August 20, 2019

Archives for January 22, 2013

New Tax Law for a New Year

JenniferMSpitzBy Jennifer M. Spitz

On January 2, 2013, the President signed into law the American Taxpayer Relief Act of 2012 (ATRA). ATRA extends much of the prior tax laws, by extending tax acts passed in 2001 and 2010. ATRA also makes some changes to prior law. Much of ATRA is permanent, meaning it is not scheduled to expire. Select highlights of ATRA of particular interest to trust and estate attorneys, including changes to some key exemptions and rates, are summarized below.

2013 Tax Act 01 18 13

Portability: The 2010 tax act included a provision allowing a surviving spouse to utilize the unused estate tax exclusion amount of the first spouse to die, if a timely election is made. This concept is referred to as portability. ATRA extends portability. The IRS has issued Treasury Regulations clarifying some aspects of portability. Also ATRA included a technical correction to make clear there is no “privity” requirement.

GST Tax: ATRA extends the generation-skipping transfer tax benefits that have been in place since 2001, such as qualified severances, automatic allocation of GST exemption to certain lifetime transfers, and 9100 relief.

Clawback: During 2011 and 2012 there was much discussion about whether there would be a “clawback” if the gift and estate tax exclusion amount dropped from the $5,120,000 amount applicable in 2012 to a lower amount in 2013. Since the exclusion amount did not drop, the clawback issue is moot.

IRAs:  ATRA reinstates the ability for certain individuals to make tax-free distributions to charity from individual retirement plans. ATRA includes special transition rules in light of the fact that this benefit was not extended until after December 31, 2012. This provision of ATRA is not permanent. It applies to years 2012 and 2013, and then expires.

Colorado Estate Tax: With the passage of ATRA, the state death tax credit is still repealed. C.R.S. § 39-23.5-103(1) imposes a Colorado estate tax equal to the state death tax credit. Since there is no credit, Colorado continues to impose no estate tax. However, about half of the states do impose estate tax, and many of those states have an estate tax exclusion amount much lower than the federal level.

Jennifer M. Spitz practices law in Longmont, Colorado with Stover & Spitz LLC, a Tier 1 Trust and Estates law firm, as recognized by U.S. News Best Law Firms. Jennifer primarily practices in the areas of estate planning, probate and trust administration. She is a graduate of the University of Colorado School of Law. She is a Fellow of the American College of Trust and Estate Council (ACTEC) and is listed in The Best Lawyers in America® and Colorado Super Lawyers.  Jennifer is very active in the Trust and Estate Section of the Colorado Bar Association, including recently serving as the Section’s Chair.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Hobbs Act Applied to Robbery of Drug Dealer; Co-Conspirator Statements Properly Admitted

The Tenth Circuit published its opinion in United States v. Rutland on Tuesday, January 22, 2013.

Terrence Rutland was convicted in federal district court on robbery, narcotics, and firearm charges. Rutland was prosecuted under the Hobbs Act, 18 U.S.C. § 1951, which makes it a federal crime to interfere with interstate commerce by force or threats. Rutland contended his federal conviction for robbery and use of a firearm during a violent felony were invalid, arguing that the robbery of a drug dealer at his home did not interfere with interstate commerce because the dealer was not engaged in a business.

The Tenth Circuit joined the majority of circuits in holding that a robbery of a criminal organization, even if an individual drug dealer, is a robbery of a business for purposes of the Hobbs Act. “To satisfy the Hobbs Act’s jurisdictional requirement, evidence must be adduced showing the illegal drug operation was engaged, either directly or indirectly, in interstate commerce and that the robbery depleted the assets of the drug operation.” The government met those requirements by showing the drug dealer got his drugs from another state and the robbery deprived him of drugs and drug proceeds. The court also rejected Rutland’s argument that the drug dealer was not robbed in his capacity of drug dealer so the Hobbs Act should not apply.

Rutland also argued the district court erred by admitting numerous out-of-court statements as coconspirator statements when there was insufficient evidence of a robbery conspiracy. Rutland did not contest the existence of the drug conspiracy. The Tenth Circuit found that the two conspiracies were closely related and, after applying the four-part Ailsworth test, concluded a robbery conspiracy did exist. The court evaluated the coconspirators’ statements and concluded the out-of-court statements were admissible. As to many of the statements, the declarants testified at trial and were subject to cross-examination so any error admitting them was harmless. The court affirmed Rutland’s convictions.

