May 20, 2019

Archives for April 23, 2012

Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena; Effective in July

The Colorado Supreme Court has amended Rule 17(h) of the Colorado Rules of Criminal Procedure – Failure to Obey a Subpoena. The rule change comes after the Court requested comment last year. The new rule reads:

(h) Failure to obey subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued. Such contempt is indirect contempt within the meaning of C.R.C.P. 107. The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

(2) Trial witness—bench warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court immediately upon apprehension or, if the court is not then in session, as soon as court reconvenes. Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury; or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

This amendment was adopted on April 23, 2012 and is effective July 1, 2012.

Click here to review the red line changes to Rule 17(h), outlined as Rule Change 2012(05).

Colorado Supreme Court: C.R.C.P. 4(d) Does Not Establish Service According to International Agreement as Exclusive Means of Serving Defendant Located in Foreign Country

The Colorado Supreme Court issued its opinion in In re Willhite v. Rodriguez-Cera on April 23, 2012.

Civil Procedure—Service of Process—Hague Service Convention.

The trial court issued an order quashing substituted service in Colorado on the sister of a defendant residing in Mexico. After previously granting substituted service under C.R.C.P. 4(f), the trial court determined that C.R.C.P. 4(d) requires that service on a defendant located in a foreign country be made according to international agreement. Because Mexico and the United States are parties to the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, the trial court concluded that plaintiff must serve defendant Rodriguez-Cera via the Hague Service Convention.

The Supreme Court held that C.R.C.P. 4(d) does not establish service according to international agreement as the exclusive means of serving a defendant located in a foreign country. The Court further held that C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and does not prohibit a plaintiff from serving a defendant within the United States if otherwise authorized. The Court held that substituted service in accordance with C.R.C.P. 4(f) provides a valid alternative to service abroad. Although the Hague Service Convention is implicated whenever state law requires the transmittal of documents abroad to effectuate service, the Court concluded that the transmittal of documents abroad is not necessary to effectuate service under C.R.C.P. 4(f); therefore, the Hague Service Convention was not implicated.

Summary and full case available here.

Colorado Supreme Court: Initial Failure to File Review of PUC Actions in Proper Venue Did Not Deprive Court of Jurisdiction to Grant Venue Transfer

The Colorado Supreme Court issued its opinion in In re Associated Governments of Northwest Colorado v. Colorado Public Utilities Commission on April 23, 2012.

CRS § 40-6-115(5)—“Commenced and Tried”—Remedy for Improper Venue is Transfer to Proper Venue.

The Associated Governments of Northwest Colorado (AGNC) filed a petition for judicial review in Routt County District Court, seeking judicial review of a decision by the Colorado Public Utilities Commission (PUC). Pursuant to CRS § 40-6-115(5), such petitions must be commenced and tried in district court either in the county where the petitioning corporation has its principal office or place of business, or in Denver District Court. In this case, the Routt County District Court found that AGNC’s principal office or place of business was in Garfield County, not Routt County. The court ordered that AGNC be permitted to transfer the case to Garfield County or Denver District Court. AGNC chose Denver District Court.

PUC petitioned the Supreme Court, under C.A.R. 21, for a rule to show cause why the case should not be dismissed rather than transferred. The Court issued the rule to show cause, and now discharged the rule. The Court held that CRS § 40-6-115(5), which enumerates the counties where a petition for review of PUC actions shall be commenced and tried, sets a venue requirement. The requirement is procedural, not substantive. AGNC’s initial failure to file in a proper venue did not deprive the Routt County District Court of jurisdiction to grant a venue transfer motion. Instead, the statute allows the Routt County District Court to transfer this case to the Denver District Court.

Summary and full case available here.

Paper Shredding and Electronics Recycling Day Coming in June

Join the Denver Bar Association for their annual paper shredding and electronic recycling day on June 6, 2012, from 3:30 – 5:30 pm. Dispose of your sensitive client and case information at this free event in the parking lot east of the DBA offices, located at 1900 Grant Street in Denver.

A donation of one food item or $2.00 is requested per box or electronic item. All contributions benefit Metro CareRing, a hunger relief organization that operates one of the largest food pantries in Denver.

There is a limit of 20 boxes (no 3-ring binders) and five electronic items per vehicle. Click here for more information on acceptable items for recycling. Make sure all hard drives are wiped clean before you recycle them.

Click here for more information.

