November 14, 2018

Colorado Court of Appeals: No Violation of Open Meetings Law in Establishing Process to Refer Physicians for Disciplinary Investigations Related to MMJ Prescriptions

The Colorado Court of Appeals issued its opinion in John Doe No. 1-9 v. Colorado Department of Public Health and Environment on Thursday, July 26, 2018.

Open Meetings LawState Public BodyAdministrative Procedure Act—Colorado Open Records Act—Attorney Fees and CostsMedical MarijuanaC.R.S. § 24-4-106(8)—Final Agency Action.

The Colorado Constitution authorizes physicians to recommend the medical use of marijuana for patients with debilitating medical conditions. The Colorado Department of Public Health and Environment (CDPHE) is designated as “the state health agency” to administer Colorado’s medical marijuana program and is required to promulgate rules to administer the program. CDPHE created the medical marijuana registry to meet its requirement to establish a confidential registry of patients who are entitled to receive medical marijuana cards.

CDPHE has discretion to refer physicians to the Colorado Medical Board (the Board) for violations of medical marijuana laws. The Board, which is entirely separate from CDPHE and is housed under the Department of Regulatory Agencies, determines whether such violations exist.

Wolk, the CDPHE executive director, and Riggins, the state registrar and director of the Medical Marijuana Registry, (collectively, the Department) referred John Does 1 through 9 (collectively, the Doctors) to the Board for investigation of unprofessional conduct involving the Doctors’ certification of patients for the use of medical marijuana. The Department based its referrals on its medical marijuana policy (the Policy).

The Doctors then submitted Colorado Open Records Act (CORA) requests to the Department and the Board, seeking public records about, among other things, the Policy. The Department responded to the request, but withheld certain documents. The Doctors then brought this action against the Department and the Board, alleging violations of Colorado’s Open Meetings Law (OML) and the State Administrative Procedure Act (APA) and seeking injunctive and declaratory relief. The district court dismissed the claims against the Board and granted summary judgment on the Doctors’ OML and APA claims against the Department and, as a result, declared the Policy void.

On appeal, the Department argued for reversal of the summary judgment, contending that the entire agency cannot constitute a “state public body” under the OML, so the OML doesn’t apply. Under the OML’s plain language, the Department is not a state public body. Thus, the district court erred in granting summary judgment on the Doctors’ OML claim against the Board.

The Doctors challenged the dismissal of their OML claim against the Board. However, they did not allege that the Board had authority to enact or implement the Policy, or that it had enacted the Policy. Thus, even accepting as true the Doctors’ allegations that Board employees attended meetings to discuss and develop the Policy, the complaint failed to allege facts showing a link between the meetings and the Board’s policy-making powers. Thus, the Board is not subject to the OML.

The Doctors also challenged the denial of their request for attorney fees and costs under the OML. Given the case disposition, the court of appeals rejected the request.

The Department also argued that the district court erred in finding that the APA applied to the Department referrals because they are not a “final agency action” under the APA. Subject to an exception under C.R.S. § 24-4-106(8), only final agency action is subject to review. The referrals were not final; they didn’t determine anything, and it is uncertain whether an investigation will result in a finding of a violation or any other action. The Doctors sought to enjoin the referrals under the C.R.S. § 24-4-106(8) exception, which allows interlocutory review of agency actions in which a party will suffer irreparable harm. But to fit under the exception, the referrals must be a “proceeding” under the APA, which they are not. The district court erred in granting summary judgment on the Doctors’ APA claims against the Department based on the referrals.

The Doctors further argued that the Policy itself was a final agency action that did not comply with the APA’s rulemaking requirements. Here, the Policy was not binding and did not confer any power the Department did not already have, so it fell within the APA’s exception to the notice and hearing rulemaking requirements.

The Doctors also objected to the dismissal of the APA claims against the Board. However, they developed no argument in their opening brief about how the APA applies to the Board, and their discussion of the APA in their reply brief was too late.

The Doctors next argued that the district court erred in denying an award for attorney fees and costs associated with their request to obtain access to public documents under CORA. A party requesting an order to show cause for the disclosure of public records is not entitled to attorney fees and costs if the requesting party has filed a lawsuit against a state public body and the records relate to the pending litigation and are otherwise discoverable under the rules of civil procedure, which was the case here. The district court did not err in denying attorney fees and costs under CORA.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Bills to Keep Dextromethorphan Away from Kids and Extend Rule Review Signed

On Friday, May 11, 2018, Governor Hickenlooper signed two bills into law. To date, he has signed 225 bills into law and sent two to the Secretary of State without a signature. The bills signed Friday were HB 18-1253, “Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules of State Agencies,” by Reps. Pete Lee & Leslie Herod and Sen. Bob Gardner, and HB 18-1307, “Concerning Restricting the Availability to Children of Products that Contain Dextromethorphan,” by Reps. Jonathan Singer & Pete Lee and Sens. Bob Gardner & John Cooke.

