February 18, 2019

Archives for May 19, 2014

Bills Regarding Provision of Social Workers for Juveniles, Annual Reports for Public Benefit Corporations, and More Signed

Governor Hickenlooper continues to sign legislation that cleared both houses this 2014 Legislative Session. He signed bills on Wednesday, May 14, 2014; Thursday, May 15; Friday, May 16; and Saturday, May 17. To date, he has signed 248 bills and vetoed two. Some of the bills signed each day last week are summarized here.

Wednesday, May 14, 2014

  • SB 14-164Concerning Aerial Firefighting Efforts Through the Division of Fire Prevention and Control in the Department of Public Safety, and, in Connection Therewith, Implementing Recommendations Made by the Division Regarding the Colorado Firefighting Air Corps, by Sens. Morgan Carroll & Steve King and Reps. Bob Gardner & Mike McLachlan. The bill directs the Division of Fire Prevention to maximize its aerial firefighting capabilities.
  • 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, by Rep. Millie Hamner and Sen. George Rivera. The bill renames “prescribed burn manager” as “certified burner” and removes persons with this credential from the list of persons who may attend a prescribed burn in a supervisory role.
  • HB 14-1023 – Concerning the Provision of Social Workers to Juveniles, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Pete Lee and Sen. Jessie Ulibarri. The bill allows
    the Office of the State Public Defender to hire social workers to assist in juvenile defense cases, and specifies that any reports generated are to be considered evidence in the case.

Thursday, May 15, 2014

  • SB 14-073 – Concerning the State Income Tax Credit for the Environmental Remediation of Contaminated Land in the State, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Cheri Jahn and Rep. Cheri Gerou. The bill creates an income tax credit for individuals, organizations, and “qualified entities” that perform any approved environmental remediation of contaminated property.
  • SB 14-092 – Concerning the Creation of the Crime of Insurance Fraud, and, in Connection Therewith, Making an Appropriation, by Sen. George Rivera and Rep. Angela Williams. The bill classifies insurance fraud as a crime and identifies fraudulent actions for insurance claimants, agents, and brokers.
  • SB 14-156 – Concerning a Requirement that a Public Benefit Corporation file an Annual Report, by Sens. John Kefalas & Rollie Heath and Rep. Pete Lee. The bill requires Public Benefit Corporations to file annual reports that discuss the ways in which the corporation has promoted its specified public benefits and that assess its overall social and environmental performance against a third-party standard.
  • HB 14-1044 – Concerning Consequences for a Parolee who Tampers with an Electronic Monitoring Device that the Parolee is Required to Wear as a Condition of Parole, by Rep. Timothy Dore and Sen. Lois Tochtrop. The bill provides that if a parolee tampers with an electronic monitoring device, he or she is subject to immediate warrantless arrest.
  • HB 14-1144 – Concerning Measures to Improve the Performance of District Attorneys, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Bob Gardner and Sen. Mike Johnston. The bill provides for cost-sharing of salaries for entry-level deputy district attorneys.
  • HB 14-1347 – Concerning Statutorily Established Time Periods that are Multiples of Seven Days, by Rep. Lois Court and Sen. Linda Newell. The bill continues to revise statutes so that statutorily established time periods conform to the “rule of seven.”
  • HB 14-1353 – Concerning Powers of Appointment, by Rep. Bob Gardner and Sen. Mike Johnston. The bill creates the Uniform Powers of Appointment Act (act), as recommended by the Colorado Commission on Uniform State Laws.

Friday, May 16, 2014

  • SB 14-011 – Concerning the Colorado Energy Research Authority, by Sen. Rollie Heath and Rep. Dickey Lee Hullinghorst. The bill changes the name of the Colorado Renewable Research Authority to the Colorado
    Energy Research Authority and creates a cash fund.
  • HB 14-1005 – Concerning Clarification of the Requirements Applicable to a Change of Point of Water Diversion, by Reps. Jerry Sonnenberg & Dave Young and Sens. Kevin Lundberg & John Kefalas. The bill clarifies that if a ditch owner relocates a headgate to a new surface point of diversion, as long as the relocation does not physically interfere with the complete use of or enjoyment of other water rights, the owner does not need to file a change of water right application.

