June 16, 2019

Archives for April 29, 2013

Realizing the Dream: Equality for All — Law Day Celebrations Across the State

I Have A DreamOn Wednesday, May 1, 2013, pro se litigants in the First Judicial District will have an opportunity to meet with an attorney for 15 minutes to discuss their civil, criminal, domestic, juvenile, or small claims case. There is no cost for the meeting. The event is part of 2013 Law Day celebrations, and it will run from 9 a.m. to 4 p.m. in the atrium of the Jefferson County Courts building (100 Jefferson County Parkway in Golden).

Law Day is celebrated nationally each year on May 1. President Dwight Eisenhower established the first Law Day in 1958 to mark the nation’s commitment to the rule of law. In 1961, Congress issued a joint resolution (codified at 36 U.S.C. § 113) designating May 1 as the official date for celebrating Law Day. The theme of this year’s Law Day is “Realizing the Dream: Equality for All.” 2013 is the 150th anniversary of the emancipation proclamation, and the 50th anniversary of Rev. Dr. Martin Luther King, Jr.’s iconic “I Have a Dream” speech. The legacy of the Civil Rights Movement can be seen in the strides that have been made against discrimination based on race, gender, ethnicity, national origin, religion, age, disability, and sexual orientation.

The Colorado and Denver bar associations are also sponsoring events to celebrate Law Day. On May 1, there will be a special showing of the movie “Lincoln” at the Mayan Theater in Denver, with a CLE program presented by Hon. John Madden prior to the movie. Tickets are available through the CBA. On May 2, the DBA Young Lawyers Division will host a Law Day Reception at The Lobby, where the winners of the Law Day Art Contest will be recognized. RSVP to both events or either event by emailing lunches@cobar.org or calling the CBA at (303) 860-1115.

Students who participated in the DBA’s Law Day Art Contest will have their work featured at the Denver Art Museum through May. The winners of the art contest are featured on the cover of the May edition of The Docket, and all of the artwork from participating students is shown in the May edition. It is amazing and inspiring to view the adorable and creative works of these talented kids.

The El Paso County Bar Association is also hosting many Law Day events beginning on April 27 with Ask-A-Lawyer for Senior Citizens at the Colorado Springs Senior Center. On Saturday, May 4, they are hosting a Waldo Canyon Fire Tree Planting Service Project; download the registration form here. On Thursday, May 16, KKTV Channel 11 will host a Call-A-Lawyer event. To volunteer, email Pikes Peak pro bono. There will be a Law Day Race on May 17 at Monument Valley Park; registration will be on www.active.com. Finally, on Tuesday, May 21, there will be a Law Day Luncheon and awards ceremony in the Grand Ballroom of the Mining Exchange Hotel. Click here to RSVP.

For more information on Colorado’s Law Day events, click here. To see the CBA press release regarding Law Day, click here. For the ABA page about Law Day 2013, click here.

Colorado Court of Appeals: Reliance on Previous Exclusionary Order by Trial Court Error Where Balancing Test Under CRE 403 Not Performed

The Colorado Court of Appeals issued its opinion in People v. Osorio-Bahena on Thursday, April 25, 2013.

Sexual Assault Against an At-Risk Adult—Rape Shield Statute—Prior Sexual Conduct—Mental Capacity—Competency—Involuntary Psychiatric Evaluation.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted sexual assault. The judgment was affirmed.

St. Paul’s House is a residential-care facility for boys with developmental and mental health issues. In 2007, S.S., an 18-year-old resident of the facility with the mental capacity of a 5-year-old, reported that defendant, who worked at the facility, had sexually assaulted him. Defendant was charged with sexual assault against an at-risk adult.

Defendant contended that the exclusion of evidence that described S.S.’s prior incidents of oral and anal sex, offered to explain an alternative source of S.S.’s sexual knowledge, was an abuse of discretion. Evidence of S.S.’s prior sexual conduct was not relevant to show an alternative source of S.S.’s sexual knowledge because (1) S.S.’s limited mental capacity may have given rise to an inference of a lack of sexual knowledge; (2) evidence of prior incidents may show an alternative source of sexual knowledge, regardless of whether the prosecution injects the issue into the trial; and (3) the dissimilarities here did not tend to negate such knowledge. The case was remanded to the trial court to evaluate the admissibility of the evidence under CRE 403.

Defendant contended that the trial court erred by denying his motion for an involuntary psychiatric competency evaluation of S.S. and finding that S.S. was competent to testify. The pretrial testimony by the director of the facility and the videotaped interviews of S.S. both support the trial court’s findings that S.S. could recall the incident and understand the difference between the truth and a lie. Accordingly, the trial court did not abuse its discretion in refusing to order an involuntary examination or finding S.S. competent to testify.

Defendant also contended that the trial court erred by allowing the jury to view a photograph of his bare chest, taken during trial but outside the jury’s presence. He asserted that taking the photograph violated Crim.P. 41.1 and his Fifth Amendment right against self-incrimination. The Court ruled that the photograph was relevant merely to support S.S.’s statements about defendant, and thus rejected defendant’s assertions.

