminate, as well as regularly during the course of services. The evaluations must include norm-referenced and standardized assessment of the child’s expressive and receptive communication, the child’s adaptive skills, including self-help skills, and the child’s maladaptive behavior, including self-injurious and aggressive behavior.

The department of health care policy and financing shall annually review the balance in the Colorado autism treatment fund to determine whether additional eligible children may receive services and supports under the program.

As part of its regular review of Medicaid waivers, the department shall review the waiver to determine if the program eligibility criteria are sufficient to ensure that services and supports under the program are being directed toward children with significant intellectual or adaptive impairment in addition to a diagnosis of autism.

The department shall conduct an evaluation of the program and the children served through the program that must include information about the improvement in communication and adaptive behavior of children receiving services and supports. The department may contract with an independent program evaluator to review individual treatment evaluations.

The bill clarifies that moneys in the fund may be used for the evaluation of children receiving services through the program, as well as for the evaluation of the program.

The bill is scheduled in the Health And Human Services Committee on April 4 Upon Adjournment.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Bail Bondsman Properly Denied Renewal of License After He Breached Fiduciary Duty to Person Who Deposited Money for Bond

The Colorado Court of Appeals issued its opinion in Colorado Division of Insurance v. Trujillo on March 29, 2012.

Fiduciary Duty—Bail Bonding Agent—License—Bond Premium.

In this case concerning the fiduciary duties owed by a bail bonding agent to his client, respondent Milton Michael Trujillo appealed the final order of petitioner, the Colorado Division of Insurance (Division), affirming the initial decision of the agency’s administrative law judge (ALJ) to revoke and deny his application for renewal of his bail bonding agent and insurance producer licenses. The order was affirmed.

In December 2004, Connie Espinoza gave Trujillo, a licensed bail bonding agent and insurance producer, $3,500 in cash to post bond for her son. Trujillo was unable to post bond for Espinoza’s son. Rather, he gave Connie Cordova, an acquaintance of Espinoza’s son, $2,360 (the $3,500 less $1,140 used to post a bond for Cordova’s friend), claiming that Cordova was the actual owner of the money. Espinoza did not consent to this transaction.

Trujillo contended that the Division erred in denying renewal of his insurance producer and bail bonding agent licenses because the agency misinterpreted CRS §10-2-704 when it determined that he owed a fiduciary duty to Espinoza and should not have returned the bond premium to Cordova. Ted Espinoza is the “insured” under CRS §10-2-704(1)(a), because Trujillo undisputedly received the $3,500 to procure for him a surety bond. Therefore, the $3,500 premium belonged to Connie Espinoza as agent for her son Ted, and it became an unearned premium when Trujillo was unable to post a bond. In the absence of an express agreement, a fiduciary relationship is established between a bail bonding agent and an insured or the insured’s agent when the bonding agent receives a bond premium therefrom, regardless of ownership of the premium. Here, once it was clear that the premium was unearned, Trujillo had a statutory obligation to treat it in a fiduciary capacity and return it to Connie Espinoza. Therefore, the Division’s ultimate finding that Trujillo had a fiduciary duty to Espinoza and breached that duty in failing to return the money to her was reasonable, was supported by substantial evidence, and was not an abuse of discretion.

Summary and full case available here.

Colorado Court of Appeals: Municipal Ordinances of Home-Rule City Supersede State Law in Campaign Practice Violation Case; State Has No Subject Matter Jurisdiction to Hear Case

The Colorado Court of Appeals issued its opinion in In re the Complaint Filed by the City of Colorado Springs, and Concerning Colorado Ethics Watch on March 29, 2012.

Campaign Finance Disclosure Requirements—Home-Rule Municipalities—Jurisdiction.

Colorado Ethics Watch (CEW) sent a letter to the Mayor and Vice Mayor of the City of Colorado Springs (City), alleging that a slate of City Council candidates had violated campaign finance disclosure requirements set forth in part 2 of the elections chapter (campaign practices ordinance) of the City’s Municipal Code (City Code). CEW requested that the City Attorney investigate allegations that the candidates failed to register individual candidate committees and to file campaign finance disclosure reports.

The Mayor forwarded the complaint to the Secretary of State’s office, requesting it investigate. The Secretary of State forwarded the complaint to the Office of Administrative Courts for assignment to an administrative law judge (ALJ), noting that the City would be the complainant.

The ALJ sua sponte issued an order addressing subject matter jurisdiction, noting that the City is a home-rule municipality that may legislate as to matters of local concern. He concluded that the City’s campaign practices ordinance regulates campaign registration and disclosure practices and provides a process for local investigation and prosecution of alleged violations, and that these provisions superseded state law provisions. The ALJ dismissed for lack of subject matter jurisdiction.

On appeal, the City argued that its campaign practices ordinance addressed only knowing violations, and that non-knowing violations may be referred to the state for investigation under the Fair Campaign Practices Act (FCPA). The Court of Appeals disagreed and affirmed the decision of the ALJ.

