December 11, 2018

Archives for April 17, 2018

Bills Signed Requiring Commercial Drivers to Receive Training in Human Trafficking Prevention, Modifying Water Court Process for Substitute Water Rights, and More

On Thursday, April 12, 2018, Governor Hickenlooper signed 23 bills into law. To date, he has signed 149 bills and sent one to the Secretary of State without a signature. Some of the bills signed Thursday include a bill allowing a water court process for mitigation measures, a bill requiring commercial drivers to receive training on prevention of human trafficking, a bill authorizing insurers’ agents to access the electronic motor vehicle title database, and more. The bills signed Thursday are summarized here.

  • SB 18-011 – “Concerning Treatment of Students who are Excused by their Parents from Participating in State Assessments,” by Sens. Chris Holbert & Andy Kerr and Reps. Tracy Kraft-Tharp & Paul Lundeen. The bill clarifies procedures for parents who excuse their children from taking state assessments and students whose parents excuse them from testing shall still be allowed to receive rewards designed for students who complete the assessments.
  • SB 18-079 – “Concerning Classifying Sake as a Vinous Liquor for the Purposes of the ‘Colorado Liquor Code,'” by Sen. Lucia Guzman and Rep. Dan Pabon. The bill classifies sake as a vinous liquor (wine) for the purposes of the “Colorado Liquor Code.”
  • SB 18-087 – “Concerning In-state Tuition at Institutions of Higher Education for Certain Foreign Nationals Legally Settled in Colorado,” by Sen. Stephen Fenberg and Reps. Dafna Michaelson Jenet & Faith Winter. The bill contains a legislative declaration about the circumstances facing special immigrants and refugees and the benefit of access to education.
  • SB 18-106 – “Concerning Obsolete Statutory Provisions Related to a Local Government’s Pledging of Sales or Use Tax Revenues to Pay for Revenue Bonds Issued for the Purpose of Financing Capital Improvements,” by Sen. Jack Tate and Rep. Don Thurlow. Current law specifies that a county, city, or incorporated town may include the creation of a sales and use tax capital improvement fund (special fund) when the county, city, or incorporated town seeks voter approval to levy a sales or use tax. The creation of the special fund does not have a purpose for a county, city, or incorporated town post-TABOR because the question of using sales or use tax revenues for financing capital improvements is asked when the county, city, or incorporated town seeks voter approval for the bond issuance. Thus, the language regarding the creation of the fund is unnecessary.
  • SB 18-110 – “Concerning the Repeal of the Requirement that Each State Agency Annually Report the Amount of Federal Money it Received in the Prior Fiscal Year,” by Sen. Jack Tate and Rep. Jeni James Arndt. During the 2017 legislative session, the statutory revision committee put forth House Bill 17-1058, which, in part, repealed a requirement that the state controller submit to the general assembly a report of all federal money received by state agencies during the prior fiscal year. State agencies are still required to submit an annual report to the state controller of all federal moneys received by the state agency in the prior fiscal year for the state controller’s use in preparing the report for the general assembly.The bill repeals the state agency reporting requirement as the state controller is no longer required to prepare a report for the general assembly.
  • SB 18-127 – “Concerning the Repeal of the Department of Revenue’s Requirement to Publish an Historical Explanation of Income Tax Rate Modifications Enacted in the State on Every Income Tax Return Form,” by Sen. Beth Martinez Humenik and Rep. Dan Thurlow. The bill repeals the requirement that the Executive Director of the Department of Revenue publish an historical explanation of income tax rate modifications enacted in the state on every income tax return form.
  • SB 18-129 – “Concerning the Nonsubstantive Reorganization of the Law Exempting from State Sales Tax Certain Drugs and Medical and Therapeutic Devices,” by Sen. Dominick Moreno and Rep. Jeni James Arndt. The bill makes several modifications to the laws exempting certain drugs and medical devices from sales tax.
  • SB 18-136 – “Concerning Fees for Advising Clients About the Selection of an Individual Health Benefit Plan,” by Sen. Tim Neville and Reps. Tracy Kraft-Tharp & Lang Sias. The bill allows an insurance producer or broker advising a client on individual health benefit plans to charge the client a fee if the producer or broker does not receive a commission related to the individual health benefit plan selected by the client and if the producer or broker discloses in writing the fee to the client.
  • SB 18-161 – “Concerning Repeal of the Behavioral Health Transformation Council,” by Sen. Jim Smallwood and Reps. Tracy Kraft-Tharp & Lois Landgraf. The bill repeals the behavioral health transformation council.
  • SB 18-162 – “Concerning Substitute Child Care Providers,” by Sen. Beth Martinez Humenik and Reps. Janet Buckner & James Wilson. The bill creates a license within the Department of Human Services for a substitute placement agency that places or that facilitates or arranges placement of substitute child care providers in licensed child care facilities providing less than 24-hour care.
  • SB 18-170 – “Concerning a Water Court Process by Which an Owner of a Storage Water Right Allowing Water to be Stored in New Reservoir Capacity may Release Water into an Identified Stream Reach in a Manner that Protects the Water Releases while Complying with Mitigation Measures Identified in a Fish and Wildlife Mitigation Plan Approved by the Colorado Water Conservation Board,” by Sen. Jerry Sonnenberg and Reps. Chris Hansen & Hugh McKean. The bill establishes a water court process by which an owner of a water storage right allowing water to be stored in a newly constructed reservoir or an enlarged existing reservoir may comply with the mitigation measures identified in a mitigation plan by contracting with the board.
  • SB 18-172 – “Concerning Testing of Horse Racing Licensees for the Presence of Prohibited Substances,” by Sen. Bob Gardner and Rep. Pete Lee. The bill adds to the responsibilities of the Colorado racing commission the protection of all participants, human and animal, involved in horse racing.
