April 24, 2019

Archives for June 5, 2015

Traffic Camera Bills Vetoed; PERA Reduction, School Safety, and More Bills Signed

On Wednesday, June 3, 2015, Governor Hickenlooper signed six bills into law and vetoed two bills. To date, he has signed 296 bills into law and vetoed two bills. The bills on which he took legislative action Wednesday are summarized here.

Signed

  • HB 15-1391 – Concerning an Adjustment to the Total Employer Contribution Rate of the Denver Public Schools Division of the Public Employees’ Retirement Association in Connection with the Equalization Status of the Association’s Denver Public Schools Division with the Association’s School Division as Required by the Merger of the Denver Public Schools Retirement System with the Association, by Reps. Lois Court & Jim Wilson and Sen. Pat Steadman. The bill reduces the employer PERA contribution rate, effective January 1, 2015, and allows adjustment of the employer contribution rate every five years.
  • SB 15-213Concerning the Limited Waiver of Governmental Immunity for Claims Involving Public Schools for Injuries Resulting from Incidents of School Violence, by Sens. Bill Cadman & Mark Scheffel and Reps. Dickey Lee Hullinghorst & Crisanta Duran. The bill allows schools and school districts to be held liable if they fail to exercise reasonable care in protecting students and staff from reasonably foreseeable acts of violence.
  • SB 15-214 – Concerning Creating a Legislative Committee on Safety in Schools, and, in Connection Therewith, Making an Appropriation, by Sens. Mark Scheffel & Bill Cadman and Reps. Crisanta Duran & Dickey Lee Hullinghorst. The bill establishes the School Safety and Youth Mental Health Committee to study issues related to school safety and prevention of threats to safety.
  • SB 15-221 – Concerning Public Transit Officers, by Sen. John Cooke and Reps. Jessie Danielson & Kevin Priola. The bill clarifies that a public transit officer who is classified as a peace officer through his or her job is a peace officer at all times, even when off-duty.
  • HB 15-1359 – Concerning the Creation of the Achieving a Better Life Experience (ABLE) Savings Program for Individuals with Disabilities, by Reps. Jessie Danielson & Lois Landgraf and Sens. John Kefalas & Beth Martinez Humenik. The bill allows the Department of Higher Education to create the ABLE Savings Program for people with disabilities so they may create accounts exempt from federal taxable income.
  • SB 15-288Concerning the Compensation Paid to Certain Public Officials, by Sens. Randy Baumgardner & Mary Hodge and Reps. Millie Hamner & Bob Rankin. The bill aligns the salaries of legislative branch officials with the salaries of judicial branch officials.

Vetoed

  • SB 15-276 – Concerning the Elimination of the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement, by Sens. David Balmer & Morgan Carroll and Reps. Kevin Van Winkle & Stephen Humphrey. The bill would have prohibited the issuance of citations from traffic cameras with specific exceptions for toll roads and toll highways.
  • HB 15-1098 – Concerning the Elimination of the Use of Automated Surveillance Camera Vehicle Identification Systems for Traffic Law Enforcement, by Reps. Kevin Van Winkle & Steve Lebsock and Sen. Tim Neville. The bill would have required local governments to obtain voter approval before utilizing red light cameras, and would have required existing programs to receive voter approval in 2017 in order to continue.

In addition to the bills signed Wednesday, Governor Hickenlooper signed six bills into law on Thursday, bringing the total number of signed bills to 302. The bills signed Thursday are summarized below.