Defendant further argued that the trial court erred when it rejected his request to allow his wife to testify that he was uncircumcised. However, because S.S. was never asked about this particular fact, the evidence was not relevant.

Summary and full case available here.

Colorado Court of Appeals: Defendant Whose Conviction was Overturned is Entitled to Refund of Restitution Paid

The Colorado Court of Appeals issued its opinion in People v. Madden on Thursday, April 25, 2013.

Refund of Restitution—Overturned Conviction.

Defendant Louis Madden appealed the district court’s order denying his request for a refund of restitution. The order was reversed and the case was remanded.

Madden was convicted of attempted patronizing of a prostituted child and attempted third-degree sexual assault by force, and he was ordered to pay restitution in the amount of $910. The Supreme Court ultimately reversed his conviction for attempted patronizing of a prostituted child, and the attempted third-degree sexual assault conviction was later vacated due to constitutionally ineffective trial counsel.

Madden argued that the trial court erred in denying his request for a refund of the restitution paid after his conviction was vacated, and the Court of Appeals agreed. A defendant whose conviction is overturned on appeal is entitled to seek a refund of the restitution paid in connection with the overturned conviction when the People fail to prove on remand the defendant’s guilt of the charged crimes beyond a reasonable doubt. Therefore, Madden was entitled to a refund of the restitution that he paid in connection with his now overturned conviction, and he was permitted to request a refund by filing a motion in this case. Therefore, the order was reversed and the case was remanded to the district court to award Madden a refund of the restitution that he paid in this case.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 4/25/13

On Thursday, April 25, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

United States v. Ford

Esparza v. Bowman

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

SB 13-281: Expediting the Resolution of Disputes Related to Tax Credits for Donation of a Perpetual Conservation Easement

On Thursday, April 18, 2013, Sen. Larry Crowder introduced SB 13-281 – Concerning the Expeditious Resolution of Disputed Claims for State Income Tax Credits Allowed for the Donation of a Perpetual Conservation Easement. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Taxpayers may claim a state income tax credit for a portion of the value of a perpetual conservation easement that the taxpayer donates. If the executive director of the department of revenue disputes the claim of the credit, current law sets forth procedures for resolving the claim administratively or through an appeal process in the courts. In the past, a significant number of claims have been disputed and are in the process of being resolved.

The bill requires all disputes for tax credits claimed prior to July 1, 2008, to be resolved by July 1, 2014, and prohibits the state from using any funds, resources, or personnel to continue to litigate these disputed claims after that date.

The bill was introduced on April 18 and assigned to the State, Veterans, & Military Affairs Committee. The bill is scheduled for committee review on May 1 at 1:30 p.m.

SB 13-278: Creating a Definition of “Drug-endangered Child” Within the Context of Child Abuse and Neglect

On Thursday, April 18, 2013, Sen. Andy Kerr introduced SB 13-278 – Concerning Creating a Definition of a “Drug-endangered Child” with Respect to Child Abuse or Neglect. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a definition of a “drug-endangered child” in the context of child abuse or neglect.

The bill was introduced on April 18 and assigned to the Health & Human Services Committee. The bill is scheduled for committee review on April 25 at 1:30 p.m.

On April 25, the Senate Committee on Health & Human Services heard witness testimony and had committee discussion only; no action was taken on the bill.

SB 13-277: Creating a Uniform Process for Obtaining Prior Authorization for Coverage of a Prescription Drug Benefit

On Tuesday, April 16, 2013, Sen. Irene Aguilar introduced SB 13-277 – Concerning the Development of a Prior Authorization Process to be Used in Obtaining Prior Approval from Carriers for Coverage of Drug Benefits. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the commissioner of insurance (commissioner) to develop, by July 31, 2014, and prescribing providers, carriers, and, if applicable, pharmacy benefit management firms (PBMs), to use, by Jan. 1, 2015, a uniform prior authorization process for purposes of submitting and receiving requests for prior coverage approval of a drug benefit.

The commissioner is directed to adopt rules to establish the prior authorization process, which is to include specified components aimed at creating uniformity and reducing administrative burdens on prescribing providers, carriers, and PBMs, as well as making the criteria used for deciding prior authorization requests transparent and establishing a procedure for waiving the process under extenuating circumstances.

To assist in developing the process, the commissioner is to appoint a work group of various stakeholders to make recommendations on specified aspects of the process that the commissioner is to consider, including national standards for electronic prior authorization.

Once the prior authorization process is established, the request is deemed granted if a carrier or PBM fails to use or accept the prior authorization process, fails to notify the prescribing provider within a specified period that the request is approved or denied or that additional information is required to process the request, or fails to notify the prescribing provider within a specified period after receipt of the required additional information that the request is approved or denied. An approved prior authorization is valid for at least 180 days after the date of approval.

The bill was introduced on April 16 and assigned to the Health & Human Services Committee. The bill is scheduled for committee review on April 25 at 1:30 p.m.

Since this summary, the Senate Committee on Health and Human Services referred the bill, unamended, for consideration on Second Reading in the Senate.