April 22, 2019

Archives for March 18, 2016

e-Legislative Report: Week of March 14, 2016

Welcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers 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 from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings—please RSVP if you are interested.

LPC Meeting held Friday, February 26, 2016

There was no meeting of the LPC on March 4. We will be considering a number of bills this coming week, but here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1165 – Colorado Child Support Commission Statutory Changes
The LPC voted to seek an amendment to this bill, which was subsequently added in the House before the bill was passed on to the Senate. The amendments offered clarify the calculations of parenting time in certain circumstances

HB 16-1275 – Taxation Of Corporate Income Sheltered In Tax Haven
The LPC voted to oppose this bill because of vague language that could result in unnecessary litigation and an additional burden on the judiciary.

HB 16-1270 – Security Interest Owner’s Interest In Business Entity
This is the first of a package of four business law clean-up bills from the Business Law Section. It aims to protect the security interest of owners and secure the “pick a partner” provision in Colorado law for all types of business entities.

SB 16-131 – Overseeing Fiduciaries’ Management Of Assets
This bill, written by members of the Trust & Estate and Elder Law sections, clarifies provisions in the Colorado Probate Code regarding a person’s right to counsel and the removal of a fiduciary.

SB 16-133 – Transfer Of Property Rights At Death
This bill clarifies the process and rights associated with property transfers after death by clarifying existing law and providing that the Colorado Probate Code prevails over the Uniform Power of Appointment Act where the Colorado Probate Code is better suited for the state’s probate process.

Bills that the LPC is monitoring, watching or working on can be found here.

New Bills of Interest

HB 16-1339 – Agricultural Property Foreclosure
Current law establishes the initial date of sale of foreclosed property based on who is selling the property and whether the property is agricultural or nonagricultural. Property is nonagricultural unless all of the property is considered agricultural. The bill extends the provisions relating to agricultural property to property in which any part is agricultural.

SB 16-148 – Require Civics Test Before Graduating from High School
Under existing law, each high school student must satisfactorily complete a civics course as a condition of high school graduation. In connection with this requirement, the bill requires each student who is enrolled in ninth grade during or after the 2016-17 school year to correctly answer, before graduating from high school, at least 60 questions from the civics portion of the naturalization test (test) used by the United States citizenship and immigration services. The school district, charter school, or school operated by a board of cooperative services (local education provider) that enrolls the student may allow the student to take the test on multiple occasions while enrolled in ninth through twelfth grade and, if necessary, to repeat the test until the student correctly answers at least 60 questions. Once the student correctly answers 60 questions, the local education provider will note the accomplishment on the student’s transcript. A student who has a disability is excused from this requirement, except to the extent it may be required in the student’s individualized education program. The superintendent or principal of a local education provider may waive the requirement for a student who meets all of the other graduation requirements and demonstrates the existence of extraordinary circumstances that justify the waiver. Each local education provider has complete flexibility in determining the manner of delivering the test and may incorporate the test into its existing curriculum. A local education provider shall not use the results of the test in measuring educator effectiveness.

SB 16-150 – Marriages By Individuals In Civil Unions
The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who entered or who will enter into a civil union after the passage of the bill. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same two parties. The executive director of the Department of Public Health and Environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between two individuals who are the same sex. The bill states that a civil union license and a civil union certificate do not constitute evidence of the parties’ intent to create a common law marriage. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in the state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act.” Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act.” If a civil union is merged into a marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2016, to include a person who, while married, marries, enters into a civil union, or cohabits in the state with another person not his or her spouse and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in the state with another person not his or her civil union partner. mmittees of the Bar Association.

Governor Signs TILA/RESPA Bill, DOLA Election Results Bill, and More

On Wednesday, March 16, 2016, Governor Hickenlooper signed five bills into law. To date, he has signed 23 bills this legislative session. Links to the bills signed Wednesday are available here.