HB 18-1253 extends all state agency rules that were adopted or amended on or after November 1, 2016, and before November 1, 2017, with the exception of the rules specifically listed in the bill. HB 18-1307 criminalizes the selling of products containing dextromethorphan to people under 18 years of age, and requires proof of age unless the vendor reasonably believes the purchaser is over 25 years of age.

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

Colorado Court of Appeals: Subpoena Issued for Lawfully Authorized Purpose Despite Having Arisen from Different Agency

The Colorado Court of Appeals issued its opinion in Colorado Medical Board v. Boland on Thursday, March 22, 2018.

Physician—Subpoena—State Administrative Procedure Act—Medical Practice Act—Colorado Department of Public Health and Environment—Open Meetings Law—Disciplinary Procedures.

Dr. Boland, a licensed Colorado physician, received a subpoena duces tecum from the Colorado Medical Board (Board) to produce certain medical records. A letter accompanying the subpoena explained that the Board had received information regarding Dr. Boland’s conduct as a physician and a possible violation of the Medical Practice Act. The letter also noted that the Board had received a complaint from the Colorado Department of Public Health and Environment (CDPHE) related to Dr. Boland’s medical marijuana recommendations. In response, Dr. Boland sent a written objection to the Board, arguing that CDPHE’s referral policy was invalidly adopted, and on that basis he refused to produce the records. The Board filed an application for an order enforcing the subpoena, which was granted by the district court. The district court concluded that even if the referral policy was invalid, only CDPHE could be enjoined from enforcing it.

On appeal, Dr. Boland argued that the trial court erred in enforcing an unlawful subpoena. He alleged that because CDPHE based its referral on a policy that was unlawfully adopted, the subpoena caused by the referral had no lawful purpose. Even assuming the policy was adopted in violation of the Open Meetings Law, CDPHE’s conduct does not determine whether the Board acted lawfully in issuing the subpoena. The Board has a statutory duty to investigate whether a licensed physician engages in unprofessional conduct and is vested with authority to conduct investigations and issue administrative subpoenas. Thus, the subpoena in this case was issued for a lawful purpose.

The judgment enforcing the subpoena was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Board Had No Basis for Investigating Physician Based on Reasons Outside Subpoena

The Colorado Court of Appeals issued its opinion in Colorado Medical Board v. McLaughlin on Thursday, March 22, 2018.

Physician—Subpoena—State Administrative Procedure Act—Colorado Department of Public Health and Environment—Open Meetings Law—Disciplinary Procedures.

Dr. McLaughlin, a licensed Colorado physician, received a subpoena duces tecum from the Colorado Medical Board (Board) to produce certain medical records. The Board issued the subpoena after it had received a complaint from the Colorado Department of Public Health and Environment (CDPHE) related to Dr. McLaughlin’s medical marijuana recommendations. Dr. McLaughlin objected to the Board’s subpoena, arguing that CDPHE’s referral policy was invalidly adopted. On that basis, he refused to produce the subpoenaed records. The Board filed an application for an order enforcing the subpoena. The district court concluded that although the physician referral policy was invalid, the subsequent investigation and subpoena were for a lawfully valid purpose, and the court granted the Board’s application.

On appeal, Dr. McLaughlin contended that the subpoena was not issued for a lawful purpose because the policy prompting the Board’s investigation was adopted in violation of Colorado’s Open Meetings Law. Here, the subpoena was issued solely as a result of a physician referral policy promulgated in violation of the Open Meetings Law and the State Administrative Procedure Act. Because the Board had no basis for investigating the physician apart from the invalid physician referral policy, the subpoena had no lawful purpose and the district court erred in enforcing the subpoena.

The judgment was reversed. However, the dissent agreed with the majority in Colorado Medical Board v. Boland, 2018 COA 39, and would affirm the district court’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Adverse Inference from Refusal to Testify Properly Applied at Administrative Hearing

The Colorado Court of Appeals issued its opinion in Romero v. Colorado Department of Human Services on Thursday, January 11, 2018.

Colorado State Administrative Procedure Act—Sexual Abuse—Evidentiary Facts—Adverse Inference—Fifth Amendment.

In this administrative law case, the Larimer County Department of Human Services (DHS) made a finding confirming that Romero sexually abused his grandchildren and exposed one grandchild to an injurious environment, which required Romero to be listed in the statewide child abuse registry. Romero appealed DHS’s confirmations pursuant to Colorado’s State Administrative Procedure Act (APA). An administrative law judge (ALJ) concluded in an initial decision that the preponderance of the evidence did not support DHS’s confirmation decisions. DHS appealed, and the Colorado Department of Human Services (Department) reversed the ALJ’s initial decision, concluding that the evidentiary facts, including an adverse inference based on Romero’s invocation of his Fifth Amendment right to remain silent, supported a finding that Romero sexually abused his grandchildren. Romero appealed to the district court, which reversed the Department’s final decision.

