August 20, 2019

Archives for January 20, 2014

e-Legislative Report: January 20, 2014

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. 17 meeting, the LPC voted to support HB 14-1050. Concerning an increase in the number of judges for the eighteenth judicial district. By Rep. Kagan and Sen. Guzman. The bill increases the number of judges for the 18th judicial district from 21 to 23. The bill was approved by the House Judiciary Committee on a 9–0 vote on Jan. 16. The bill moves to the Appropriations Committee for consideration of the cost to the state.

At the Capitol—Week of Jan. 13

The week of Jan. 13 was relatively light in terms of bills running through the committees of reference and floor work in both chambers. A recap of the committee and floor work follows.

In the Senate

On Tuesday, Jan. 14, the Senate Finance Committee gave initial approval to SB 14-19. Concerning the state income tax filing status of two taxpayers who may legally file a joint federal income tax return. By Sen. Steadman and Rep. Moreno. The CBA LPC voted to support this legislation at its Dec. 13, 2013 meeting. The bill requires any two taxpayers who may legally file a joint federal income tax return to file separate state income tax returns if they file separate federal income tax returns and to file a joint state income tax return if they file a joint federal income tax return. The bill was amended to allow amended tax returns three years in the past. The bill moves to the floor for debate and vote on 2nd Reading.

On Wednesday, Jan. 15, the Senate Judiciary Committee approved—with amendments—SB 14-27. Concerning criminal history background checks for professionals who have the authority to appear in court. By Sen. Guzman. The bill requires a fingerprint-based criminal history background check for a law license applicant and a child and family investigator. The CBA LPC voted to support this legislation at its Dec. 13 meeting. The bill moves to the Finance Committee for review. The Senate Judiciary Committee also amended and approved SB 14-09. Concerning a disclosure of possible separate ownership of the mineral estate in the sale of real property. By Sen. Hodge and Rep. Moreno. As the bill title states, the bill requires a seller to disclose in the sale of real property that a separate mineral estate may subject the property to oil, gas, or mineral extraction.

In the House

On Tuesday, Jan. 14, the House Judiciary Committee approved (unanimous vote) HB 14-1019. Concerning the enactment of Colorado Revised Statutes 2013 as the positive and statutory law of the state of Colorado, by Rep. Gardner and Sen. Steadman. The bill moved to the floor where it was approved on 2nd Reading on Friday, Jan. 17. Also on a unanimous vote, the Judiciary Committee defeated HB 14-1025. Concerning the determination of competency to proceed for individuals in the juvenile justice system, by Rep. Rosenthal and Sen. Newell.

On Wednesday, Jan. 15, the House Transportation and Energy Committee approved HB 14-1027. Concerning the clarification of the definition of a plug-in electric motor vehicle, by Rep. Fischer and Sen. Jones. The bill, among other things, defines “plug-in electric motor vehicle” to include motor vehicles that are certified to be eligible for a particular federal tax credit. The bill moves to the floor of the House for consideration on 2nd Reading.

The House Judiciary Committee

The Judiciary Committee gave unanimous approval of the legislation to increase the number of judges in the 18th Judiciary District on Thursday, Jan. 16. The bill, HB 14-1050. Concerning an increase in the number of judges for the eighteenth judicial district, by Rep. Kagan and Sen. Guzman, increases the number of judges in the 18 JD from 21 to 23. The bill moves to the Appropriations Committee for consideration of the Fiscal Impact to the state. This bill will be on a fast track due to internal legislative rules that require bills to increase the number of judges to be through the entire legislative process by March 7. The CBA LPC voted to support this legislation at its Jan. 17 meeting.

Stay tuned for ten bills of interest.

Tenth Circuit: Federal Agency Did Not Err in Denying Insurance Coverage to Appellants Who Planted Corn on Newly Broken, Non-Irrigated Acraege

The Tenth Circuit Court of Appeals published its opinion in Jagers v. Federal Crop Insurance Corp. on Tuesday, January 13, 2014.