Tenth Circuit: Inmates Lack Cognizable Liberty Interest in Avoiding Conditions of Confinement

The Tenth Circuit Court of Appeals published its opinion in Rezaq v. Nalley on Friday, April 20, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioners are all currently incarcerated in the federal prison system and appeal the district court’s grants of summary judgment in favor of appellee Federal Bureau of Prisons (BOP). Petitioners “contend that they have a liberty interest in avoiding transfer without due process to the Administrative Maximum Prison (ADX) in Florence, Colorado, where they were formerly housed. In separate orders, the district court rejected this argument and found that [Petitioners] lack a cognizable liberty interest in avoiding confinement at ADX. While the BOP agrees with this reasoning, it also contends that all of [Petitioners]’ claims became moot when they were transferred to other prisons.

The Court disagreed with the BOP and found that the “case presents a live controversy in which the court could afford meaningful prospective relief. . . . Yet the inmates lack a cognizable liberty interest in avoiding the conditions of confinement at ADX, so no due process protections were required before they were transferred to that facility.” The Court therefore affirmed the judgment of the district court.

Tenth Circuit: Unpublished Opinions, 4/20/12

On Friday, April 20, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Unpublished

Moles v. Lappin

United States v. Gavilanas-Medrano

United States v. Oakes

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

HB 12-1344: Transfers of Funds to the Capital Construction Fund

On April 4, 2012, Rep. Cheri Gerou and Sen. Mary Hodge introduced HB 12-1344 – Concerning Transfers of Moneys Relating to Capital Construction. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Budget Package Bill.

For the 2011-12 fiscal year, the bill reduces the transfer from the general fund to the capital construction fund from $48,171,749 to $47,671,749 and specifies a new transfer of $500,000 from the general fund exempt account of the general fund to the capital construction fund.

For the 2012-13 fiscal year, the bill transfers $59,919,309 from the general fund to the capital construction fund and $500,000 from the general fund exempt account of the general fund to the capital construction fund. The bill passed 2nd Reading on April 12 and is now scheduled for 3rd Reading on Monday, April 16.

Since this summary, the bill passed out of the House, was referred to the Senate Appropriations Committee, where it was unamended, and passed out of the Senate. The bill now awaits signature and is on its way to the Governor’s desk.

Summaries of other featured bills can be found here.

HB 12-1342: Creation of the Work Therapy Program for Persons Receiving Services from the Colorado Mental Health Institute

On April 4, 2012, Rep. Claire Levy and Sen. Mary Hodge introduced HB 12-1342 – Concerning a Work Therapy Program in the Department of Human Services, and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Budget Package Bill.

The bill creates the work therapy program to provide training and employment opportunities for persons at certain facilities operated by the department of human services. The bill establishes a fund to receive payments under the program. The bill passed 2nd Reading on April 12 and is now scheduled for 3rd Reading on Monday, April 16.

Since this summary, the bill passed a Third Reading in the House, went to the Senate Appropriations Committee, where it was not amended, then passed three readings in the Senate. It is now ready to be sent to the Governor’s desk for signature.

Summaries of other featured bills can be found here.

HB 12-1340: Reduction in the Rate Paid to Skilled Nursing Facilities from the General Fund for Medicaid Per Diem Rates

On April 4, 2012, Rep. Jon Becker and Sen. Kent Lambert introduced HB 12-1340 – Concerning a Reduction in the General Fund Portion of the Per Diem Rates Paid to Nursing Facilities, and, In Connection Therewith, Reducing an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Budget Package Bill.

The bill reduces the general fund portion of the per diem rate paid to nursing facilities commencing in the 2012-13 fiscal year and each fiscal year thereafter. The bill passed out of the House on April 12 and is assigned to the Appropriations Committee; the bill is listed on the Appropriations calendar for Tuesday, April 17 at 7:30 a.m.

Since this summary, the bill passed a Special Order Second Reading with amendments.

Summaries of other featured bills can be found here.

HB 12-1338: Requiring Transfers from General Fund to State Education Fund

On April 4, 2012, Rep. Cheri Gerou and Sen. Mary Hodge introduced HB 12-1338 – Concerning the Transfer of General Fund Surplus Moneys to the State Education Fund at the End of Certain Fiscal Years. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Budget Package Bill.

On the date on which the state controller publishes the comprehensive annual financial report of the state for the fiscal year 2011-12, the state treasurer is required to transfer to the state education fund $59 million from the general fund surplus for the fiscal year 2011-12.

On the date on which the state controller publishes the comprehensive annual financial report of the state for the fiscal year 2012-13, the state treasurer is required to transfer to the state education fund the entire amount of the general fund surplus for the fiscal year 2012-13. The bill passed out of the House on April 12 and is assigned to the Appropriations Committee; the bill is listed on the Appropriations calendar for Tuesday, April 17 at 7:30 a.m.

Since this summary, the bill passed a Special Order Second Reading with amendments.

Summaries of other featured bills can be found here.