  • HB 16-1012Concerning a Requirement that a Municipal Clerk File a Copy of Each Statement of Election Results with the Division of Local Government in the Department of Local Affairs Rather than the Secretary of State, by Rep. Su Ryden and Sen. Ray Scott. The bill requires certified statements of local election results to be filed with the Division of Local Government in the Department of Local Affairs, rather than the Secretary of State, and requires the results to be posted on the division website.
  • HB 16-1025 – Concerning Statutory Recognition that an Insurance Policy May be Subject to Renewal by an Admitted Insurer Within the Same Insurance Group as the Insurer that Issued the Insurance Policy, by Rep. Jeni James Arndt and Sen. Jack Tate. The bill clarifies that, when an insurance policy is carried by one of multiple insurance carriers within a group, the policy may be renewed by any member of the group.
  • HB 16-1076 – Concerning the Status of a Retired Architect, by Rep. Millie Hamner and Sen. Jack Tate. The bill allows licensed architects age 65 and older to apply to the Board of Licensure for Architects, Professional Engineers, and Professional Land Surveyors for classification as a retired architect, provided the retired architect pays a fee and ceases to practice. The bill permits reinstatement upon payment of a fee and possible reexamination for competency.
  • SB 16-008 – Concerning the Use of an Off-Highway Vehicle to Cross State Highways Within the Jurisdiction of a Municipality, by Sen. Larry Crowder and Rep. Owen Hill. Under current law, off-highway vehicles may cross state highways except within the jurisdiction of a municipality. The bill gives authority to municipalities to allow off-highway vehicles to cross state highways within their jurisdiction.
  • SB 16-014 – Concerning the Alignment of State Mortgage Originator Disclosure Laws with Recent Changes in Federal Law, by Sen. Chris Holbert and Rep. Angela Williams. The bill aligns state mortgage originator disclosure requirements with federal law by repealing certain statutory provisions and replacing them with references to TILA, RESPA, or other applicable federal laws. The bill also permits future rulemaking by the state Board of Mortgage Loan Originators related to compliance with other statutes and regulations.

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

Colorado Court of Appeals: Post-Marketability Transportation Costs of Oil and Gas Are Deductible if Reasonable

The Colorado Court of Appeals issued its opinion in Lindauer v. Williams Production RMT Co. on Thursday, March 10, 2016.

Oil and Gas Leases—Royalties—Transportation Costs.

In a case of first impression, the Court of Appeals held that costs incurred to transport natural gas to markets beyond the first commercial market do not have to enhance the value of that gas such that actual royalty revenues increase in order to be deductible from royalty payments.

Plaintiffs (lessors) own royalty interests under oil and gas leases for wells operated by Williams Production RMT Company n/k/a WPX Energy Rocky Mountain, LLC (WPX) (lessee). They brought this class action in 2006 challenging WPX’s calculation and payment of royalties. The parties reached a partial settlement agreement in 2008. The reserved claim before the Court was plaintiffs’ assertion that WPX improperly deducted transportation costs incurred beyond the first commercial market when calculating royalties on natural gas.

WPX incurred costs to transport natural gas on lands subject to plaintiffs’ leases from the wellhead to the “tailgate” of the processing plant, where the gas entered a large mainline pipeline. The costs of processing and transporting the gas to the point it reached the tailgate were not deducted from royalties paid to plaintiffs. Although there is a commercial market for gas at or near the tailgate, WPX sold some of the gas in “downstream” markets where higher prices were sometimes available. WPX entered into long-term contracts with pipeline companies to reserve capacity on the mainline pipelines to transport gas from the tailgate to those downstream markets.

The downstream transportation charges involved two charges: (1) a “demand charge” to reserve space on the pipelines, which was paid regardless of whether the pipelines were used to ship gas and was only deducted from royalties in months when gas was shipped; and (2) a “commodity charge,” which was paid by WPX per unit volume actually shipped on the pipelines and was deducted from revenues before paying royalties. The leases were silent as to allocation of these costs.

Plaintiffs argued that to deduct these charges from royalties, WPX had to show enhancement on a month-by-month basis by comparing downstream prices at the point of sale to the price of gas at the tailgate; because actual royalty revenues did not always increase in proportion to the transportation costs, they should not have been deducted in any month in which the additional transportation costs exceeded any increase in royalty revenue achieved from the downstream sales. The district court agreed and found no enhancement of royalties in 35 months during the eight-year period at issue, and based on the price differentials, entered judgment against WPX.

On appeal, WPX argued that the enhancement test does not apply to post-marketability transportation costs and it was error to look at the enhancement on a month-by-month basis instead of over the entire term of the leases. The Court agreed, holding that post-marketability transportation costs are deductible if they are reasonable and that lessees are not required to establish that such costs enhance the value of the gas or increase royalty revenues. Plaintiffs conceded that the costs were reasonable, thus the Court concluded they were deductible.

The judgment was reversed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Report of BAC Must Be Admitted in Affidavit Form to be Considered

The Colorado Court of Appeals issued its opinion in Rowland v. Department of Motor Vehicles on Thursday, March 10, 2016.

Driver’s License Revocation—Blood Alcohol Test—Admissibility of Evidence—Administrative Hearing—Evidentiary Affidavit Requirement.

A police officer pulled Rowland over for driving at inconsistent speeds and weaving. He unsatisfactorily performed several roadside maneuvers and was arrested for driving under the influence. In accordance with the implied consent law, Rowland chose to take a blood test to determine his blood alcohol content (BAC). An EMT drew a blood sample at the police station while an officer watched. Rowland’s BAC was almost twice the legal limit.

The Department of Revenue (department) revoked Rowland’s license for nine months. Rowland requested an administrative hearing during which the officer’s affidavit and testimony and the BAC test report were admitted into evidence. The hearing officer affirmed the revocation. Rowland appealed, and the district court rejected the hearing officer’s conclusion that the BAC test report was properly admitted at the hearing. Nevertheless, the court affirmed based on the record and a finding that the test results, though not the BAC report, were admissible.

