July 21, 2018

Archives for March 4, 2014

e-Legislative Report: March 3, 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.

Action taken at Feb. 28 LPC meeting:

  • The Committee voted to include a provision to the upcoming CBA Trusts and Estates Probate Code Omnibus legislation that is coming to a legislature near year you. The amendment provides a method for dealing with personal property that is secured by real property. This language will fit in with the small estate affidavit procedural changes previously approved by the LPC. The changes are CBA sponsored.
  • The Committee voted to support Parts 4 & 6 of the Uniform Power of Appointment Act (“UPOAA”) as prepared by the Trusts and Estates Committee who has previously navigated Parts 1–3 through the CBA approval process. The CBA will inform the Colorado Uniform Law Commissioners of the latest development and assist in obtaining a late bill. The UPOAA is CBA supported legislation.

At the Capitol—Week of Feb. 24

A scorecard of the committee and floor work follows.

In the House

Monday, Feb. 24

Passed 3rd Reading:

  • SB 14-52. Concerning actions taken to remediate soil erosion creating property damage. Vote: 65 yes and 0 no.
  • HB 14-1152. Concerning passive surveillance records of governmental entities. Vote: 63 yes and 2 no.
  • SB 14-67. Concerning aligning certain state medical assistance programs’ eligibility laws with the federal “Patient Protection and Affordable Care Act.” Vote: 37 yes and 28 no.
  • HB 14-1184. Concerning conservancy districts that are organized for the purpose of preventing floods. Vote: 65 yes and 0 no.
  • HB 14-1193. Concerning requirements governing the imposition of a fee for the research and retrieval of public records under the “Colorado Open Records Act.” Vote: 41 yes and 24 no.
  • HB 14-1265. Concerning the regulation of games of chance. Vote: 63 yes and 2 no.
  • HB 14-1222. Concerning modification of the terms under which a county may issue tax-exempt private activity bonds on behalf of an eligible applicant for the purpose of financing a geothermal energy project on the applicant’s property. Vote: 39 yes and 36 no.
  • HB 14-1228. Concerning the repeal of certain requirements for defensive driving schools attended in accordance with a court order resulting from a violation of a law regulating the operation of a motor vehicle. Vote: 63 yes and 2 no.

Tuesday, Feb. 25

Passed 3rd Reading:

  • HB 14-1114. Concerning the administration of earned time by the state department of corrections. Vote: 57 yes, 6 no, and 2 excused.
  • HB 14-1142. Concerning a prohibition against the off-site electronic sale of lottery tickets by the Colorado lottery commission. Vote: 49 yes, 14 no, and 2 excused.
  • HB 14-1163. Concerning a clarification of the cap imposed on the enterprise zone investment tax credit. Vote: 37 yes, 26 no, and 2 excused.
  • HB 14-1028. Concerning a limitation on the United States’ ability to impose conditions on a water right owner in exchange for permission to use land. Vote: 39 yes, 24 no, and 2 excused.

Wednesday, Feb. 26

Passed on 3rd Reading:

  • HB 14-1034. Concerning the creation of a wine packaging permit to allow certain alcohol beverage licensees to package wine produced by another wine manufacturer, and, in connection therewith, making an appropriation. Vote: 61 yes, 0 no, and 3 excused.
  • HB 14-1082. Concerning a requirement for written notice of cancellation of individual life insurance policies, and in connection therewith, requiring written notice prior to the lapse of individual life insurance policies. Vote: 61 yes, 0 no, and 3 excused.
  • HB 14-1254. Concerning a requirement to disclose fees charged to a unit owners’ association by a community association manager. Vote: 53 yes, 8 no, and 3 excused.
  • HB 14-1191. Concerning the creation of an emergency alert program to notify the public after a serious hit-and-run accident. Vote: 61 yes, 0 no, and 3 excused.
  • HB 14-1210. Concerning a requirement that a state agency enter into an intergovernmental agreement with a county to address wildland fires affecting certain state lands located within the county. Vote: 61 yes, 0 no, and 3 excused.
  • HB 14-1188. Concerning revenue generated from the outdoor advertising program administered by the department of transportation. Vote: 61 yes, 0 no, and 3 excused.

Thursday, Feb. 27

Passed on 3rd Reading:

  • HB 14-1054. Concerning restricting access by minors to artificial tanning devices, and, in connection therewith, making an appropriation. Vote: 33 yes, 31 no, and 1 excused.
  • HB 14-1108. Concerning limits on copayments made by a covered person for physical rehabilitation services. Vote: 37 yes, 27 no, and 1 excused.