Tenth Circuit: Unpublished Opinions, 1/22/13

On Tuesday, January 22, 2013, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Archuleta v. Nanney

United States v. Johnson

Cosby v. Astrue

Mukhia v. Holder

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

Colorado Court of Appeals: Personal Injury Plaintiff Should Receive Statutory Interest on Damages, Not Market Rate Interest

The Colorado Court of Appeals issued its opinion in Averyt v. Wal-Mart Stores, Inc. on Thursday, January 17, 2013.

Post-Judgment Interest Rate Personal Injury Tort Case.

In general, if a plaintiff obtains a money judgment in a personal injury tort case, CRS § 13-21-101(1) requires the trial court to add post-judgment interest to the amount of damages the jury awards, at the rate of 9%, compounded annually. However, if the judgment debtor appeals the money judgment, then the court must calculate post-judgment interest at a market-determined rate. This appeal raised the question of whether the exception applies when the judgment creditor—here, the plaintiff—appeals after (1) the jury has awarded the plaintiff money damages; (2) the trial court enters judgment in plaintiff’s favor; (3) the judgment debtor—here, the defendant—files a motion for a new trial; and (4) the trial court grants the defendant’s motion for a new trial and vacates the judgment. In this case, the applicability of the exception is particularly meaningful because the post-judgment interest rate established by the general rule is much higher than the market determined rate (9% versus 3%). The Court of Appeals held that the exception did not apply and affirmed the trial court’s judgment.

Holly Averyt drove a commercial truck. She slipped and fell on grease-coated ice on a loading dock when she was making a delivery to Wal-Mart Stores, Inc. (Wal-Mart). The fall ruptured a disc in her spine and injured her shoulder and neck, rendering her unable to do her job and unable to control her bladder or bowel.

Averyt sued Wal-Mart for negligence and premises liability. The jury returned a verdict in her favor, assessing total damages at $15 million. In December 2010, the trial court entered judgment and reduced the damages to $9,866,250 to reflect the statutory cap on noneconomic damages. Wal-Mart moved for a new trial based on an evidentiary issue, and the motion was granted. Averyt sought relief in the Supreme Court under CAR 21. The Supreme Court reversed the trial court’s order granting Wal-Mart a new trial.

In February 2012, the trial court entered judgment for the driver in the amount of $9,866,250, pre-judgment interest in the amount of $2,794,788.47, and costs of roughly $45,000. It also awarded post-judgment interest at the statutory rate of 9%, accruing from December 1, 2010 and compounding annually until the judgment was satisfied. Wal-Mart appealed.

Wal-Mart argued that the premises liability verdict was not supported by sufficient evidence. However, the Court found sufficient facts in the record to support the verdict.

Wal-Mart also argued that the market-based interest rate of 3% should apply. It contended that the trial court should have treated Averyt’s CAR 21 original proceeding after the trial court vacated the judgment (an appeal by the judgment creditor) like an appeal by a judgment debtor for the purposes of determining the rate of post-judgment interest. The Court disagreed. CRS § 13-21-101(1) refers only to judgment debtors, not to judgment creditors. The 9% rate was affirmed.

Averyt contended that she should be awarded attorney fees because Wal-Mart’s appeal was frivolous. The Court disagreed. The appeal was not frivolous because there was a basis for Wal-Mart’s argument.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Properly Denied Defendant’s Challenges for Cause of Prospective Jurors

The Colorado Court of Appeals issued its opinion in People v. Fleischacker on Thursday, January 17, 2013.

Sexual Assault on a Child—Challenge for Cause—CRS § 16-10-103(1)(b)—Double Jeopardy.

Defendant appealed the judgment of conviction entered against him after a jury found him guilty of sexual assault on a child, position of trust; sexual assault on a child, pattern of abuse; and sexual assault on a child. The judgment was affirmed.

Defendant contended that the trial court erred in denying his challenge for cause against Juror G. Juror G. told the court that he had worked in law enforcement for four-and-a-half years; that his daughter was a paralegal at the district attorney’s office; that his son worked for the Denver sheriff’s office; and that his son-in-law was a parole officer. He also stated that the prosecuting attorney had attended his daughter’s wedding the previous month. CRS § 16-10-103(1)(b) does not require the disqualification of a prospective juror related within the third-degree to a paralegal working in a district attorney’s office. Because Juror G.’s daughter was not an attorney, the trial court did not err in denying defendant’s challenge for cause under CRS §16-10-103(1)(b). Further, the trial court did not abuse its discretion in finding that Juror G. was not actually biased because of his numerous connections to law enforcement based on Juror G’s assurances to the court that he could hold the prosecution to its burden of proof and that he would be impartial to both sides.