On appeal, Rowland argued that the BAC report, which was prepared by a private organization, must comply with the affidavit requirements of CRS § 42-2-126(8)(c). The Court of Appeals agreed, but disagreed that the error in admitting the BAC report necessarily required reversal of the revocation order.

The Court agreed with Rowland that the BAC report was required to be submitted in affidavit form as a condition of its admission at the hearing, and because it was not, it should not have been admitted and relied on to revoke his license. However, the Court did not agree with Rowland that the inadmissibility of the BAC report prohibited the hearing officer from considering its contents as reported in the officer’s affidavit and hearing testimony. CRS § 24-4-105(7) permits a hearing officer to admit sufficiently reliable and trustworthy hearsay evidence in license revocation proceedings as long as the evidence possesses probative value. The BAC test results had probative value, thus the question was whether the test results, as testified to by the arresting officer and in the officer’s affidavit, were sufficiently reliable and trustworthy to permit their consideration by the hearing officer. The Court found they were.

The Court also disagreed with Rowland’s argument that consideration of the test results when the BAC test report itself was inadmissible circumvents the statute.

The Court could not determine from the record whether, or to what extent, the hearing officer relied on the inadmissible BAC test report itself in reaching his decision. Because the Court could not determine if the hearing officer would have reached the same revocation determination without the improper admission of the test report itself, it reversed and remanded the case for the hearing officer to make that determination.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Claim Preclusion Bars Suit Against Attorney for Disclosure of PRE Report

The Colorado Court of Appeals issued its opinion in Foster v. Plock on Thursday, March 10, 2016.

Claim Preclusion—Attorney Fees.

This case stemmed from Foster’s dissolution of marriage action but also involved related criminal and tort cases. Plock represented Foster’s wife (wife) in the dissolution action, but was not a named party in any of the other cases.

Wife filed to dissolve her marriage to Foster, and a temporary civil protection order was issued by the domestic relations court barring Foster from contacting wife.

The court ordered a Parental Responsibilities Evaluation (PRE), which reported that Foster had an extensive criminal history. The PRE recommended that the court grant wife sole decision-making authority for the minor child. Foster requested a second evaluator, who noted that it was questionable whether all the crimes in the first report had actually been committed by Foster, but made the same recommendation. Both PREs were confidential and not to be “made available for public inspection” without court order.

Two misdemeanor criminal cases arose against Foster from multiple violations of the domestic court’s temporary civil protection order. In May 2013, the district attorney in one of those cases contacted Plock and asked whether he had any information that would be helpful to the criminal court in sentencing if Foster was convicted. Plock emailed him both PREs without Foster’s knowledge or consent, and without a court order releasing the PREs. The PREs were used in sentencing and, on Foster’s motion, ordered to be sealed.

In November 2013, Plock filed a motion with the domestic relations court admitting that he had disclosed the PREs to the prosecuting attorney, and in July 2014 the court sanctioned Plock and ordered him to pay Foster’s attorney fees associated with responding to Plock’s motion in which he admitted disclosing the PREs to the prosecutor.

During this time period, Foster filed 11 separate lawsuits regarding the first PRE alleging libel, slander, and outrageous conduct. These cases were all consolidated and all defendants moved to dismiss. Foster then filed 11 amended complaints against wife and the first investigator alleging that each had caused the disclosure of the PREs to the prosecutor in the criminal case. Plock wasn’t named in any of these cases, but in the complaint against wife, it was alleged that she, through her attorney, caused the PREs to be disclosed. In May 2014 the district court dismissed all of Foster’s complaints. Foster appealed but then voluntarily dismissed the appeal.

Four months after the dismissal and 10 months after he learned that Plock had disclosed the PREs to the prosecutor, Foster filed this action against Plock alleging invasion of privacy, defamation, and outrageous conduct. The court granted Plock’s motion to dismiss based on both claim and issue preclusion.

On appeal, Foster argued that it was error to conclude that his claims were barred by claim preclusion because there was no identity of subject matter, claims, or parties. The Court of Appeals disagreed. Specifically, the Court found that all of the elements of claim preclusion had been met: (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity or privity between parties to the actions.

Foster and Plock both requested attorney fees. The Court denied Foster’s request, but agreed that Plock was entitled to a mandatory award of attorney fees and costs on appeal under CRS §§ 13-17-201 and 13-16-113(2).

The judgment was affirmed and the case was remanded for a determination of reasonable attorney fees to be awarded to Plock.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/17/2016

On Thursday, March 17, 2016, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

United States v. Hernandez-Medina

MacIntyre v. JP Morgan Chase Bank

United States v. Uriarte

Lane v. Buckley

Gordon v. Farris

United States v. Street

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