Friday, Feb. 28

Passed on 3rd Reading:

  • HB 14-1100. Concerning the use of title documents to give notice of characteristics of motor vehicles that affect a vehicle’s value, and, in connection therewith, making an appropriation. Vote: 59 yes, 3 no, and 3 excused.
  • SB 14-76. Concerning the creation of a hard rock mining permit issued by the division of reclamation, mining, and safety for mining operations disturbing no more than five acres of surface area. Vote: 62 yes, 0 no, and 3 excused.

In the Senate

Monday, Feb. 24

Passed on 3rd Reading:

  • Consent Calendar: Vote: 35 yes and 0 no.
    1. HB 14-1074. Concerning payments that a nonprofit owner of a tax-exempt property may receive for reasonable expenses incurred without affecting the tax-exempt status of the property.
    2. HB 14-1018. Concerning the requirement that the department of revenue prepare a tax profile and expenditure report every two years.
    3. HB 14-1056. Concerning clarification of the statutes relating to the registration of collector’s item motor vehicles to specify that certain special emission inspection requirements for collector’s item motor vehicles registered prior to the enactment of House Bill 13-1071 continue to apply to those vehicles until they are transferred.
    4. HB 14-1010. Concerning corrections to statutory provisions relating to the prescribed burning program administered by the division of fire prevention and control in the department of public safety.
  • SB 14-17. Concerning a limitation on the approval of real estate developments that use water rights decreed for agricultural purposes to irrigate lawn grass. Vote: 24 yes and 11 no.
  • SB 14-18. Concerning the prohibition against furnishing nicotine products to persons under eighteen years of age. Vote: 25 yes and 10 no.

Tuesday, Feb. 25

Passed on 3rd Reading:

  • Consent Calendar: Vote: 35 yes and 0 no.
    1. HB 14-1059, by Representative(s) Garcia; also Senator(s) Crowder—Concerning clarifying that the ritual discharge of blank ammunition cartridges at a military funeral does not constitute the criminal offense of disorderly conduct.
    2. HB 14-1079. Concerning an increase in the monetary amount allowed for the limited offering registration procedure under the “Colorado Securities Act.”
  • HB 14-1024. Concerning the designation of the claret cup cactus as the state cactus. Vote: 28 yes and 7 no.

Wednesday, Feb. 26

Passed on 3rd Reading:

  • Consent Calendar:
    1. SB 14-142. Concerning an exception for certain water system facilities from the facilities that the commissioner of agriculture has a duty to inspect regarding pesticide storage. Vote: 34 yes, 0 no, and 1 excused.
    2. HB 14-1050. Concerning an increase in the number of judges for the eighteenth judicial district, and, in connection therewith, making an appropriation. Vote: 33 yes, 1 no, and 1 excused.
    3. SB 14-49. Concerning endangering public utility transmission, and, in connection therewith, making an appropriation. Vote: 34 yes, 0 no, and 1 excused.
  • HB 14-1005. Concerning clarification of the requirements applicable to a change of point of water diversion. Vote: 34 yes, 0 no, and 1 excused.
  • SB 14-129. Concerning changes to criminal provisions related to marijuana. Vote: 32 yes, 2 no, and 1 excused.

Thursday, Feb. 27

Passed on 3rd Reading:

  • SB 14-93. Concerning equivalent authority for pipeline companies to acquire right-of-way. Vote: 24 yes, 10 no, and 1 excused.

Friday, Feb. 21

Passed on 3rd Reading:

  • HB 14-1022. Concerning alignment of the duration of the child care authorization notice with the child care assistance eligibility period for children participating in the Colorado child care assistance program. Vote: 33 yes, 0 no, and 2 excused.
  • SB 14-29. Concerning the establishment of a paint stewardship program for the environmentally sound disposal of postconsumer architectural paint. Vote: 18 yes, 15 no, and 2 excused.

Stay tuned for 10 Bills of Interest.

Bills Regarding Joint Tax Returns for Partners in Civil Unions, Funding for Persons with Intellectual Disabilities, Appropriations, and More Signed

On Thursday, February 27, 2014, Governor Hickenlooper signed 28 bills into law. Seventeen of the bills were supplemental appropriations bills, which are not summarized here, but many of the other bills are highlighted below. To date, the governor has signed 35 bills into law.