Saturday, May 17, 2014

  • HB 14-1001 – Concerning the Creation of a Property Tax Reimbursement for a Taxpayer that Owes Property Tax on Property that has been Destroyed by a Natural Cause, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Jonathan Singer and Sen. Jeanne Nicholson. The bill creates a reimbursement program for property taxes paid on a property that has been destroyed by a natural disaster.
  • HB 14-1159 – Concerning a State Sales and Use Tax Exemption for Components used in Biogas Production Systems, by Reps. Angela Young & Timothy Dore and Sens. Gail Schwartz & Larry Crowder. The bill creates a sales and use tax exemption for equipment used to capture biogas to be used as a renewable natural gas or the equipment used to turn biogas into electricity.
  • HB 14-1281 – Concerning the Allowance for Terminally Ill Patients to have Access to Investigational Products that have not been Approved by the Federal Food and Drug Administration that Other Patients have Access to when they Participate in Clinical Trials, by Reps. Joann Ginal & Janak Joshi and Sens. George Rivera & Irene Aguilar. The bill allows terminally ill patients to have access to experimental drugs without participating in a clinical trial.
  • HB 14-1349 – Concerning the Creation of an Exemption from Property Taxes for Qualifying Business Entities Controlled by Nonprofit Organizations that are Formed for the Purpose of Qualifying for Federal Tax Credits, by Reps. Dickey Lee Hullinghorst & Brian DelGrosso and Sen. Rollie Heath. The bill broadens eligibility for nonprofits for federal tax credits to LLCs and limited partnerships.

For a list of Governor Hickenlooper’s 2014 legislative decisions, click here.

Colorado Supreme Court: Parking Lot Adjacent to Public Golf Course Qualifies as Public Facility for CGIA Purposes

The Colorado Supreme Court issued its opinion in Daniel v. City of Colorado Springs on Monday, May 19, 2014.

Governmental Immunity—CRS § 24-10-106(1)(e).

In this tort case, the Supreme Court interpreted the Colorado Governmental Immunity Act’s “recreation area waiver,” CRS §24-10-106(1)(e). The Court held that a parking lot serving a public golf course can qualify as a “public facility” under the recreation area waiver. Accordingly, the court of appeals erred when it categorically held that such a parking lot does not qualify as a “public facility,” and the Court reversed the court of appeals’ holding.

The Court further held that a three-step analysis should be employed to determine whether a public facility is “located in” a “recreation area” for purposes of the recreation area waiver. First, a court examines the underlying piece of contiguous public property to identify the “putative recreation area.” Second, a court should determine whether the public entity’s primary purpose in building or maintaining that area was the promotion of recreation. Third, a court should determine whether the public facility at issue was located within the boundaries of that area. Applying this three-step analysis to the case at bar, the Court held that the golf course grounds—which include the golf course’s parking lot—is a “recreation area” and that the parking lot is “located in” this area. The Court remanded the case to the trial court for further fact-finding with regard to the remaining requirements of the recreation area waiver.

Summary and full case available here.

Colorado Supreme Court: Colorado Governmental Immunity Act’s Waiver Provisions Are Not Mutually Exclusive

The Colorado Supreme Court issued its opinion in Young v. Brighton School District 27J on Monday, May 19, 2014.

Governmental Immunity—CRS § 24-10-106(1)(a)–(h).

In this tort case, the Supreme Court held that the Colorado Governmental Immunity Act’s waiver provisions, listed in CRS § 24-10-106(1)(a)–(h), are not mutually exclusive. Rather, each waiver provides an alternative avenue for exposing a public entity to possible tort liability. Thus, the court of appeals erred when it held that the waiver provisions were mutually exclusive and the Court reversed this aspect of the court of appeals’ holding.

The Court also interpreted the Colorado Governmental Immunity Act’s “recreation area waiver,” codified at CRS §24-10-106(1)(e). It held that an injury that occurred on a walkway adjacent to a public school’s playground does not trigger the application of the recreation area waiver, because the walkway at issue did not qualify as a “public facility.” Accordingly, the Court affirmed the court of appeals’ holding that the public school district did not waive its immunity.

Summary and full case available here.

