August 24, 2019

Archives for March 14, 2016

Governor Hickenlooper Signs Appropriations Bills and Marijuana Bonding Repeal Bill

On Friday, March 11, 2016, Governor Hickenlooper signed 15 bills into law. To date, he has signed 17 bills in the 2016 legislative session. Many of the bills signed Friday were supplemental appropriations bills, and the governor also signed one bill removing impracticable regulations from the marijuana industry. Links to the bills are available here.

  • HB 16-1041 – Concerning the Removal of Unreasonably Impracticable Financial Requirements Applicable to Marijuana Businesses that are Required to be Licensed, by Rep. Steve Lebsock and Sen. Chris Holbert. The bill removes the surety bonding requirement for licensure of medical marijuana and retail marijuana businesses.

The following bills supplement the fiscal year appropriations to the respective departments.

  • HB 16-1237 – Concerning a Supplemental Appropriation to the Department of Agriculture, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1238 – Concerning a Supplemental Appropriation to the Department of Corrections, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1239 – Concerning a Supplemental Appropriation to the Offices of the Governor, Lieutenant Governor, and State Planning and Budgeting, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1240 – Concerning a Supplemental Appropriation to the Department of Health Care Policy and Financing, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1242 – Concerning a Supplemental Appropriation to the Department of Human Services, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1243 – Concerning a Supplemental Appropriation to the Judicial Department, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1244 – Concerning a Supplemental Appropriation to the Department of Law, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1245 – Concerning a Supplemental Appropriation to the Department of Military Affairs, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1246 – Concerning a Supplemental Appropriation to the Department of Personnel, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1248 – Concerning a Supplemental Appropriation to the Department of Public Safety, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1249 – Concerning a Supplemental Appropriation to the Department of Regulatory Agencies, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1250 – Concerning a Supplemental Appropriation to the Department of Revenue, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1251 – Concerning a Supplemental Appropriation to the Department of the Treasury, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1252 – Concerning Funding for Capital Construction, and Making Supplemental Appropriations in Connection Therewith, by Rep. Millie Hamner and Sen. Kent Lambert.

For a list of all of Governor Hickenlooper’s 2016 legislative decisions, click here.

SB 16-040: Expanding Definition of “Owner” of Medical or Retail Marijuana Business

On January 19, 2016, Sen. Chris Holbert and Rep. Dan Pabon introduced SB 16-040Concerning Changes to the Requirements For Owners of A Licensed Marijuana Business. It was introduced into the Senate Business, Labor & Technology Committee and has since passed out of that committee and been referred to the Appropriations Committee.

This bill includes the definition of “owner”, in the medical and retail marijuana codes, a recipient of a commercially reasonable royalty associated with the use by a licensee of intellectual property and a licensed employee who receives a share of the profits from an employee benefit plan.

Under current law, an owner of a medical or retail marijuana business must have resided in Colorado for at least 2 years prior to applying for a license. The proposed bill would allow an owner to be either a 2-year resident of Colorado or a United States citizen on the date of the application for applications submitted on or after January 1, 2017. Additionally the bill would prohibit an owner from being a publically traded company and would require a controlling interest of the licensees to be Colorado residents and maintain that residency while holding a license.

The bill first proposes to add language to the definition of an “owner” under 12.3 of C.R.S. § 12-43.3-104 Definitions and 12 of C.R.S. § 12-43.4-103. The additional language would define an owner to be “a recipient of a commercially reasonably royalty associated with the use by a licensee of intellectual property; or a licensed employee who receives a share of the profits from an employee benefit plan.”

Second, the bill proposes to add Subsection XXI, which states “the parameters for a commercially reasonable royalty,” to C.R.S. § 12-43.3-202(2)(a) – Powers and Duties of State Licensing Authority. The bill proposes to add the same language to C.R.S. § 12-43.4-202(3)(a)(XVII).

Third, the bill proposes to remove subsection (m) of C.R.S. § 12-43.3-307(1) – Persons Prohibited as Licensees – and add subsection (n) “A publically traded company.” The bill proposes to add the same language to C.R.S. § 12-43.4-306(1)(l).

Additionally, the bill proposes the addition of the residency requirements discussed above under C.R.S. § 12-43.3-307.5 and the addition of the controlling interest language under C.R.S. § 12-43.3-310. The same language has been proposed to be added to C.R.S. § 12-43.4-306.5 and C.R.S. § 12-43.4-309.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

SB 16-014: State Mortgage Loan Originator Laws Amended to Conform to Federal Regulations

On January 13, 2016, Sen. Chris Holbert and Rep. Angela Williams introduced Senate Bill 16-014Concerning the Alignment of State Mortgage Originator Disclosures With Recent Changes in Federal Law. The bill has passed through both houses with amendments and has been sent to the governor.

This bill looks to repeal selected provisions of the Colorado “Mortgage Loan Originator Licensing and Mortgage Company Registration Act” which governs and sets deadlines for disclosures of certain costs and fees. The bill will replace those provisions with cross references to applicable requirements in the federal “Truth in lending Act” and “Real Estate Settlement Procedures Act of 1974.”