  • HB 15-1367 – Concerning Retail Marijuana Taxes, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Pat Steadman. The bill refers a ballot issue to voters regarding whether the state may retain and spend revenue created from retail marijuana excise taxes.
  • HB 15-1249 – Concerning Amendments to the Fees Associated with Water Pollution Control, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. KC Becker and Sen. Mary Hodge. The bill recodifies fees for clean water and drinking water programs, and adds fees for pesticide application activities and CDPHE certifications.
  • HB 15-1341 – Concerning Increasing the Penalty from a Class 6 Felony to a Class 5 Felony for Sexual Exploitation of a Child by Possession of Sexually Exploitative Material, and, in Connection Therewith, Making an Appropriation, by Reps. Kathleen Conti & Rhonda Fields and Sens. John Cooke & Michael Johnston. The bill increases the penalty for possession of certain sexually exploitative material and modifies terms concerning electronic media.
  • HB 15-1033 – Concerning Long-Term Strategies to Address Colorado’s Aging Population, and, in Connection Therewith, Creating a Strategic Action Planning Group to Develop a Comprehensive, Long-Term Action Plan for Colorado’s Aging Population and Making an Appropriation, by Rep. Dianne Primavera and Sen. Larry Crowder. The bill creates a strategic planning group to study issues facing Coloradoans age 50 and older, and outlines specific study areas.
  • HB 15-1335 – Concerning Access to Personal Records Relating to a Person’s Family History, by Reps. Lori Saine & Jonathan Singer and Sens. Vicki Marble & Linda Newell. The bill allows an adult adoptee to obtain access to a non-certified copy of an original birth certificate and amended birth certificates of adult siblings or half-siblings.
  • SB 15-206 – Concerning Phased Conservation Easement Donations for Conservation Easements Donated On or After January 1, 2015, and, in Connection Therewith, Lowering Transaction Costs for Agricultural Producers, Facilitating Endangered Species Mitigation, and Making an Appropriation, by Sens. Ellen Roberts & Mary Hodge and Reps. Alec Garnett & Jon Keyser. The bill increases the credit awarded for the first $100,000 of a conservation easement tax credit and also increases the maximum credit for a single donor.

Vetoed

  • HB 15-1390 – Concerning an Increase in the Allowable Finance Charge for Certain Consumer Credit Transactions, by Reps. Jovan Melton & Jack Tate and Sens. Chris Holbert & Cheri Jahn. The bill would have increased the unpaid balance limit for current tiered maximum finance charges allowed on certain supervised loans and consumer credit sales.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Application Period Open for Teller County Court Vacancy

On Thursday, June 4, 2015, the Colorado State Judicial Branch announced a vacancy on the Teller County Court. The vacancy will be created by the appointment of Hon. Linda Billings-Vela to the district court bench in the Fourth Judicial District, effective July 1, 2015.

The Fourth Judicial District Nominating Commission will meet on July 23, 2015, to select nominees for the governor’s consideration. Eligible applicants must be qualified electors of Teller County and must have graduated high school or attained the equivalent. Applications must be received no later than 4 p.m. on July 8, 2015, and anyone wishing to nominate another must do so no later than 4 p.m. on July 1, 2015. Application forms are available from the ex officio chair of the nominating commission, Justice Allison Eid, and are also available on the State Judicial website.

For more information about the vacancy, click here.

Tenth Circuit: SORNA is a Proper Exercise of Congress’s Commerce Clause Power

The Tenth Circuit Court of Appeals issued its opinion in United States v. White on Monday, April 6, 2015.

James White took indecent liberties with the 7-year-old daughter of his girlfriend in North Carolina in 2005. When the Sex Offender Registration and Notification Act (SORNA) was implemented in 2007, it applied to all convictions, including those that occurred prior to its passage. In 2013, Mr. White moved from Oklahoma to Texas without updating his SORNA registration or registering in Texas. He was charged in Oklahoma with failing to register as a sex offender. Mr. White moved to dismiss the indictment, arguing that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. The district court denied his motion, and Mr. White entered a conditional guilty plea, reserving his right to appeal the denial of the motion to dismiss and his sentence.

The district court adopted the probation office’s Presentence Investigation Report (PSR), which treated Mr. White as a Tier III offender and assigned an offense level of 13 after credits. His sentencing range was 18 to 24 months, and the district court sentenced him to 18 months, overruling his objection to the tier classification. The district court also imposed special conditions of supervised release, including prohibiting Mr. White from being at a residence where any person under the age of 18 reside without prior approval from the probation office and requiring a responsible adult who was aware of Mr. White’s history to be present at all such approved visits. Mr. White timely appealed, reiterating his argument that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. Mr. White also appealed his sentence, arguing he was incorrectly classified as a Tier III offender and challenging the special conditions.

The Tenth Circuit first addressed the Commerce Clause argument, noting it rejected a similar argument in United States v. Hinckley. Mr. White argued that Hinckley was wrongly decided and that it was superseded by the Supreme Court in National Federation of Independent Businesses v. Sebelius (NFIB). The Tenth Circuit first noted that in Hinckley it held the third prong of the Commerce Clause was unnecessary to determine SORNA’s constitutionality since it was confirmed by the first two prongs. Next, the Tenth Circuit examined NFIB in detail, distinguishing its holding in Hinckley because NFIB discussed only the third prong of the Commerce Clause. The Tenth Circuit found that SORNA is a proper exercise of Congress’s Commerce Clause power.