  • SB 18-176 – “Concerning Changes to the Requirements for Meeting Dates for the Board of the Southwestern Water Conservation District,” by Sen. Don Coram and Reps. Barbara McLachlin & Marc Catlin. The bill requires the Board of the Southwestern Water Conservation District to meet once every three months and makes amendments to the terms of the board members and board president.
  • SB 18-182 – “Concerning the Authority to Allocate a Portion of the Source Market Fee to Statutorily Authorized Purse Funds,” by Sens. Don Coram & Lucia Guzman and Reps. Marc Catlin & Jeni James Arndt. Current law requires persons outside of Colorado who accept wagers from residents of Colorado on simulcast horse racing events to be licensed in Colorado and to pay a source market fee into the racing cash fund. The bill authorizes the Director of the Division of Racing Events to allocate a portion of the source market fee to be paid to any horse purse trust fund established pursuant to existing law, if necessary, to maintain a sustainable and competitive purse structure in Colorado.
  • SB 18-183 – “Concerning Authorizing Agents of Insurers to Access the Electronic System that Insurers Access for Owner and Lienholder Information of a Motor Vehicle,” by Sen. Jack Tate and Reps. Jeni James Arndt & Larry Liston. Current law authorizes the creation and maintenance of an electronic system that vehicle towers, insurers, and salvage pools may use to access motor vehicle title records if the vehicle is insured or possessed by those entities. The bill allows an agent of an insurer to use the system in the same circumstances.
  • SB 18-184 – “Concerning a New Permit for the Short-term Extraction of Construction Materials,” by Sen. Don Coram and Reps. Hugh McKean & Daneya Esgar. The bill creates a new class of limited impact construction materials permits for one-time activities that produce construction materials as a by-product and are not intended to be ongoing mining operations and authorizes an application fee of $400 for the permit and an annual fee of $200.
  • HB 18-1017 – “Concerning the Adoption of an Interstate Compact to Allow a Person Authorized to Practice Psychology in a Compact State in Which the Person is not Licensed, and, in Connection Therewith, Making an Appropriation,” by Rep. Dafna Michelson Jenet and Sens. Bon Gardner & Stephen Fenberg. The bill enacts the ‘Psychology Interjurisdictional Compact Act’ allowing psychologists licensed in any compact state to provide telepsychology services to clients in any other compact state, or temporary in-person client services in any compact state not exceeding 30 days in a calendar year.
  • HB 18-1018 – “Concerning a Requirement that Education to Prevent Human Trafficking be Included in the Training to Obtain a Commercial Driver’s License,” by Reps. Terri Carver & Dominique Jackson and Sens. Rachel Zenzinger & John Cooke. The bill requires that the training to obtain a commercial driver’s license to drive a combination vehicle contain education to prevent human trafficking if the training is conducted in a driving school. The department must also publish information about human trafficking for commercial driver’s license holders and trainees.
  • HB 18-1049 – “Concerning the Department of Human Services’ Authority to Continue to Lease Portions of the Grand Junction Regional Center Campus to Third-party Behavioral Health Providers,” by Rep. Dan Thurlow and Sen. Ray Scott. The Department of Human Services currently leases portions of the Grand Junction regional center campus to third-party behavioral health providers. The bill authorizes the Department to continue such leases until June 30, 2020, and each party to such lease may terminate the lease early provided that the terminating party provide the other party with 90 days notice before vacating the property or requiring the property to be vacated.
  • HB 18-1056 – “Concerning the Statewide Standard Health History Form that Members of the Fire and Police Pension Association Complete when Commencing Employment,” by Reps. Kevin Van Winkle & Dave Williams and Sen. John Cooke. Every member of the fire and police pension association (FPPA), at the commencement of employment, is required to complete a health history on a statewide standard health history form. The bill clarifies several aspects of the form.
  • HB 18-1078 – “Concerning Court Programs for Defendants who have Served in the Armed Forces,” by Reps. Lois Landgraf & Tony Exum and Sen. Bob Gardner. Under current law, the chief judge of a judicial district may establish an appropriate program for the treatment of veterans and members of the military. The bill states that, in establishing any such program, the chief judge, in collaboration with the probation department, the district attorney, and the state public defender, shall establish program guidelines and eligibility criteria. The bill requires a court, in determining whether to issue an order to seal criminal records of a petitioner who has successfully completed a veterans treatment program, to consider such factor favorably in making the determination.
  • HB 18-1154 – “Concerning Consumer Protections Relating to a Solicitation to Provide a Copy of a Public Record for a Fee,” by Reps. Edie Hooten & Kevin Van Winkle and Sen. Cheri Jahn. The bill requires a person who solicits a fee for providing a copy of a deed or deed of trust to give a copy of the document that will be used for the solicitation to each county clerk and recorder where the solicitation is to be distributed; not charge a fee of more than 4 times the amount charged by the county clerk and recorder; and include specified disclosures.
  • HB 18-1239 – “Concerning Continuation under the Sunset Law of the Environmental Management System Permit Program, and, in Connection Therewith, Implementing the Recommendations of the Sunset Report by the Department of Regulatory Agencies by Allowing the Program to Repeal,” by Rep. Lois Landgraf and Sen. Ray Scott. The bill implements the recommendations of the sunset review and report on the environmental management system permit program by allowing the program to repeal.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Tenth Circuit: Petitioner Ineligible for Cancellation of Removal After Theft Convictions