On appeal, the Department argued that the district court erred by overruling the Department’s final decision and by restricting the application of the adverse inference to situations where the Department provides an “adequate explanation” of why it has applied the inference. An agency’s determination in a final agency action to apply an adverse inference to a defendant’s invocation of his right to remain silent is an ultimate conclusion of fact under the APA. Consequently, the agency is required, as a matter of law, to make its own determination regarding the adverse inference and can substitute its own judgment for that of the administrative law judge regarding the inference and the weight to give the inference in light of the other evidence presented. To apply the adverse inference for invocation of the right against self-incrimination, a party in a civil case must have been asked questions the answers to which would have been potentially incriminating in a future criminal action, and the party must have invoked his Fifth Amendment rights. There must also have been probative evidence offered against the person claiming the privilege.

It is undisputed that during discovery for the ALJ hearing, DHS deposed Romero and asked him incriminating questions, including whether he touched his grandchildren for his own sexual gratification. It is also undisputed that Romero invoked his Fifth Amendment rights for the entire deposition except for the first few questions. Further, the record is clear that had Romero been called to testify at the ALJ hearing, he would have invoked his Fifth Amendment rights because of the ongoing criminal investigation into the allegations. Here, the Department’s application of the adverse inference was not arbitrary or capricious because it was supported by the record; it considered Romero’s constitutional rights; and it was not contrary to the law on Fifth Amendment adverse inference. Further, there is no authority that supports the district court’s imposition of a duty on the Department to provide an explanation for why it was applying the inference. Accordingly, the district court erred by effectively precluding the Department from making its own determination on the adverse inference.

Romero argued that the district court’s judgment should be upheld because the facts relied on by DHS to support findings of sexual abuse are speculative and do not support the ultimate findings. The Department’s view of the evidence was not speculative or contrary to the weight of the evidence presented to the ALJ.

The district court’s judgment overturning the Department’s final decision was reversed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Appeals Council Required Only to “Consider” New Evidence of Disability

The Tenth Circuit Court of Appeals issued its opinion in Vallejo v. Berryhill on February 28, 2017.

Vallejo applied for supplemental security income benefits alleging that she had been disabled for several months. The US Social Security Administration denied her claim. She received a hearing with an administrative law judge (ALJ), who issued a decision adverse to Vallejo. The next day, Vallejo’s treating physician, Dr. Ratner, completed his opinion, which stated that Vallejo was bipolar with an extreme level of impairment. Vallejo requested the Appeals Council to review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it considered Ratner’s opinion and additional evidence but found the evidence did not provide a basis for changing the ALJ’s decision. This rendered the ALJ’s decision the Commissioner’s final decision.

Vallejo sought judicial review of the Commission’s final decision. The district court found that the Appeals Council erred in not properly articulating its assessment of Ratner’s opinion in denying Vallejo’s request for review. The court reasoned that the Appeals Council was required to either assign Ratner’s opinion controlling weight or articulate reasons for assigning it a lesser weight. Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded to the Appeals Council to either determine what weight to give Ratner’s opinion or to remand to an ALJ with directions to make such a determination.

The Tenth Circuit held that it had jurisdiction to hear this appeal because the district court’s remand was a sentence-four remand. The Tenth Circuit held this because the district court did not retain jurisdiction and the remand was not solely for consideration of new evidence that was not before the Commissioner.

The Tenth Circuit addressed the issue of whether the district court’s determination that the Appeals Council failed to apply the correct legal standard was an error.

The Tenth Circuit held that the Appeals Circuit was not required to expressly analyze the new evidence of Ratner’s opinion. Rather, the statutes or regulations only require the Appeals Council to “consider” the new evidence. The Tenth Circuit acknowledges that an express analysis from the Appeals Council would be helpful to judicial review. But, further states that nothing in the statutes or regulations requires the Appeals Council to provide that analysis.

Therefore, the Tenth Circuit reversed the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council. The Tenth Circuit remanded to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record supported the Commissioner’s final decision.

Colorado Supreme Court: Inquiry into Unemployment Claimant’s Mental Condition Beyond Scope of Simplified Administrative Proceedings

The Colorado Supreme Court issued its opinion in Mesa County Public Library District v. Industrial Claim Appeals Office on Monday, June 26, 2017.

Unemployment Compensation—Fault or Misconduct—Illness or Physical Disability of Employee.

The supreme court held that where the Division of Unemployment Insurance determines a claimant was mentally unable to perform assigned work under C.R.S. § 8-73-108(4)(j) of the Colorado Employment Security Act, C.R.S. §§ 8-70-101 to 8-82-105, neither the text of C.R.S. § 8-73-108(4)(j) nor related case law contemplates further inquiry into the cause of the claimant’s mental condition, and such an inquiry is beyond the scope of the simplified administrative proceedings to determine the claimant’s eligibility for benefits. Here, the court concluded that the Division’s hearing officer erred in determining that claimant committed a volitional act to cause her mental incapacity and thus was at fault for her separation from employment and was disqualified from receiving unemployment benefits. The court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Mutual Benefit Doctrine Supports Union Member’s Claim for Workers’ Compensation Coverage While at CBA Discussion Meeting

The Colorado Court of Appeals issued its opinion in Pueblo County, Colorado v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation—Injury at a Union Meeting—Mutual Benefit Doctrine.