In this appeal, the Tenth Circuit considered whether Appellee Federal Crop Insurance Corporation acted arbitrarily or capriciously in denying federal crop insurance coverage for corn that Appellants planted in 2008 on newly broken, non-irrigated acreage in Baca County, Colorado. The agency determined that coverage should be denied because Appellants failed to follow good farming practices by planting on this newly broken land without first allowing a fallow period. After they each received an unfavorable good farming practices determination, Appellants filed the instant action in the district court. The district court affirmed the agency’s unfavorable GFP determinations as to Appellants, and this appeal followed.

Appellants argued that the Court should overturn the agency’s determination as arbitrary and capricious because (1) the agency predetermined this result and made its decision based on bias and other improper motivations, and (2) the agency failed to follow its own procedures relating to the issuance of GFP determinations.  Specifically, appellants argued the agency’s good farming practices (“GFP”) determination should be overturned as arbitrary and capricious because (1) “issuance of the GFP Determinations at issue was predetermined” as early as June 2008 (2) the Risk Management Agency (“RMA”) was biased in favor of minimizing the number of non-irrigated acres that would receive insurance coverage; (3) the RMA “was motivated by its own pecuniary interests” to limit its own insurance liability; (4) the RMA was also motivated by “political pressures; and (5) the agency’s consideration of these improper financial and pecuniary motivations proved that the agency acted in bad faith and violated Appellants’ due process rights.

The court was not persuaded by any of these arguments. First, the record did not support Appellants’ assertion that the negative GFP determination was predetermined. As for Appellants’ argument that the negative GFP determination must be overturned because the agency was improperly motivated by financial concerns, Appellants cited to no authority for the proposition that an agency acts arbitrarily and capriciously by making a decision that is partially motivated by the desire to limit the expenditure of government funds. Similarly, Appellants cited to no authority for the proposition that an agency’s decision should be overturned if a critical internal report by an investigative arm of the same government department could potentially have pressured the agency into taking some type of responsive action. Nor was the court persuaded it was required to overturn the RMA’s GFP determination based on whatever internal political pressure resulted from the Office of Inspector General’s report. The court was also not persuaded the agency’s possible motivations to reach a particular result proved that the agency acted in bad faith or violated Appellants’ due process rights. The agency relied on objective scientific evidence to conclude that planting nonirrigated corn on newly broken lands in eastern Colorado without a fallow period was not a good farming practice.

Finally, the court turned to Appellants’ argument that the RMA’s GFP determination should be reversed under the Accardi doctrine, which requires an agency to adhere to the policy and regulations it promulgates. The Tenth Circuit found this argument unpersuasive for two reasons. First, the only policies Appellants cited were contained within RMA manuals and handbooks, not promulgated regulations. The Tenth Circuit was also unpersuaded by Appellants’ argument that the agency failed to follow its own procedures when it alluded to allegations of program abuse and fraud in the district court proceedings without having followed the established procedures for imposing sanctions for fraud. The agency’s GFP determination did not depend on these allegations, and there was no evidence the agency attempted to impose a sanction for fraud or program abuse. The agency examined the relevant data and articulated a satisfactory explanation for its decision, including a rational connection between the facts found and the decision made. Under its deferential standard of review, the court saw no error in the agency’s analysis, and it was not persuaded there was any other valid reason for overturning the agency’s GFP determination.


Tenth Circuit: Unpublished Opinions, 1/17/14

On Friday, January 17, 2014, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

United States v. Rico

Bailey v. Silver

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Hon. Norman Haglund in Second Judicial District to Retire

On Thursday, January 16, 2014, the Colorado State Judicial Branch announced the impending retirement of Hon. Norman D. Haglund of the Denver District Court, effective April 18, 2014.

Judge Haglund was appointed to the bench in April 2007, where he was first assigned to the civil division and then moved to the family division. Prior to his appointment, he was an attorney in private practice. He received his undergraduate degree from Dartmouth College, cum laude, and his law degree from Harvard University.