Defendant also contended that the trial court erred in denying his challenge for cause against Juror J. Juror J.’s daughter was sexually assaulted by his brother-in-law when she was approximately 15 years old. Based on Juror J’s assurances that he could be fair in this particular case, could listen to the court’s instructions, and could hold the prosecution to its burden of proof, the trial court did not abuse its discretion in denying defendant’s challenge for cause to Juror J.

Defendant also argued that his convictions for Counts 2 and 3 violated his right to be free from double jeopardy because they were predicated on the same factual basis. The evidence demonstrated that defendant was not convicted twice for the same offense because there were factually distinct incidents of sexual assault. The predicate act for Count 2 was defendant touching the victim’s buttocks with his hand, and the predicate act for Count 3 was touching the victim’s buttocks with defendant’s lap. Any clerical error on the verdict forms did not undermine the fundamental fairness of the trial. Accordingly, the convictions for those counts did not violate defendant’s right to be free from double jeopardy.

Summary and full case available here.

Colorado Court of Appeals: Prosecution Not Required to Prove that Defendant’s Passengers Were in U.S. Illegally but Only Had to Prove Defendant’s Intent

The Colorado Court of Appeals issued its opinion in People v. Fuentes-Espinoza on Thursday, January 17, 2013.

Human Smuggling—Federal Immigration Laws—Intent—Evidence—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered against him after being found guilty of transporting seven passengers in violation of Colorado’s human smuggling statute, CRS § 18-13-128. The judgment was affirmed.

Defendant argued that Colorado’s human smuggling statute is preempted by federal law. However, the Court of Appeals would not consider the unpreserved constitutional attack on the statute in this case involving substantive preemption.

Defendant argued that Colorado’s human smuggling statute requires the prosecution to prove that the person to be transported violated federal immigration laws. Here, none of the alleged passengers was available to testify at trial, and the prosecution did not establish whether any of them was illegally present in the United States. However, the prosecution must prove only that the defendant had “the purpose of assisting another personto enter, remain in, or travel through the United States or the state of Colorado in violation of immigration laws.” Because the statute’s focus is on the defendant’s intent, the prosecution is not required to prove that the defendant’s passenger or intended passenger was illegally present in the United States or Colorado, in violation of immigration laws.

Defendant contended that the evidence was insufficient to support his convictions because it did not establish that he transported any of the persons named in the complaint. Defendant and the seven alleged passengers were taken into custody outside a gas station and convenience store. There was sufficient evidence that the seven persons named in the complaint were traveling together in defendant’s van, which supported defendant’s conviction.

Defendant also contended that the trial court erred by allowing the arresting officer to testify that, when the seventh alleged passenger approached, the officer “found out that he was a passenger.” There was no reasonable probability that defendant was prejudiced by the admission of the officer’s statement, because there was sufficient evidence to support defendant’s convictions as to the seventh passenger. Therefore, any error was harmless.

Defendant also contended that reversal was required because the prosecutor committed misconduct in closing argument by suggesting that defendant lied to police. Although the prosecutor used the word “lie” in his closing argument, he was characterizing defendant’s contradictory statements. Thus, any such error was harmless.

Summary and full case available here.

Colorado Court of Appeals: Despite Man-Made Diversion, Hazard of Creek Flood is Inherently Natural and Therefore Mitigation by Developers Necessary

The Colorado Court of Appeals issued its opinion in Alpenhof, LLC v. City of Ouray on Thursday, January 17, 2013.

Flooding Risk as Part of Zoning Code.

Plaintiff Alpenhof, LLC raised an unresolved question in Colorado: whether flooding risk from a diverted natural waterway channel involves either a “geologic condition” or a “natural hazard” within the meaning of a zoning code. The Court of Appeals concluded that it does and affirmed the trial court’s order.

Skyrocket Creek basin “is characterized by steep slopes averaging approximately 80% [in grade],” descending from an elevation of 10,400 feet to the City of Ouray (City) approximately 2,800 feet below. In 1929, to protect against historically severe flooding from cloudbursts and spring runoff, the City diverted the creek. It had previously drained south of what is now Alpenhof’s property. Since the diversion, it has flowed north of Alpenhof’s property.