Claimant was president of the local union. She worked for Pueblo County (employer). Union membership is required for workers in a bargaining unit, and union dues are deducted from workers’ paychecks. Participation in union meetings is voluntary. Claimant stayed after work for a union meeting, which was held immediately after claimant clocked out for the day and took place in a conference room in the building in which she worked. The purpose of the meeting was to review and revise the new collective bargaining agreement.

After the meeting, claimant walked to the adjacent parking lot where she normally parked for work. While getting in her car, she slipped on ice and injured herself. She filed a workers’ compensation claim for her medical expenses. An administrative law judge (ALJ) denied and dismissed the claim, finding the claimant “was not in the course and scope of her employment at the time of her injury.” The Industrial Claim Appeals Office (Panel) disagreed, finding the union activities were “sufficiently incidental” to claimant’s work “as to be properly considered as arising out of and in the course of employment.” It remanded to the ALJ to determine benefits. On remand, the ALJ ordered employer to pay all of claimant’s reasonable, necessary, and related medical expenses. The Panel affirmed.

On appeal, employer argued that the Panel erred in holding that the post-work injury sustained immediately following claimant’s attendance at a union meeting arose out of and in the course of employment. An injury arises out of employment when it originates in an employee’s work-related functions and is sufficiently related to those functions to be considered part of employment. It is not essential that an employee be engaged in an obligatory job function.

This was a case of first impression in Colorado but has been addressed in a number of other states. In general, injuries sustained during “unilateral union activities conferring, if any, only a remote or indirect benefit upon the employing enterprise” are not covered. However, the leading treatise recognizes a trend toward finding a mutual employer-employee benefit in actions of union officers. The court of appeals concluded that union activity cases in Colorado should be analyzed under the mutual benefit doctrine to determine compensability. This doctrine requires courts to examine the circumstances of each case to determine whether a union activity is of mutual benefit to the employer and employee. Here, where a union officer participated in a union meeting that served to facilitate ongoing negotiations between the union and employer concerning a new collective bargaining agreement, there was mutual benefit to employer and employee. Further, once mutual benefit is established, the location of the injury is not determinative. Accordingly, the injuries sustained were compensable.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Constitutional Violation by Using ALJs in Workers’ Compensation Proceedings

The Colorado Court of Appeals issued its opinion in Sanchez v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation Act of Colorado—Constitutionality—Separation of Powers—Equal Protection.

Claimant sustained a back injury at work lifting a hydraulic unit from his truck. Within two months he was back to work and placed at maximum medical improvement. Soon thereafter he complained of excruciating lower back pain, but both his original doctor and a specialist concluded that this new lumbar strain was not work-related but related to normal age-related degenerative changes.

Claimant sought temporary partial disability (TPD) benefits from the date of his injury and temporary total disability (TTD) benefits from when his low back pain flared up. An  administrative law judge (ALJ) rejected the request for benefits, finding that (1) his lower back pain was unrelated to his work injury, and (2) because he had continued working, claimant had not suffered a wage loss and was not entitled to either TPD or TTD benefits. The ALJ dismissed his requests. The Industrial Claim Appeals Office (Panel) affirmed but remanded the case to the ALJ to determine whether claimant was entitled to change his physician.

On appeal, claimant argued the separation of powers doctrine is violated by having workers’ compensation cases heard in the executive branch. In rejecting this argument, the court of appeals followed Dee Enterprises v. Industrial Claim Appeals Office, which held that the statutory scheme for deciding workers’ compensation cases does not violate the separation of powers doctrine.

Claimant then argued his equal protection claims should be analyzed under the strict scrutiny standard. The court held that the rational basis test applies to equal protection challenges in the workers’ compensation context. Under that test, “a statutory classification is presumed constitutional and does not violate equal protection unless it is proven beyond a reasonable doubt that the classification does not bear a rational relationship to a legitimate legislative purpose.”

Claimant argued that his and other workers’ compensation litigants’ rights to equal protection were violated because workers’ compensation cases are not heard by judges. The court concluded that legitimate governmental goals provide a rational basis for employing executive branch ALJs and the Panel to decide workers’ compensation cases. The court rejected claimant’s contention that his right to equal protection was violated because his claim was heard by an ALJ and the Panel.

Claimant then contended that the Panel’s dual role as decision-maker and then-named litigant if a case is appealed “reeks of impropriety.” The requirement that the Panel be added as a party is not arbitrary and serves the purpose of the Workers’ Compensation Act of ensuring thorough and expeditious review and enforcement of ALJ and Panel orders.

