March 26, 2019

Archives for April 8, 2013

Colorado Judicial Ethics Advisory Board Opinions 2013-01 and 2013-02 Released

The Colorado Judicial Ethics Advisory Board released two new opinions in late March 2013. The Colorado Judicial Ethics Advisory Board (C.J.E.A.B.) is a supreme court committee comprised of judges and non-judges who offer practical advice on ethical issues to members of the judiciary. There are seven members of the C.J.E.A.B. Four are judges, one is a non-lawyer citizen, one an attorney, and one a law professor with an interest in ethics.

C.J.E.A.B. Opinion 2013-01 addresses the issue of whether a judge can sit on the board of directors for the Colorado Organization for Victim Assistance. The decision confirms that the judge may sit on that board, provided he or she is able to ensure that the board activities do not impair his or her impartiality, and that doing so would not lead to frequent disqualification.

C.J.E.A.B. Opinion 2013-02 discusses whether, as part of their administrative duties, judges may ethically select attorneys who are eligible for appointment as counsel for respondent parents in dependency and neglect proceedings. They may select such attorneys, and may also monitor their performance, provided that they maintain impartiality in exercising those decisions and the decisions are based on merit.

For more information about the Colorado Judicial Ethics Advisory Board, and for all of the C.J.E.A.B. opinions, click here.

Colorado Supreme Court: Announcement Sheet, 4/8/13

On Monday, April 8, 2013, the Colorado Supreme Court issued five published opinions.

People v. Barraza

People v. Luna-Solis

Perez v. People

Rizo v. People

Robles v. People

The summaries for these 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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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.

SB 13-229: Amending Statutory Provisions Related to Criminal Proceedings

On Thursday, March 21, 2013, Sen. Lucia Guzman introduced SB 13-229 – Concerning Changes to Statutory Provisions Related to Criminal Proceedings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, the fiscal note for a bill that creates a new crime includes an analysis of that new crime. The bill adds a description of gender and minority data related to the new crime to the analysis.

The bill changes the definition of felony complaint to require the complaint to be signed by the prosecutor. The change corresponds to a change in the Colorado rules of criminal procedure.

For security fraud offenses, the bill states the statute of limitations begins to run on the discovery of the criminal act.

The bill requires that if requested by the prosecution or defense that the probation department provide the presentence report at least seven days prior to sentencing. If the probation department can’t meet that deadline, the court shall grant the probation department an additional seven days to provide the presentence report.

Under current law, a presentence report regarding a sex offender must include a sex offender evaluation. There are some exceptions to this requirement. The bill adds an additional exception for cases in which there is a court-accepted stipulation by the sex offender and prosecutor to jail time or the sex offender is already serving a sentence in the department of corrections.

The bill makes clarifying changes to when a person convicted of a sex offense as a juvenile can petition to discontinue sex offender registration.

The bill corrects an incorrect internal citation.

The bill adds to the definition of restitution to include health care costs covered by a government agency or insurer.

Under current law, a person may commit first degree burglary if he or she possesses a deadly weapon during the burglary. The bill amends the crime so that a person must use or threaten the use of a deadly weapon to commit first degree burglary.

Under current law, a juvenile committed to a staff secure placement who turns 18 in custody and who walks away can be charged with a class 3 felony. The bill creates a new offense for that situation that is a class 3 misdemeanor. The bill directs that a juvenile who is subject to a direct file or transfer must be held in a county jail once the juvenile turns 18.

The bill clarifies some provisions in the aggravated juvenile offender statute.

Under current law, the district attorney or a probation officer may apply for entry of conviction and imposition of sentence for a deferred prosecution within the term of the deferred prosecution and up to 30 days after the term. The bill clarifies that time period also applies to juvenile deferred adjudications.

The bill allows the district attorney to appoint part-time district attorneys who do not practice criminal defense in the jurisdiction to fulfill the duties of the district attorney without the approval of the county commissioners. The bill adds that the appointed attorneys may be attorneys employed by the Colorado district attorneys’ council. The bill eliminates the requirement that part-time district attorneys be paid by the county they serve.

The bill clarifies that in a record-sealing petition based on a dismissal that is not the result of a completion of deferred disposition or multi-case disposition, the court shall order the record sealed if the petition on its face is sufficient. The bill clarifies that in records-sealing cases, a person may petition for sealing one record every 12-month period.

The bill clarifies that in drug conviction records-sealing cases, a person may petition for sealing one record every 12-month period.

The bill specifies that the attorney general has concurrent jurisdiction with local district attorneys to prosecute persons for crimes related to air and water quality, hazardous waste and substances, and solid waste. The bill was introduced on March 21 and is assigned to the Judiciary Committee.

SB 13-227: Providing for Termination of Parental Rights of a Perpetrator of Sexual Assault Where a Child was Conceived as a Result of the Assault

On Thursday, March 21, 2013, Sen. Morgan Carroll introduced SB 13-227 – Concerning Methods to Protect the Victim of a Sexual Assault in Cases Where a Child was Conceived as a Result of the Sexual Assault. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

If a child was conceived as a result of an act that led to the parent’s conviction for sexual assault or a conviction in which the underlying factual basis was sexual assault, the parent who is the victim of the sexual assault (victim) may file a petition in juvenile court to prevent future contact with the parent who committed the sexual assault and to terminate the parent-child legal relationship of that parent. The court shall terminate the parent-child legal relationship if the court finds by clear and convincing evidence that:

  • The parent was convicted of an act of sexual assault against the victim or convicted of a crime in which the underlying factual basis was sexual assault against the victim;
  • The child was conceived as a result of that sexual assault or crime; and
  • Termination of the parent-child legal relationship is in the best interests of the child.