In 1997, the city approved subdivision of most of the property as the Ouray Vista Subdivision. It is located in the alluvial fan of the creek. Parcel C, adjacent to the north diversionary channel, was not subdivided, but was marked on the plat for future possible development.

In January 2011, Alpenhof submitted the preliminary plat application to subdivide Parcel C. The Ouray Planning Commission conditionally approved it, provided that Alpenhof would mitigate potential damage from future floodwater and debris. Alpenhof requested approval by the City Council without the mitigation requirements. The City Council determined that mitigation could be required under § 7-7-D-10 of the Ouray City Code, titled “Natural Hazard Mitigation,” and the “broad discretion” granted by the note on the plat stating the parcel “may not be developed in any fashion until further approval” by the City. The application was denied for insufficient mitigation.

Alpenhof petitioned the district court for relief under CRCP 106(a)(4). The district court denied the claim and certified its order under CRCP 54(b).

Section 7-7-D-10 requires developers to mitigate hazards when “geologic conditions and/or natural hazards are indentified in the Engineering Geology Report that could adversely affect the development.” Alpenhof argued that because the City’s diversion channel altered the flow of the creek, the current erosion and flood risk to Parcel C cannot be considered “natural” under the section. The Court found that the hazard to Parcel C is necessarily intertwined with the natural features and geologic conditions of the area, particularly the steep descent from its headwaters.

In addition, Alpenhof’s contention runs afoul of the “broad authority [granted] to local governments to plan for and regulate the use of land within their respective jurisdictions.” The City Council made specific findings about the public safety risks associated with Parcel C and rightly concluded that the section allowed subdivision approval to be conditioned on mitigation of these risks. The Court found ample record support for the City Council’s decision and the order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Defendant Only Entitled to Presentence Confinement Credit for Time Spent in Jail After Parole Discharged

The Colorado Court of Appeals issued its opinion in People v. Carillo on Thursday, January 17, 2013.

Misdemeanor—Unlawful Sexual Contact—Parole—Presentence Confinement Credit.

Defendant appealed the sentence imposed on the judgment of conviction entered following his guilty plea to misdemeanor unlawful sexual contact. The sentence was affirmed.

While defendant was on parole for another offense, police arrested him on suspicion of sexual assault and other offenses and booked him into the Pueblo County Jail. Unable to post bond, he remained there pending disposition of the charges. After defendant pleaded guilty to misdemeanor unlawful sexual contact, the court found that defendant was entitled to nineteen days of presentence confinement credit (PSCC) against his misdemeanor sentence at the sentencing hearing, even though defendant spent 274 days in presentence confinement.

Defendant contended that the trial court erred in awarding him only nineteen days of PSCC. In enacting CRS § 18-1.3-509, the General Assembly intended that credit for time served on misdemeanor offenses should be treated the same as credit for time served on felony offenses. Therefore, defendant was not entitled to credit against his new misdemeanor sentence for time served while on parole for a previous offense.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 1/18/13

On Friday, January 18, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Martinez

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

Spark the Discussion: The “Amendment 64 Implementation Task Force”

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq. and Rachelle Yeung

When Governor Hickenlooper signed Amendment 64 into law, proclaiming marijuana legal to use, possess and purchase for adults 21 years-old or older in Colorado, advocates barely paused to celebrate their victory – and opponents barely recognized their defeat.

Instead, all sides immediately began working on implementing this historic initiative through the Governor’s “Amendment 64 Implementation Task Force.” The Task Force, created by an Executive Order of the Governor, is comprised of 26 members, which were selected for their wide range of interests and expertise – from representatives of the Attorney General’s Office and the Department of Revenue to medical marijuana industry groups and other stakeholders.[1]

The Task Force is assisted by committees, or “Working Groups,” each of which is co-chaired by a member of the Task Force and made up of additional stakeholders and members of the public. The five Working Groups are:

  1. Regulatory Framework
  2. Local Authority and Control
  3. Tax/Funding and Civil Law
  4. Criminal Law
  5. Consumer Safety and Social Issues

The various Working Groups have discussed a large range of issues, some of the issues are already addressed in the text of Amendment 64 while other issues appear almost unrelated. A full list of all the issues discussed, agendas, meeting times, and audio recordings are available on the Department of Revenue’s Amendment 64 Task Force website. The Task Force is scheduled to make its recommendations to the Governor, the State Legislature, and the Department of Revenue by the end of February.