The Second Judicial District Nominating Commission is accepting applications for the vacancy created by Judge Haglund’s retirement. Eligible candidates must be qualified electors of the Second Judicial District and must have been admitted to practice law in Colorado for five years. Applications are available on the State Judicial website and also from Justice Coats, the ex officio chair of the nominating commission. They must be received in PDF format no later than 4 p.m. on February 18, 2014.

For  more information about the vacancy and the application process, click here.

Colorado Court of Appeals: Development Rights in Condominium Unit Constitute Taxable Interest in Real Property for Ad Valorem Tax Purposes

The Colorado Court of Appeals issued its opinion in Village at Treehouse, Inc. v. Property Tax Administrator on Thursday, January 16, 2014.

Real Property—Development Rights—Ad ValoremTax—Unit Assessment Rule.

Petitioner, Village at Treehouse, Inc. (Village), paid more than $1 million to purchase the development rights from the Treehouse Condominium Association, Inc. (HOA), which gave the Village the right to construct up to nineteen condominium units at the Treehouse Condominiums. The development rights were created by an amendment to the Treehouse Condominiums’ declaration in 2006 and conveyed to the Village by the HOA in 2008 in a document entitled “Warranty and Assignment of Supplemental Development Rights” (Assignment). The Board of Assessment Appeals (BAA) found that the development rights the Village had acquired to build new condominium units constituted a taxable interest in real property for ad valorem tax purposes.

The Village argued on appeal that the development rights conveyed to it by the Assignment are not taxable. The Assignment, in effect, severed the development rights from the Treehouse Condominiums’ common elements and conveyed them to the Village. Therefore, the Assignment conveyed a taxable interest in real property. Because the Village acquired interests in land, taxation of the development rights was required under CRS § 39-1-102(16) and (14)(a). Therefore, the development rights were property interests subject to taxation, and the BAA did not err in its ruling.

The Village also argued that taxation of the development rights violated CRS §§ 39-1-103(10) and 38-33.3-105. Because the Assignment evinced the intent to sever title to the development rights from the Condominiums, including severance from the common elements, taxing the development rights separately from the common elements did not contravene §§39-1-103(10) or 38-33.3-105.

The Village further argued that the unit assessment rule precludes separate taxation of the development rights. Because the Assignment created separate interests in real estate as between the interests of the individual unit owners and those of the Village, separate taxation of those interests did not violate the unit assessment rule. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Attorney Fees Should Have Been Awarded in Open Records Case

The Colorado Court of Appeals issued its opinion in Reno, Chaffee County Clerk & Reporter v. Marks on Thursday, January 16, 2014.

Voted Ballots—Colorado Open Records Act—CRS §24-72-204(5)—Attorney Fees.

Respondent Marilyn Marks sent to petitioner Joyce Reno, the Chaffee County Clerk and Recorder, two written requests to review some voted ballots from the 2010 general election. Reno filed an action in district court under the Colorado Open Records Act (CORA), requesting that the court prevent the disclosure of voted ballots. Before the hearing on Reno’s petition, the parties stipulated to stay the proceedings pending the outcome of proposed legislation, House Bill 12-1036. After the bill passed, Reno agreed to produce a single anonymous voted ballot according to guidelines contained in the statute. Following an evidentiary hearing, the district court declined to award Marks any attorney fees.

CRS §24-72-204(5) states that the court “shall award court costs and reasonable attorney fees to the prevailing applicant” unless the custodian obtains an order restricting inspection. On appeal, Marks contended that because she was the prevailing applicant under CRS §24-72-204(5), the court erred in denying her request for attorney fees. Reno commenced the action but failed to obtain a court order shielding any of the requested records from inspection; hence, Reno is liable for Marks’s attorney fees. The Court of Appeals found that as a consequence, Marks was entitled to reasonable appellate attorney fees under CORA. Therefore, the order denying Marks’s request for attorney fees was reversed and the case was remanded to the trial court for an award of Marks’s reasonable attorney fees, including her fees in this appeal.

Summary and full case available here.