The bill creates a rebuttable presumption that terminating the parental rights of the parent who committed the act of sexual assault or crime is in the best interests of the child.

After a petition has been filed, the court may appoint a guardian ad litem to represent the child’s best interests in the proceeding.

The victim shall not be required to appear in the presence of the other parent, and the victim’s and the child’s whereabouts shall be kept confidential.

A person whose parental rights are terminated under the bill has:

  • No right to allocation of parental responsibilities for the child, including any right to parenting time or decision-making;
  • No right to inheritance from the child; and
  • No right to notice of, or standing to object to, the adoption of the child.

A person whose parental rights are terminated is not relieved of any obligation to pay child support unless waived by the victim. In such cases, the court shall order the payments to be made through the child support registry or a court escrow to avoid the need for any contact between the parties.

The victim shall be entitled, upon request, to a no-contact protection order issued against the person whose parental rights are terminated that prohibits the person from having any contact with either the victim or the child.

Termination of the parent-child legal relationship pursuant to the bill is an independent basis for termination of parental rights, and the court need not make any of the considerations or findings described in other statutes for termination of the parent-child legal relationship. The bill also states that nothing in the bill prohibits the termination of parental rights by the court using other grounds under the “Colorado Children’s Code” in cases that do not meet the criteria set forth in the bill. Amends the criminal statutes on sexual assault, unlawful sexual contact, sexual assault on a child by one in a position of trust, and sexual assault on a client by a psychotherapist to specify the loss of rights under the bill.

A task force on children conceived by rape is created to study and make recommendations for protecting rape victims and for addressing parental rights in cases in which there are allegations that a sexual assault has occurred, a conviction of or prosecution for sexual assault has not occurred, and a child has been conceived as a result of the alleged sexual assault. The bill specifies the membership of the task force, what it should study, and the time frame for the task force to report to certain legislative committees of the general assembly. The statutory authority for the task force repeals Jan. 1, 2014.

The portions of the bill that allow the court to terminate parental rights and that make conforming amendments to the criminal law statutes on sexual assault apply to acts or offenses committed on or after July 1, 2013.

The bill was introduced on March 21 and is assigned to the Judiciary Committee.

SB 13-221: Requiring an Application for a Tax Certificate for the Donation of a Perpetual Conservation Easement

On Friday, March 15, 2013, Sen. Steve King introduced SB 13-221 – Concerning an Application and Review Process for Issuing Tax Credit Certificates for a State Income Tax Credit Allowed for the Donation of a Perpetual Conservation Easement. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law allows a landowner to claim a state income tax credit of up to $375,000 for donating all or a portion of a perpetual conservation easement to a qualified organization. Landowners are also allowed to transfer all or a portion of a credit to another taxpayer, known as a transferee. Currently, a conservation easement tax credit cannot be claimed or used by the landowner or transferred to another taxpayer unless a tax credit certificate is issued by the division of real estate (division) in the department of regulatory agencies.

The executive director of the department of revenue (department) has the authority, for good cause shown and in consultation with the division and the conservation easement oversight commission (commission), to review and accept or reject, in whole or in part, the appraised value of the conservation easement, the amount of the tax credit being claimed, and the validity of the tax credit based upon the federal and state statutes and regulations in effect at the time of the donation. Under the current process, the department reviews conservation easement tax credit claims and uses for compliance with applicable requirements after the landowner or transferee files a tax return with the department.

The bill requires a landowner to file an application for a conservation easement tax credit certificate with the division and have certain aspects of the conservation easement donation reviewed and approved by the division director and the commission before a tax credit certificate is issued. The bill sets forth provisions governing the following:

  • The authority and responsibilities of the division, the division director, the commission, and the department in the tax credit certificate application review process, including the authority of the commission to delegate its authority to the division director;
  • The required documentation to be included with an application for a tax credit certificate;
  • The payment of a fee to cover the costs of administering the tax credit certificate application review process;
  • The process for identifying potential deficiencies with a conservation easement donation for which a landowner is applying for a tax credit certificate, notifying the landowner of the potential deficiencies, and obtaining additional information from the landowner to address the potential deficiencies; and
  • The process for approving an application or, if an application is denied, conducting settlement negotiations and appealing the denial.

A landowner may also request an optional preliminary advisory opinion from the division director and the commission regarding a proposed conservation easement donation. The opinion would be advisory only and would not constitute approval of a tax credit certificate application or a tax credit claim. The bill was introduced on March 15 and is assigned to the Finance Committee.

SB 13-220: Adding Emergency Medical Service Providers to List of Mandatory Reporters of Child Abuse

On Friday, March 15, 2013, Sen. Jeanne Nicholson introduced SB 13-220 – Concerning Adding Emergency Medical Service Providers to the List of Persons Who Must Report Possible Instances of Child Abuse. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill adds emergency medical service providers to the list of persons who are required to report possible instances of child abuse or neglect, with an exemption made for voluntary emergency medical service providers. The bill was introduced on March 15 and is assigned to the Health & Human Services Committee

Tenth Circuit: Unpublished Opinions, 4/5/13

On Friday, April 5, 2013, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

Dunn v. Harper County

Gleason v. McKune

Dunn v. State of Oklahoma

Okyere v. Rudek

United States v. Moore

United States v. Ruiz-Romero

United States v. Rogers

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

Tenth Circuit: Unpublished Opinions, 4/4/13

On Thursday, April 4, 2013, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Anderson v. Astrue

United States v. Gonzales

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