During its first meeting, members of the Criminal Law Working Group came to a consensus that they should avoid tackling issues of driving under the influence of drugs (DUID) and industrial hemp.  Despite being tasked with these issues, the Working Group decided discussing these would be a waste of valuable time and resources.  In fact, Brian Connors, co-chair of the Working Group and representative of the Public Defender’s Office, noted, revisiting the DUID issue would be not only time-intensive, but redundant. The legislature and the Colorado Commission on Criminal & Juvenile Justice have been researching the question for well over two years, and have developed far more familiarity with the topic. In fact, a marijuana related DUID bill was recently introduced in the state legislature that appears to strike a compromise between the various stakeholders.

Instead, the Criminal Law Working Group will focus on determining legal definitions and confronting law enforcement issues. For example, can evidence of marijuana alone be the basis for probable cause? In the event of a dismissal or ‘not guilty’ verdict, do law enforcement agencies have a duty to maintain seized marijuana plants? This Working Group has also veered off path to discuss completely unrelated issues such as requiring drug tests for all minors who apply for a driver’s license.

The Tax/Funding and Civil Law Working Group, among other things, addressed the issue of banking for state licensed marijuana businesses. Because marijuana is still illegal under federal law, most banks are fearful of handling funds related to marijuana. However, all parties involved, from marijuana business owners to representatives of the Colorado Bankers Association agreed that the fledgling marijuana industry could not depend entirely on cash transactions. Unfortunately, the Working Group was faced with a serious shortage of viable alternatives, and in the end, resolved only to write to the Federal Government, requesting further guidance.

The Regulatory Framework Working Group kicked off its first meeting by examining existing regulatory frameworks and deciding which framework to model recreational marijuana on – specifically, whether to base it on our medical marijuana code or our alcohol/liquor code. Amusingly, one of the first issues to come up was whether to require vertical integration, which the medical marijuana code mandates, or prohibit it, which is the case with liquor.

One suspect issue was also brought up by the Regulatory Framework Working Group: whether to recommend a residency requirement for those who are going to purchase marijuana from a licensed store.  This issue caught many people by surprise as Amendment 64’s personal protection clause makes clear that “possessing, using, displaying, purchasing, or transporting marijuana” is now legal under state law for persons over the age of 21. The plain language of Amendment 64 applies to all adults aged 21 or older.

In addition to the issues covered by the other Working Groups, the Local Authority and Control Working Group is working to resolve:  What can local jurisdictions regulate? What will be the local controls regarding advertising?  What/who is the local authority over fines and licensing?  Lastly, the Consumer Safety/Social Issues Working Group is working to resolve issues associated with: advertising and marketing to minors; product labeling and packaging; product testing; and consumer, public, and industry education.

Surprisingly, a significant number of vocal marijuana opponents managed to secure positions on the Governor’s Task Force and in the working groups; however, the Task Force is not supposed to debate the merits of Amendment 64 or impede its implementation. Additionally, not all issues discussed by the Task Force will or should become recommendations of the Task Force, let alone a bill or regulation. The Task Force should only make recommendations that are both legally sound and good public policy. For example, a residency requirement on marijuana purchases, although discussed by one of the working groups, would be bad public policy because it would only perpetuate another black market and derive the state of tax revenue – exactly what the voters of Colorado wanted to prohibit with Amendment 64. Additionally, such a significant statutory limitation on Amendment 64 may not withstand legal scrutiny.[2]

Considering the Task Force has a mandate from the 55% of our electorate that voted for Amendment 64 and that they have less than a month now to make their recommendations, we can only hope that the proponents and opponents of marijuana reform can work together, stay on track, and focus on implementing the will of the voters. Nonetheless, we will all have to wait and see on what the Task Force actually recommends.


[1] It is worth noting that the Task Force really doesn’t have to address any issues besides funding the Department of Revenue to make rules because Amendment 64 is self-executing.

[2] Generally in Colorado, self-executing initiatives cannot be narrowed, impaired, or limited by the legislature. Yenter v. Baker, 126 Colo. 232, 236-237 (Colo. 1952); See also Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996).

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.

Rachelle Yeung is currently in her third year at the University of Colorado School of Law and a law clerk at Vicente Sederberg LLC.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

e-Legislative Report: January 21, 2013 – Week 1

Each week during the legislative session, CBA Director of Legislative Relations Michael Valdez issues an e-Legislative Report. This week, in the legislative video update, Michael discusses the “back to school” feel of the beginning of the new legislative session.