The Court looked to section 6 of Article XX of the Colorado Constitution, which provides, in part, that home-rule municipalities have the “power to legislate upon, provide, regulate, conduct and control . . . [a]ll matters pertaining to municipal elections in such city or town . . . including . . . securing the purity of elections.” The FCPA provides that “[t]he requirements of article XXVIII of the state constitution and of this article shall not apply to . . . home rule municipalities that have adopted charters, ordinances, or resolutions that address the matters covered by article XXVIII and [the FCPA].” The Court held that the City fell within this exclusion because its campaign practices ordinance covered matters addressed by the FCPA. Therefore, the ALJ’s ruling on jurisdiction was correct. The Court also found that (1) the Secretary of State has adopted a rule recognizing the exclusion from state disclosure requirements for home-rule municipalities that have legislated on the same subject matter; (2) the Attorney General has issued an opinion concluding that article XXVIII does not apply to home-rule municipalities that have enacted provisions addressing the same subject matter; and (3) the Colorado Supreme Court and divisions of the Court of Appeals previously have held that municipal elections are a matter of local concern. Finally, the Court rejected the City’s assertion that the campaign practices ordinance applies only to knowing violations and that CEW’s complaint did not allege a knowing violation. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Summary Judgment in Favor of Insurers Appropriate in Breach of Contract Action

The Colorado Court of Appeals issued its opinion in Figuli v. State Farm Mutual Fire & Casualty on March 29, 2012.

Insurance—Injuries—Sewage—Absolute Pollution Exclusion Clause.

In this action concerning insurance coverage, plaintiffs Shadi Figuli, Joshua Figuli, and Jean Chu appealed the district court’s summary judgment in favor of defendant State Farm Mutual Fire and Casualty (State Farm). The judgment was affirmed.

In 2004, the Figulis became ill while living in a rental property owned by Chu. The property was covered by a rental dwelling policy with State Farm, and Chu also had a personal liability umbrella policy. After testing on the property revealed the presence of toxic mold and raw sewage, the Figulis filed suit against Chu for their injuries.

Plaintiffs argued that the district court erred in concluding that raw sewage is a pollutant excluded from coverage by State Farm policies’ absolute pollution exclusion (APE clause) and granting summary judgment in favor of State Farm. Here, the APE clause is unambiguous when applied to raw sewage. The policy defines “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including . . . waste.” “Waste” is defined in the policy as including, but not limited to, materials to be recycled, reconditioned, or reclaimed. The plain meaning of the term “sewage” is waste, and waste clearly is included in the definition of “pollutants” under the policy. Therefore, the district court correctly held that State Farm had no duty to defend or indemnify Chu and properly granted summary judgment in State Farm’s favor.

Summary and full case available here.

Colorado Court of Appeals: Defendant Was Not Required to Register as Sex Offender and Could Therefore Not Be Charged for Failing to Do So

The Colorado Court of Appeals issued its opinion in People v. Brooks on March 29, 2012.

Indecent With a Child by Exposure—Failing to Register as a Sex Offender—Out of State.

Defendant Lorenzo Brooks appealed the judgment of conviction following a bench trial in which the court found him guilty of failure to register as a sex offender. The judgment was reversed.

In 1994, defendant pleaded guilty in Harris County, Texas, to indecency with a child by exposure. After sentencing in the Texas case, defendant was transferred to El Paso County, Colorado, where he pleaded guilty to aggravated robbery. He was sentenced to nineteen years in the Colorado Department of Corrections (DOC). When defendant was paroled in Colorado, he was advised that he must register as a sex offender under the Colorado Sex Offender Registration Act. Defendant subsequently was charged with two felony counts of failing to register as a sex offender after it was determined that he no longer resided at the registered address.

Defendant contended that he was not required to register as a sex offender and, therefore, he could not be convicted of failing to register. Defendant was convicted in Texas of indecency with a child by exposure. The crime of indecent exposure in Colorado requires that the crime be “under circumstances in which such conduct is likely to cause affront or alarm to another person.” Because the crime of indecent exposure contains this element, and the Texas statute for indecency with a child lacks this element, defendant was not subject to registration in Colorado. The judgment of conviction was reversed.

Summary and full case available here.

Colorado Court of Appeals: Presentence Confinement Statute Interpreted Too Restrictively; Defendant Should Have Been Given Some Credit for Time Spent in Colorado Mental Health Institute

The Colorado Court of Appeals issued its opinion in People v. Torrez on March 29, 2012.

Presentence Confinement Credit—Jurisdictions.

Defendant appealed the Jefferson County District Court’s order granting her eighty-six days of presentence confinement credit (PSCC) for the time she was physically confined in Jefferson County before being sentenced and denying her PSCC for the 1,493 days she was confined in Denver and at the Colorado Mental Health Institute at Pueblo (CMHIP). The order was affirmed in part and reversed in part, and the case was remanded.

Defendant was confined in Denver on separate Denver and Jefferson County arrest warrants. She subsequently was ordered to be confined at CMHIP by both Denver and Jefferson County. After a Denver jury found her not guilty by reason of insanity (NGRI), Denver again ordered her to be confined at CMHIP.

Defendant contended that the Jefferson County District Court erred in granting her only eighty-six days of PSCC, representing the time she physically was confined in Jefferson County. Defendants are not entitled to PSCC for time they are confined in jurisdictions other than where they are seeking PSCC, if there was a separate and independent criminal proceeding that was causing their confinement in the other jurisdiction. Therefore, for the period defendant was confined before the Denver NGRI verdict, the Jefferson County District Court properly granted defendant PSCC only for the time she physically was confined in Jefferson County. However, once the Denver criminal proceeding against defendant ended, defendant no longer was barred from receiving PSCC on the Jefferson County sentence for the time she continued to be confined at CMHIP, because there was no longer a separate and independent criminal proceeding pending against her. Accordingly, the Jefferson County District Court erred in denying defendant PSCC for the period of confinement between the Denver NGRI verdict and imposition of the Jefferson County sentence. The case was remanded to the district court with instructions to grant that PSCC. The order was affirmed in all other respects.

Summary and full case available here.