  • SB 14-004 – Concerning the Role and Mission of Community Colleges, by Sen. Nancy Todd and Reps. James Wilson and Jenise May. The bill allows community colleges to provide Bachelor of Applied Science degrees.
  • SB 14-019 – Concerning the State Income Tax Filing Status of Two Taxpayers who may Legally File a Joint Federal Tax Return, by Sen. Pat Steadman and Reps. Dominick Moreno and Joann Ginal. The bill requires partners in a civil union who are eligible to file their federal income taxes jointly or separately to file their Colorado taxes with the same filing status. It also changes statutory language from “spouses” to “taxpayers” in many places.
  • SB 14-025 – Concerning Grants for Domestic Wastewater Treatment Works for Small Communities, by Sen. Mary Hodge and Rep. Randy Fischer. The bill makes grants available for small communities for projects to assist domestic wastewater treatment works. This program is to supplement an existing grant program for which grants have not been available since 2006.
  • SB 14-067 – Concerning Aligning Certain State Medical Assistance Programs’ Eligibility Laws with the Federal “Patient Protection and Affordable Care Act”, by Sen. Irene Aguilar and Rep. Jonathan Singer. The bill changes statutory language regarding eligibility for medical assistance, electronic data collection for determination of eligibility, and eligibility requirements for pregnant women and children.
  • HB 14-1004 – Concerning Emergency Management, and, in Connection Therewith, Eliminating and Reorganizing Two Entities Within the Division of Homeland Security and Emergency Management in the Department of Public Safety and Authorizing the Governor to Provide Individual Assistance During a Disaster Absent a Presidential Declaration of the Same, by Reps. Mike Foote and Stephen Humphrey. The bill reorganizes certain functions within the Department of Public Safety and authorizes the governor to provide financial assistance in times of emergency without a presidential declaration.
  • HB 14-1078 – Concerning Changes to the Public Education Accreditation Statutes as a Result of Legislative Review of the Rules of the State Board of Education, and, in Connection Therewith, Clarifying the Term “Public School” in the Accreditation Statutes, by Rep. Brittany Pettersen and Sen. Mike Johnston. The bill clarifies that schools that online programs housed in public schools are not considered online schools, and allows automatic renewal of accreditation of schools the category of accredited with an improvement plan or higher.
  • HB 14-1250 – Concerning Authorizing Payments from the Contingency Reserve Fund for the 2013-14 Budget Year for School Districts that are in Significant Financial Need Due to Unanticipated Events Occurring in the 2013-14 Budget Year, and, in Connection Therewith, Making an Appropriation, by Rep. Jenise May and Sen. Pat Steadman. The bill appropriates moneys from the General Fund to be used for school districts that were impacted by the flooding in September 2013.
  • HB 14-1252 – Concerning Funding for System Capacity Changes Related to Intellectual and Developmental Disabilities Waiver Services, and, in Connection Therewith, Making and Reducing Appropriations, by Reps. Jenise May and Cheri Gerou and Sen. Pat Steadman. The bill adjusts the amount of funds for certain intellectual and developmental disability services, and requires the Department of Health Care Policy and Financing to collect reports on the effectiveness and use of funds.

For a complete list of the governor’s 2014 legislative decisions, click here.

Colorado Supreme Court: Announcement Sheet, 3/3/2014

On Monday, March 3, 2014, the Colorado Supreme Court issued two published opinions.

City & County of Denver v. Denver Firefighters Local No. 858

Atlantic Richfield Co. v. Whiting Oil & Gas Corp.

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.

Colorado Court of Appeals: Arbitration Provision in Separation Agreement Covered Dispute Over Husband’s Payment Credits

The Colorado Court of Appeals issued its opinion in In re Marriage of Dorsey on Thursday, February 27, 2014.

Post-Dissolution of Marriage—Arbitration Provision.

The parties’ marriage ended in 2007. They entered into a separation agreement dividing their marital property and debt, and resolving maintenance and attorney fees. Under the property division, husband agreed to pay wife $4 million, in installment payments of no less than $40,000 a month for fifty-nine months, and the balance by December 20, 2011. Husband was entitled to reimbursement for certain expenses incurred in selling their properties and in facilitating wife’s purchase of her new home, and was entitled to apply any proceeds from the sale of property that was awarded to him to the amount owed to wife.