Claimant also challenged on equal protection grounds C.R.S. § 8-43-404(5)(a)(II)(A), which exempts governmental entities and health care providers from providing an injured worker with a list of four physicians from whom the worker may seek medical care for his injury. The court concluded that a rational basis exists for excluding employees of those two types of employers from the four-physician referral requirement. Thus, there was no equal protection violation.

The court rejected claimant’s three non-constitutional arguments, which were that: (1) the exemption from the four-physician referral requirement did not apply because claimant’s employer did not meet the requirements of C.R.S. § 8-43-404(5)(a)(II)(A); (2) substantial evidence did not support the ALJ’s factual findings; and (3) the ALJ made numerous evidentiary errors.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Bills Signed Regarding Amending State Constitution, Revising Victim Rights Laws, and More

On Friday, April 28, 2017, the governor signed 29 bills into law and vetoed one bill. To date, he has signed 195 bills and vetoed one bill this legislative session. Some of the bills signed Friday include a bill to implement voter-approved changes to make it more difficult to amend the state constitution, a bill changing reporting requirements from the State Judicial Department to the General Assembly, a bill revising victim rights laws, a bill mandating minimum sentences for persons convicted of sex trafficking, and more. The bills signed Friday are summarized here.

  • HB 17-1158“Concerning the Regulation of Charitable Solicitations by the Secretary of State, and, in Connection Therewith, Modifying and Clarifying Filing Requirements and Enforcement of the ‘Colorado Charitable Solicitations Act,’ by Rep. Hugh McKean and Sens. Beth Martinez Humenik & Jim Smallwood. The bill clarifies that a charitable organization’s registration with the secretary of state must be renewed on an annual basis if the charitable organization intends to solicit donations in Colorado, and an organization may not continue to solicit if it fails to renew its registration. The bill also requires an organization to update information in its registration within 30 days after any change.
  • HB 17-1172“Concerning Criminal Penalties for Persons who Commit Human Trafficking of a Minor for Sexual Servitude,” by Reps. Terri Carver & Clarice Navarro and Sen. John Cooke. The bill requires a court to sentence a person convicted of a class 2 felony for human trafficking of a minor for sexual servitude to the Department of Corrections for a term of at least 8 years.
  • HB 17-1189“Concerning the Limit on the Number of Terms a Member of the Colorado Wine Industry Development Board may Serve,” by Reps. Jessie Danielson & Dan Thurlow and Sen. Ray Scott. The bill allows a member of the Colorado Wine Industry Development Board to serve two full 4-year terms insteat of one. Members may also continue to serve after the expiration of their terms until the appointment of a successor.
  • HB 17-1205“Concerning Changing the Definition of ‘Salvage Vehicle,’ by Rep. Jovan Melton and Sen. Beth Martinez Humenik. The bill changes the definition of ‘salvage vehicle’ to add another test of when an insurer determines the vehicle to be a total loss. The bill also adds theft damage as an exclusion to the types of damage that can cause a vehicle to be a salvage vehicle.
  • HB 17-1218“Concerning an Expansion of the State’s Ability to Share Information about State Financial Institutions with Other Governmental Regulators,” by Rep. Alec Garnett and Sen. Kevin Priola. The bill allows the banking board and the state bank commissioner to share records and other information about banks, trust companies, and money transmitters with banking or financial institution regulatory agencies of other states or United States territories if the governmental agency is required to maintain the confidentiality of the records and shares similar information with the division of banking.
  • HB 17-1241: “Concerning the Nonsubstantive Relocation of Laws Related to Indian Arts and Crafts Sales from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill relocates Article 44.5 of Title 12, which imposes requirements and penalties pertaining to the sale or offering for sale of authentic Indian and other arts and crafts, to a new Part 2 in Article 15 of Title 6 of the Colorado Revised Statutes, governing consumer and commercial affairs.
  • HB 17-1272“Concerning the Scheduled Repeal of Reports by the Department of Labor and Employment to the General Assembly,” by Rep. Edie Hooten and Sen. Dominick Moreno. The bill amends repeal dates and reporting requirements from the Department of Labor and Employment to the General Assembly.
  • HB 17-1316“Concerning Delaying the Implementation of House Bill 16-1309,” by Rep. Susan Lontine and Sen. Vicki Marble. The bill delays the implementation of HB 16-1309, which was enacted by the 2016 General Assembly and concerns a defendant’s right to counsel in certain cases considered by municipal courts, until July 1, 2018.
  • SB 17-051“Concerning the Rights of Crime Victims,” by Sens. Bob Gardner & Rhonda Fields and Reps. Polly Lawrence & Mike Foote. The bill makes several amendments to victim rights statutes, including amendments to the definitions of “crime,” “critical stages,” and “modification of sentence”; creation of a right for a victim to be informed of parole or pardon decisions; and more.
  • SB 17-083: “Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules and Regulations of State Agencies,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill extends all state agency rules and regulations that were adopted or amended on or after November 1, 2015, and before November 1, 2016, with the exception of the rules and regulations specifically listed in the bill.
  • SB 17-152“Concerning the Implementation of Voter-Approved Changes to the Colorado Constitution that Make it More Difficult to Amend the State Constitution, and, in Connection Therewith, Prohibiting a Petition for an Initiated Amendment to the State Constitution from Being Submitted to Voters Unless the Petition is Signed by the Constitutionally Required Number of Registered Electors who Reside in Each State Senate District and Total Number of Registered Electors, Requiring at Least Fifty-Five Percent of the Votes Cast on Any Amendment to the State Constitution to Adopt the Amendment Unless the Amendment Only Repeals in Whole or in Part a Provision of the State Constitution, in Which Case Requiring a Majority of the Votes Cast on the Amendment to Adopt the Amendment, and Making an Appropriation,” by Sen. Lois Court and Rep. Chris Kennedy. The bill implements changes to the Colorado constitution approved by voters at the 2016 general election that make it more difficult to amend the state constitution.