State of the Judiciary

On Friday, Jan. 11, Chief Justice Michael L. Bender delivered his traditional State of the Judiciary Address to a joint session of the Senate and House of Representatives. This was Chief Justice Bender’s last State of the Judiciary address since—to use his term—he is being “sent out to pasture” (mandatory retirement at age 72.) Chief Justice Bender introduced his colleagues from the Supreme Court and State Court Administrator Judge Gerald Marroney. The Chief also acknowledged invited guests: Marty Katz, Dean of the Sturm College of Law at the University of Denver; Marianne Wesson, University of Colorado Law School Professor; and Mark Fogg, President of the CBA. The Chief was joined by a large contingent of his family which included his wife Helen. Finally, Charlie Greer, a professor, poet, and close friend was in attendance.

Early in his speech, Chief Justice Bender emphasized three important themes:

  1. The importance of citizens’ trust in the rule of law in our democracy.
  2. The way in which the judicial branch in Colorado furthers the rule of law for our citizens.
  3. The importance for the courts and the legal community to understand the needs of the public they serve and to collaborate to create programs that address those needs.

The Chief highlighted several recent initiatives that the Branch has undertaken to improve the efficiency of the branch and the service to the state. Of special note, Chief Justice Bender talked about the Chief Justice Commission on the Legal Profession, which combined the three main pillars of the legal profession—judges, lawyers, and Colorado’s two law schools—to extend the mission of the judiciary to the legal profession as a whole; the Chief’s remarks included six projects that the Commission has accomplished or continues to advance.

In his closing, the Chief Justice looked forward to working with the both houses in the coming legislative session.

Click here for the full text of the Chief Justice’s speech.

From the Capitol

Without many bills to consider on 2nd and 3rd Readings, floor work was limited in both houses. Joint committees of reference (House and Senate) were occupied with the various departments of state government making presentations that comply with the SMART (State Measurements for Accountable, Responsive and Transparent) Government Act. The genesis, HB 10–1119, sets forth requirements for budgeting by state departments and implemented a new role for state department budgeting and created a new role for legislative committees of reference. Several SMART hearings will continue the week of January 21 with more and more bills being added to the calendar.

From the CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

At its Jan. 18 meeting the LPC voted to reaffirm CBA support for Civil Unions. The Committee voted to support SB 13–11 in the 2013 session. The bill is scheduled for its first committee review on Wednesday, Jan. 23 at 1:30 p.m.

Stay tuned for summaries of selected House and Senate bills, which were summarized in the e-Legislative Report and will appear in Legal Connection feeds.

Colorado Court of Appeals: Juvenile Adjudications in a Prosecution Witness’s Criminal History are Discoverable and Must Be Disclosed, Therefore Trial Court Erred in Finding Otherwise

The Colorado Court of Appeals issued its opinion in People v. Corson on Thursday, January 17, 2013.

Crim.P. 35(c)—Discovery—Evidence—Juvenile Adjudication—Witness—Non-Disclosure—Involuntary Guilty Plea—Exculpatory Evidence—Ineffective Counsel.

Defendant David Corson appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief, which alleged that the nondisclosure of the complaining witness’s juvenile adjudications rendered his plea invalid and his counsel ineffective. The order was reversed and the case was remanded.

In 2001, Corson worked as a substance abuse counselor at a juvenile facility. K.B., a 17-year-old resident of the facility, alleged that Corson and she had engaged in a sexual relationship while she resided at the facility. After Corson pleaded guilty to sexual assault on a child by one in a position of trust, which was made in exchange for dismissal of the pattern of abuse count, Corson discovered evidence showing K.B. had previously made false allegations of sexual assault and had resulting juvenile adjudications for false reporting that the prosecution had not disclosed to the defense.

Corson contended that the district court erred in denying his motion, asserting that his guilty plea was unintelligent and involuntary because (1) the prosecution failed to comply with its discovery obligations, and (2) the prosecution made an affirmative misrepresentation regarding the existence of exculpatory evidence that induced this plea. He also contended that the prosecution’s nondisclosure of exculpatory evidence and its affirmative misrepresentation concerning its existence caused defense counsel to erroneously assess the case, rendering counsel ineffective. It is undisputed that the prosecution did not disclose to Corson evidence regarding K.B.’s juvenile adjudications. Because juvenile adjudications in a prosecution witness’s criminal history are discoverable and must be disclosed as part of the prosecution’s discovery obligations, the trial court erred in finding otherwise. Therefore, the trial court’s order was reversed and the case was remanded for the court to reevaluate Corson’s motion.

Summary and full case available here.