The Tenth Circuit Court of Appeals Issued its opinion in Lucio-Rayos v. Sessions on Tuesday, November 14, 2017.

The issue presented in this case was whether petitioner Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (CIMT). If so, it would make him ineligible for cancellation of removal. Lucio-Rayos is a citizen of Mexico who entered the United States without authorization. Although he conceded that he was subject to removal, he sought discretionary relief in the form of cancellation of removal.

Lucio-Rayos first contended that the immigration judge erred in refusing to recuse from his case because the immigration judge’s spouse works with the Denver Immigration and Customs Enforcement office that initiated this removal proceeding. The Tenth Circuit rejected this argument.

In order to prevail on this argument, Lucio-Rayos had to establish that he was deprived of due process and that the deprivation prejudiced him. Lucio-Rayos presented extrajudicial-influence and inherent-bias arguments relying on law that requires a federal judge to recuse in any proceeding in which his impartiality might reasonably be questioned. However, the Immigration and Customs Enforcement office had a plan in place to ensure that the immigration judge’s spouse had no involvement in the case. Further, there is no evidence suggesting that the immigration judge’s spouse played any role in Lucio-Rayos’ removal proceedings. The immigration judge’s spouse was not a party, officer, director, or trustee of a party in this matter.

In addition, Lucio-Rayos has not shown that he was prejudiced by the immigration judge’s refusal to recuse; that is, Lucio-Rayos has not shown that his rights were violated in a manner so as potentially to affect the outcome of the proceedings.

Next, the Tenth Circuit concluded that Lucio-Rayos is ineligible for cancellation of removal. To be eligible for cancellation of removal, Lucio-Rayos had to meet four requirements. The only one at issue was whether Lucio-Rayos’s conviction for theft is a CIMT.

The Tenth Circuit applied the categorical approach by comparing the elements of Lucio-Rayos’s offense to the definition of CIMT, which refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality, and conduct that is inherently wrong, rather than conduct deemed wrong only because of a statutory proscription. The lower court found that a conviction like Lucio-Rayos’s qualifies as a CIMT only if one element of the offense is that the perpetrator intended to deprive the victim permanently of his property. The Tenth Circuit found, however, that not all convictions under the applicable theft provision require proof that the defendant intended to deprive the victim of his property permanently. The applicable code was found to be divisible.

The Tenth Circuit found that the undocumented alien bears the burden of proof to show that his conviction was not a CIMT. The Tenth Circuit held that, because it was unclear from Lucio-Rayos’s record whether he committed a CIMT, he did not prove eligibility for cancellation of removal.

Lastly, Lucio-Rayos contended that if his conviction was a CIMT, he nevertheless met an exception to ineligibility available for petty offenses. However, the Tenth Circuit held that in this situation, the petty offense exception did not prevent an immigrant’s CIMT conviction from disqualifying him from eligibility for discretionary cancellation of removal.

The Tenth Circuit Court of Appeals DENIED Lucio-Rayos’s petition for review and found he was not eligible for cancellation of removal.

Tenth Circuit: Unpublished Opinions, 4/16/2018

On Monday, April 16, 2018, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Thomas

United States v. Viarrial

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