  • SB 17-179“Concerning the Limitation on the Amount of Fees that Can be Assessed for Allowing Solar Energy Device Installations, and, in Connection Therewith, Extending the Repeal Date,” by Sens. Andy Kerr & Bob Gardner and Reps. Lang Sias & Leslie Herod. The bill extends the repeal date of existing laws that limit the amount of permit, plan review, or other fees that counties, municipalities, or the state may charge for installing solar energy devices or systems.
  • SB 17-220“Concerning the Continuation of the Restorative Justice Coordinating Council,” by Sen. Lois Court and Rep. Jeni James Arndt. The bill extends the Council and moves it from Title 19, Colorado Revised Statutes, which relates to the juvenile code, to Title 13, Colorado Revised Statutes, which relates to the judicial code, since restorative justice use has expanded from juvenile cases to adult cases.
  • SB 17-223“Concerning the Nonsubstantive Relocation of Laws Related to the Treatment of Human Bodies After Death from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Bob Gardner and Rep. Leslie Herod. The bill relocates Parts 1 and 2 of Article 34 of Title 12 of the Colorado Revised Statutes related to anatomical gift and unclaimed human bodies to new Parts 2 and 3 of Article 19 of Title 15.
  • SB 17-224“Concerning the Nonsubstantive Relocation of Laws Related to Commercial Driving Schools from Title 12 of the Colorado Revised Statutes as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Pete Lee. The bill relocates the statutes governing commercial driving schools to part 6 of article 2 of title 42.
  • SB 17-226: “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Financial Institutions from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill relocates Article 13 of Title 12, pursuant to which the Commissioner of Financial Services and the Financial Services Board regulate life care institutions, to Article 49 of Title 11, and Article 52 of Title 12, pursuant to which the Banking Board and the State Bank Commissioner regulate money transmitters, to Article 110 of Title 11.
  • SB 17-231“Concerning the Scheduled Repeal of Reports by the Department of Transportation to the General Assembly,” by Sen. Dominick Moreno and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Transportation to the General Assembly.
  • SB 17-233“Concerning the Scheduled Repeal of Reports by the Department of Law to the General Assembly,” by Sen. Jack Tate and Rep. Jeni James Arndt. The bill amends repeal dates and reporting requirements from the Department of Law to the General Assembly.
  • SB 17-234“Concerning the Scheduled Repeal of Reports by the Department of Human Services to the General Assembly,” by Sen. Andy Kerr and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Human Services to the General Assembly.
  • SB 17-241“Concerning the Scheduled Repeal of Reports by the Judicial Department to the General Assembly,” by Sen. Jack Tate and Rep. Edie Hooten. The bill amends repeal dates and reporting requirements from the State Judicial Department to the General Assembly.
  • SB 17-246“Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems and Making a Corresponding Change to the Name of the Associated Task Force,” by Sen. Beth Martinez Humenik and Reps. Jonathan Singer & Dafna Michaelson Jenet. The bill changes the name of the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems’ to the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems’. The bill makes a corresponding change to the associated task force and cash fund. The bill also modernizes terminology related to mental health disorders.
  • SB 17-255“Concerning the Creation of the Technology Advancement and Emergency Fund in the Office of Information Technology, and, in Connection Therewith, Making an Appropriation,” by Sen. Kent Lambert and Rep. Bob Rankin. The bill creates the Technology Advancement and Emergency Fund in the Office of Information Technology. Subject to annual appropriation by the General Assembly, the Office may expend money in the fund to cover one-time costs associated with emergency information technology expenditures, to address deferred maintenance of state agency information technology assets, and to provide additional services to address unforeseen service demands.
  • SB 17-257“Concerning the Creation of the Community Museums Cash Fund for the Administration of Revenues Generated by Community Museums Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation,” by Sen. Dominick Moreno and Rep. Bob Rankin. The bill deposits revenues from the community museums in a new community museums cash fund which would be appropriated specifically for the activities of the community museums.
  • SB 17-260“Concerning Transfers to the General Fund from Cash Funds with Severance Tax Revenues,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make certain transfers from the cash funds to the general fund on June 30, 2018.
  • SB 17-261“Concerning the Creation of the 2013 Flood Recovery Account in the Disaster Emergency Fund,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill creates the 2013 flood recovery account in the disaster emergency fund and requires the state treasurer to transfer $12.5 million from the general fund to the account on July 1, 2017.
  • SB 17-262“Concerning the Transfer of Money from the General Fund to Cash Funds that are Used for the State’s Infrastructure,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make transfers for this fiscal year and the next three fiscal years from the general fund to the capital construction fund and the highway users tax fund, and requires percentage-based transfers after that.
  • SB 17-263“Concerning Capital-related Transfers of Money,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes certain transfers from the general fund.
  • SB 17-265“Concerning a Transfer of Money from the State Employee Reserve Fund to the General Fund,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to transfer $26.3 million from the state employee reserve fund to the general fund on July 1, 2017.
  • SB 17-266“Concerning a Reduction in the Amount of the General Fund Reserve Required for the Fiscal Year 2016-17,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill reduces the statutorily required general fund reserve from 6.5% to 6% of the amount appropriated for expenditure from the general fund.