First, the bill proposes to repeal Section (1)(a) of C.R.S. § 12-61-914 Written Disclosure of Fees and Costs – Contents – Limits on Fees – Lock-in Agreement Terms – Rules , which would eliminate requirements under Colorado law, and add language directing mortgage loan originator’s requirements to federal law. Specifically, the proposal creates a cross-reference to the federal Truth and Lending Act, the federal Real Estate Settlement Procedures Act of 1974, the federal Equal Opportunity Act, Title V, the federal Home Mortgage Disclosures Act of 1975, the Federal Trade Commission Act of 1914, the federal Telemarketing and Consumer Fraud and Abuse Prevention Act, and various federal statutes.

Second, the bill proposes to repeal Section (1) of C.R.S. 38-40-102 Disclosure of Costs – Statement of Terms of Indebtedness.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Settling Defendant Has No Interest in Attorney Fee Award from Class Coffers

The Tenth Circuit Court of Appeals issued its opinion in Tennille v. Western Union Co. on Tuesday, November 17, 2015.

A class of plaintiffs challenged Western Union’s business practice of retaining funds from failed wire transfers and collecting interest on the failed transfer moneys without informing the parties to the transfer of its failure. After years of litigation, the class reached a settlement wherein Western Union would deposit the unredeemed customer money into a class settlement fund (CSF), less administrative fees, from which class members could receive a refund. Counsel for the plaintiff class then sought attorney fees, requesting 30% of the $135 million in the CSF. Western Union objected, and the district court referred the matter to a magistrate judge.

The magistrate judge determined that Western Union had no right to object to the attorney fee award but addressed many of the issues raised by Western Union in considering the reasonableness of the attorney fee award. The magistrate judge agreed with Western Union’s central contention that the money in the CSF did not represent the benefit counsel obtained for the class because that money belonged to class members. The magistrate judge calculated the actual benefit to the class as $65 million and recommended that the attorney be awarded 35% of that common fund. Both parties objected to the magistrate judge’s recommendation.

The district court also expressed doubts about Western Union’s standing to challenge the attorney fee award, but it allowed Western Union to participate in the objection hearing. The district court ultimately determined that the CSF was the value to the plaintiffs and awarded 30% of the CSF to class counsel as attorney fees. Western Union appealed.

The Tenth Circuit first addressed class counsel’s argument that Western Union lacked standing to bring the appeal. The Tenth Circuit noted that generally, settling defendants in class actions lack standing to challenge fee awards when those fees are to be paid from the class recovery. Western Union argued it would be injured in this case because of its “reversionary interest” in the CSF. The terms of the settlement provided that if there were moneys left in the CSF after all class members who came forward had been paid, they would escheat to the states in a cy pres fund, and then if any states challenged their share of the moneys, that state’s pro rata share would be deposited in a third fund from which Western Union would be entitled to claim actual costs and fees associated with defending the states’ claims. Western Union claimed that, because of the potential for it to receive reimbursement through the third fund, it had an interest in the attorney fee award from the CSF. The Tenth Circuit disagreed. The Tenth Circuit noted that Western Union has never argued that the moneys in the CSF belonged to anyone but the class members, and thus it has no interest that would be invaded by diminution in the CSF. The Tenth Circuit found that Western Union’s interest in the third reversionary was too attenuated to confer a legally protectable interest.

The Tenth Circuit affirmed the district court’s attorney fee award.

Tenth Circuit: Taser is “Dangerous Weapon” Because it is Capable of Causing Serious Bodily Injury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Quiver on Tuesday, November 17, 2015.

Delray Quiver and another man were intoxicated and creating a disturbance at their grandmother’s house on an Indian reservation. The grandmother called the police and Officer Friday was dispatched to the scene. The grandmother told Officer Friday that she wanted the men arrested and removed, so he tried to take them outside. However, Quiver was uncooperative, impeding Officer Friday from escorting him by the arm. Quiver tried to walk away from Officer Friday toward the road. Officer Friday tripped Quiver and pushed him face-down in the snow, and removed the prong-mode cartridge from his taser so that it could only be used in drive-stun mode. Quiver punched Officer Friday in the face, breaking his glasses, and wrestled the taser from him. Quiver tased Officer Friday on the thigh, leaving two burn marks from the prongs. The two engaged in a fistfight, which Officer Friday eventually won, and Officer Friday regained control of his taser. After arresting Quiver, Officer Friday sought medical treatment for both himself and Quiver.

Quiver pleaded guilty to forcibly assaulting, resisting, and injuring Officer Friday while he performed official duties. The probation officer recommended a four-level enhancement for use of a dangerous weapon during the assault, which the court applied. Quiver’s resulting Guidelines range was 92 to 115 months’ imprisonment, but the court varied downward to a 70-month sentence based on its view of the danger of tasers as opposed to firearms. Quiver appealed the sentence enhancement.

The Tenth Circuit evaluated the four definitions of “dangerous weapon” contained in U.S.S.G. §§ 2A2.2(b)(2) and found that the first definition applied. The Tenth Circuit found no question that a taser qualifies as a dangerous weapon, even in drive-stun mode, because it is “capable of . . . inflicting serious bodily injury,” which includes injuries causing extreme pain. The Tenth Circuit pointed out that the two burn marks on Officer Friday’s thigh were evidence of the taser’s capability of causing serious bodily injury. The Tenth Circuit rejected Quiver’s argument that the dangerous weapon must actually cause serious bodily injury, noting that there is an additional enhancement for that situation.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 3/11/2016

On Friday, March 11, 2016, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

United States v. Jimenez

Nunn v. Relich

Jennings v. Dowling

Starr v. Kober

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