Colorado Supreme Court: Entire Collection of Playground Equipment on School Property Qualifies as Public Facility for Purposes of CGIA

The Colorado Supreme Court issued its opinion in St. Vrain Valley School District RE-1J v. A.R.L. on Monday, May 19, 2014.

Governmental Immunity—CRS § 24-10-106(1)(e).

In this tort case, the Supreme Court interpreted the Colorado Governmental Immunity Act’s “recreation area waiver,” CRS § 24-10-106(1)(e). The Court held that a collection of public school playground equipment, considered in its entirety, qualifies as a “public facility” under the recreation area waiver. Accordingly, the court of appeals erred when it held that an individual piece of playground equipment, in and of itself, qualified as a “public facility.” The Court thus affirmed the court of appeals’ holding, albeit for different reasons.

Applying the three-step analysis from Daniel v. City of Colorado Springs, 2014 CO 34, ¶ 23, the Court also held that the public facility (the playground equipment) is “located in” the “recreation area” of the playground. It remanded the case to the trial court for further fact finding with regard to the remaining requirements of the recreation area waiver.

Summary and full case available here.

Tenth Circuit: Defendant Lacked Standing to Challenge Fruits of Someone Else’s Poisonous Tree

The Tenth Circuit Court of Appeals issued its opinion in United States v. Davis on Wednesday, May 7, 2014.

Defendant Davis was convicted by a jury of robbery, use of a firearm during a robbery, and being a felon in possession of a firearm. He was sentenced to a total 360 months’ imprisonment with three years’ supervised release. Davis appealed his conviction on three assertions of error: (1) the denial of his motion to suppress evidence seized from a car in which he was a passenger, (2) the jury instructions insofar as they allowed the jury to convict him of aiding and abetting without the requisite knowledge or participation, and (3) sufficiency of the evidence concerning a substantial effect on interstate commerce. He eventually conceded the third point because of circuit precedent. The Tenth Circuit affirmed on all points.

Davis was a passenger in a car driven by co-defendant Baker that was stopped after the robbery of a Radio Shack in Overland Park, Kansas. Police had been investigating a string of armed robberies and suspected that Baker’s girlfriend’s car was being used in the robberies. A GPS tracking device was installed on Baker’s girlfriend’s car without a warrant while it was parked at an apartment. This GPS tracking device and other evidence led to the arrest of Davis and Baker after the Radio Shack robbery. During police interviews, Davis confessed that he knew Baker intended to rob the Radio Shack and he saw Baker pull a gun from his waistband prior to entering the car after the robbery. During trial, Davis moved to suppress evidence found in the car, citing a violation of his Fourth Amendment rights. The government proceeded in trial on the theory that Davis robbed the Radio Shack at gunpoint, but noted that even if he had waited in the car as set forth by the defense, there was sufficient evidence of his aiding and abetting the robbery to support a conviction.

As to the first point of error, the Tenth Circuit examined the “fruit of the poisonous tree” doctrine and noted that in order to have standing to suppress the evidence, Davis must prove that his Fourth Amendment rights were violated. Because Davis did not own or regularly drive the car to which the GPS device was attached, he could have no expectation of privacy in the car. The Tenth Circuit noted that “Because the poisonous tree was planted in someone else’s orchard, Mr. Davis lacks standing to challenge its fruits.”

The second point of error was not properly preserved for review in the trial court, and the Tenth Circuit examined the contention for plain error. It found none. The general aider-and-abetter instruction given the jury adequately informed of the requirement that Davis have advance knowledge of Baker’s intent to commit a crime, and that was enough to survive a plain error challenge. The judgment of the district court was affirmed.

Tenth Circuit: Unpublished Opinions, 5/19/2014

On Monday, May 19, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Lopez v. Roark

United States v. Chitty

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

Colorado Supreme Court: Announcement Sheet, 5/19/2014

On Monday, May 19, 2014, the Colorado Supreme Court issued five published opinions.

Young v. Brighton School District 27J

St. Vrain Valley School District RE-1J v. A.R.L.

Daniel v. City of Colorado Springs

In re Board of County Commissioners of Teller County

People v. Webb

Summaries of 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.

Tenth Circuit: Unpublished Opinions, 5/16/2014

On Friday, May 16, 2014, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Ddungu v. Holder

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