Additionally, the governor vetoed one bill on Friday. That bill was SB 17-139, “Concerning the Extension of the Credit for Tobacco Products that a Distributor Ships or Transports to an Out-of-State Consumer.” The governor stated that he was unpersuaded there would be a significant economic impact, and he was concerned about educating Colorado consumers on the dangers of tobacco use.

For a list of the governor’s 2017 legislative actions, click here.

Colorado Court of Appeals: Oil and Gas Commission Has Authority to Issue Rule at Petitioner’s Request

The Colorado Court of Appeals issued its opinion in Martinez v. Colorado Oil and Gas Commission on Thursday, March 23, 2017.

Oil and Gas Conservation ActColorado Oil and Gas Conservation CommissionPublic Health and Safety.

Petitioners filed a petition for rulemaking pursuant to the Colorado Oil and Gas Conservation Commission’s Rule 529(b). Petitioners proposed a rule requesting that the Commission not issue permits for drilling oil and gas wells unless certain conditions were met to demonstrate that the drilling would not have specified adverse effects. The Commission ultimately denied the petition, concluding that (1) the proposed rule mandated action that exceeded the Commission’s statutory authority; (2) the requested third-party review contradicted the Commission’s nondelegable duty to promulgate rules; and (3) the public trust doctrine, which petitioners relied on to support their request, has been expressly rejected in Colorado. The district court affirmed the Commission’s order after concluding that the Commission rationally decided to deny the petition after considering input from stakeholders on both sides of the fracking issue in accordance with the Oil and Gas Conservation Act’s requirement of a balance between the development of oil and gas resources and the protection of public health, safety, and welfare.

On appeal, petitioners contended that the district court and the Commission erred in interpreting the Act. The Colorado Court of Appeals determined that the plain meaning of the statutory language indicates that fostering balanced development, production, and use of natural resources is in the public interest when that development is completed subject to the protection of public health, safety, and welfare. Therefore, the Commission erred in interpreting C.R.S. § 34-60-102(1)(a)(I) as requiring a balance between development and public health, safety, and welfare.

The district court’s and Commission’s orders were reversed and the case was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Electronic Court Notice Bill, Increase of Life Insurance Exemption Bill, Subpoena Clarifications Bill, and More Signed Monday.

On Monday, March 20, 2017, the governor signed 17 bills into law. To date, he has signed 80 bills this legislative session. Some of the bills signed Monday include a bill increasing the exemption amount for a cash surrender of life insurance, a bill authorizing the fiduciary of an endowment fund to distribute principal under a unitrust election, a bill allowing an attorney general or district attorney to issue a subpoena for people engaged in deceptive trade practices, a bill allowing court clerks to electronically notice parties, and a bill increasing the appropriation to the Department of Law for providing legal services to the Department of Education. The bills signed Monday are summarized here.