The separation agreement had a dispute resolution provision providing for mediation and then arbitration, if mediation was unsuccessful. The parties could not agree on the expenses for which husband was entitled to a credit, and wife refused to mediate/arbitrate. Husband requested the court order the parties to mediate/arbitrate pursuant to the agreement. Wife objected, arguing that the governing law provision should be read to mean that the courts should decide any disputes between the parties.

The district court ordered the parties to mediate/arbitrate. The arbitrator entered an award resolving their dispute concerning the final amount owed based on the credits. Wife moved to vacate the arbitrator’s award under CRS § 13-22-223(1)(d), contending that the arbitrator exceeded her authority by interpreting the separation agreement. The court denied the motion and confirmed the award. Wife appealed, and the Colorado Court of Appeals affirmed.

The arbitration provision in the separation agreement was extremely broad in scope, covering “any claim or controversy arising out of or as a result of [the parties’] dissolution of marriage.” The dispute regarding the credit due husband was clearly encompassed by this language. Wife’s argument regarding the “governing law and jurisdiction” provision does not supersede the arbitration clause. Because the dispute was subject to arbitration, the Court did not need to address wife’s contentions concerning the merits of the arbitrator’s award.

Summary and full case available here.

Colorado Court of Appeals: Claim for Destruction of Property Could Lie in Tort and Therefore is Likely Barred by CGIA

The Colorado Court of Appeals issued its opinion in Foster v. Board of Governors of Colorado State University System on Thursday, February 27, 2014.

Breach of Oral Bailment Contract—Tort—Colorado Governmental Immunity Act.

This case arose from a fire at Colorado State University’s Equine Reproduction Laboratory (Lab) that destroyed plaintiff Heather Foster’s property. Foster sued the Lab, asserting a claim for breach of an oral contract for bailment. Defendant, the Board of Governors of the Colorado State University System (CSU) filed a motion to dismiss Foster’s claim for breach of an oral bailment contract based on immunity under the Colorado Governmental Immunity Act (CGIA), which the trial court denied.

The sole issue on appeal was whether Foster’s claim for damages for the destruction of her bailed property lies in tort or could lie in tort for purposes of the CGIA. The bailee’s liability will depend on whether the bailor establishes that the bailee acted negligently regardless of whether such a claim is pleaded in contract or in tort. Here, the allegations in Foster’s complaint sound in tort or could support a tort claim.

First, though Foster has phrased her claim as one for breach of contract, CSU’s liability for damage to the bailed goods would depend on proof of negligence. Second, the duty CSU allegedly breached is one implied by law—a duty to act with reasonable care—not one that arises from promises made between the parties. Third, an action against a bailee for damage to or destruction of bailed property can be pleaded alternatively in contract or in tort. Therefore, because Foster’s claim for the destruction of her bailed property lies in tort or could lie in tort, it is barred by the CGIA, unless an exception to immunity applies. The district court’s order was reversed and the case was remanded to consider and rule on Foster’s assertion that the exception to immunity applies.

Summary and full case available here.

Tenth Circuit: Action to Vacate Arbitration Award Untimely

The Tenth Circuit Court of Appeals published its opinion in United Food & Commercial Workers International Union v. King Soopers on Friday, February 28, 2014.

The United Food and Commercial Workers International Union, Local No. 7 (the Union) sued King Soopers, Inc. under § 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185, to enforce an arbitration award. The United States District Court for the District of Colorado ruled that the award did not draw its essence from the Union’s collective bargaining agreement (CBA) with King Soopers and refused to enforce it.  The Union appealed.

The Tenth Circuit reversed. This appeal was controlled by the court’s decision in Babcock & Wilcox, 826 F.2d 962. Although King Soopers could have brought a timely action to vacate the award on the ground adopted by the district court, it did not do so. The passing of the 90-day time limitation period for an action to vacate an arbitration award completely barred, in a subsequent confirmation proceeding, the raising of defenses that could have been raised as grounds to vacate the award. King Soopers could therefore not raise that defense against the Union’s action to enforce the award. For the same reason, the court also held that King Soopers could not raise the defense that the arbitrator lacked authority to impose a remedy.

Based on the untimelinessof King Soopers’ challenge, the Tenth Circuit REVERSED with instructions to enforce the award.

Tenth Circuit: Unpublished Opinions, 2/28/2014

On Friday, February 28, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Arriola-Morales v. Holder

United States v. Sim

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