Turning next to Mr. White’s argument that SORNA violated the Ex Post Facto Clause, the Tenth Circuit similarly disagreed, relying on prior Tenth Circuit precedent in United States v. Lawrance, which squarely addressed the same issue. Lawrance upheld SORNA because it is a regulatory statute and criminal penalties apply only for future conduct, not retroactively. The Tenth Circuit then turned to Mr. White’s argument that SORNA violates the Tenth Amendment by directing state officials to implement a federally mandated program. The Tenth Circuit found no constitutional violation, because states retain the authority to opt-out of regulation under SORNA even if they must forego federal funding to do so.

Mr. White’s fourth contention on appeal averred that he was wrongly classified as a Tier III offender and therefore his sentence is procedurally unreasonable. The Tenth Circuit agreed. The Tenth Circuit found the district court should have applied a categorical approach in order to determine Mr. White’s sentencing tier, but it instead applied a circumstance-specific approach, rendering Mr. White’s sentence procedurally unreasonable and requiring reversal. On remand, the Tenth Circuit directed the district court to classify Mr. White as a Tier I offender. The Tenth Circuit addressed Mr. White’s arguments related to the special conditions in order to guide the district court on remand, and noted that further findings were necessary to determine whether Mr. White had a parental or parental-like relationship with his minor grandchildren and nieces that would require express findings of compelling circumstances.

The Tenth Circuit affirmed the district court’s denial of Mr. White’s motion to dismiss but reversed his sentence, remanding for further findings.

Tenth Circuit: Defendant Must Have Direct Stake in Outcome of Litigation to Establish Standing

The Tenth Circuit Court of Appeals issued its opinion in Greenbaum v. Bailey on Tuesday, March 31, 2015.

In 2007, the Albuquerque city charter was amended to prohibit campaign contributions from businesses. On May 6, 2013, plaintiffs Greenbaum and three other individuals filed a civil rights complaint against Bailey in her official capacity as Clerk for the City of Albuquerque and against the City Board of Ethics and Campaign Practices, alleging the amendment prohibiting campaign contributions violated the First and Fourteenth Amendments. Plaintiffs sought declaratory and injunctive relief, nominal damages, fees, and costs. The Committee to Elect Pete Dinelli Mayor (“committee”) was granted leave to file a complaint in intervention seeking declaratory relief that the amendment was constitutional. The committee also filed a brief in support of Bailey’s motion to dismiss, arguing that the plaintiffs (all of whom are individuals) lacked standing to challenge the amendment. Shortly thereafter, Giant Cab Co. moved to intervene as plaintiff and the four original individual plaintiffs were dismissed, leaving Giant Cab as the only plaintiff.

The district court ruled the city charter’s amendment violates the First Amendment and entered judgment in favor of Giant Cab. Bailey and the ethics board declined to appeal, but the committee appealed, alleging the amendment is constitutional because it is closely drawn to further government interests in preventing quid pro quo corruption, the appearance of corruption, and circumvention of individual campaign contribution limits.

In its appellate brief, Giant Cab asserted the committee lacked standing and moved to dismiss the appeal. The Tenth Circuit requested further briefing on the standing issue, and noted that standing can either be piggybacked or individualized, but because Bailey and the board did not appeal, the committee’s standing for the appeal must be evaluated on an individual basis. Following the recent Supreme Court decision in Hollingsworth v. Perry, the Tenth Circuit declined to address the merits of the committee’s appeal, finding instead that the committee had no direct stake in the outcome of the litigation, and found compelling Giant Cab’s assertion that the committee’s standing was no different than that of the general public. The Tenth Circuit found the committee lacked standing to pursue the appeal, and granted Giant Cab’s motion to dismiss.

Colorado Court of Appeals: Announcement Sheet, 6/4/2015

On Thursday, June 4, 2015, the Colorado Court of Appeals issued five published opinions and 18 unpublished opinions.

Denver Classroom Teachers Association v. City & County of Denver School District No. 1

Kinder Morgan CO2 Company, L.P. v. Montezuma County Board of Commissioners

Tomar Development Inc. v. Friend

DeJean v. Grosz

People v. Fallis

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, 6/4/2015

On Thursday, June 4, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Wilson

Doe v. Board of County Commissioners of Payne County, Oklahoma

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