  • HB 17-1023“Concerning a Clarification of Procedures for Subpoenas for Deceptive Trade Practices,” by Reps. Tracy Kraft-Tharp & Cole Wist and Sens. Chris Holbert & Lois Court. The bill clarifies that the attorney general or a district attorney may issue a subpoena pursuant to C.R.C.P. 4 to a person whom he or she has reasonable cause to believe has engaged or is engaging in a deceptive trade practice in violation of Colorado statute.
  • HB 17-1039“Concerning Communication Issues Related to Restorative Justice,” by Rep. Pete Lee and Sen. Daniel Kagan. The bill allows the district attorney to consent to an assessment for suitability for participation in restorative justice practices, including victim-offender conferences, as part of a recommended sentence in a plea bargain.
  • HB 17-1041“Concerning Measures to Inform Students of Education Opportunities Leading to Jobs,” by Rep. Phil Covarrubias and Sen. Kevin Priola. The bill requires schools to inform students of military enlistment as a path to educational opportunities.
  • HB 17-1056“Concerning the Eligibility of a Veterans’ Service Organization to Accept Public Service Assignments Offered in Connection with Misdemeanor Sentencing,” by Rep. Michael Weissman and Sens. Bob Gardner & Andy Kefalas. The bill expands the criteria for organizations that may accept community or useful public service assignments to include veterans’ service organizations organized under 501(c)(4) or 501(c)(19) of the tax code, and specifies that the court or other entity making the assignment retains discretion to determine which organizations may be included in its program of community or useful public service.
  • HB 17-1061“Concerning Modification of the Class of Vehicles that is Subject to Regulation as Commercial Vehicles,” by Reps. Jon Becker & Jovan Melton and Sens. Nancy Todd & Ray Scott. The bill increases the minimum weight for classification as a commercial vehicle subject to the statutory and regulatory standards for commercial vehicles from 10,001 pounds to 16,001 pounds unless the vehicle is registered for use in interstate commerce.
  • HB 17-1093“Concerning an Increase in the Exemption for the Cash Surrender Value of Life Insurance,” by Rep. Kim Ransom and Sen. Daniel Kagan. The bill increases the exemption for cash surrender value of life insurance policies to $250,000.
  • HB 17-1096“Concerning Endowment Care Funds Administered for Cemetery Authorities,” by Rep. Larry Liston and Sen. Jim Smallwood. The bill authorizes the fiduciary of an endowment fund to distribute principal, such as capital gains, under a unitrust election.
  • HB 17-1135“Concerning the Portability of Employment Background Checks for a Child Care Worker who Works for the Same Common Ownership Entity,” by Rep. Jeff Bridges and Sen. Kevin Priola. The bill allows a child care worker who is employed in a licensed facility that is wholly owned, operated, and controlled by a common ownership group or school district to use a single completed fingerprint-based criminal history record check and a check of the records and reports of child abuse or neglect to satisfy the requirements of the necessary background checks if the employee also works for or transfers to another licensed facility.
  • HB 17-1142“Concerning Notices of Certain Court Proceedings,” by Rep. Dominique Jackson and Sen. Bob Gardner. The bill allows the clerk of the court to send notice by first-class mail or electronically using the e-filing system of the judicial department.
  • HB 17-1143“Concerning Audits of Correspondence Sent to Medicaid Clients,” by Rep. Lois Landgraf and Sen. Larry Crowder. The bill directs the Office of the State Auditor to conduct or cause to be conducted an audit of client correspondence, including letters and notices, sent to clients or potential clients in Medicaid programs.
  • SB 17-011“Concerning the Creation of a Technical Demonstration Forum to Study Solutions to Improve Transportation Access for People with Disabilities,” by Sen. Kent Lambert and Rep. Polly Lawrence. The bill creates a technical demonstration forum consisting of eight members to study and document how advanced technologies can improve transportation access for people with disabilities.
  • SB 17-041“Concerning Employment Contracts for Positions at Institutions of Higher Education that are Funded by Revenue Generated from Auxiliary Activities,” by Sen. Kevin Priola and Reps. Yeulin Willett & Edie Hooten. The bill exempts certain positions at institutions of higher education from limits for employment contract terms or amounts.
  • SB 17-060“Concerning Relocation of the Colorado Student Leaders Institute from the Office of the Lieutenant Governor to the Department of Higher Education, and, in Connection Therewith, Making and Reducing an Appropriation,” by Sen. Nancy Todd and Rep. James Wilson. The bill relocates the Colorado Student Leaders Institute to the Department of Higher Education with no changes to the program.
  • SB 17-077“Concerning the Eligibility of Certain Government Agencies to Apply for a Special Event Permit to Sell Alcohol Beverages,” by Sen. Cheri Jahn and Reps. Tracy Kraft-Tharp & Yeulin Willett. The bill authorizes certain agencies to obtain a special event permit to sell alcohol beverages for a limited period.
  • SB 17-109“Concerning the Use of Industrial Hemp in Products Designed for Consumption,” by Sen. Kerry Donovan and Rep. Jeni Arndt. The bill creates a group under the commissioner of agriculture to study the feasability of including hemp products in animal feed.
  • SB 17-196“Concerning the Improvement of the Department of Law’s Information Technology Security,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the appropriation to the Department of Law to improve the Department’s information technology security based on an external auditor’s recommendations.
  • SB 17-197“Concerning the Provision of Legal Services for the Department of Education in the 2016-17 State Fiscal Year,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill increases the amount of reappropriated funds that are appropriated to the Department of Law for the purpose of providing additional legal services for the Department of Education.

For a list of the governor’s 2017 legislative actions, click here.