September 24, 2018

Bill Signed Authorizing Court Appointees for Marijuana Businesses

On Tuesday, May 15, 2018, Governor Hickenlooper signed one bill into law. To date, he has signed 226 bills and sent two to the Secretary of State without a signature. The bill signed Tuesday was HB 18-1280, “Concerning Regulatory Procedures Related to the Appointment of a Court Appointee for a Regulated Marijuana Business, and, in Connection Therewith, Making an Appropriation,” by Rep. Jovan Melton and Sen. Don Coram. Under current law, there are no provisions that specifically address what happens to a regulated marijuana business when a representative is appointed for the business. The bill requires a potential appointee to certify to the court prior to the appointment that he or she is suitable to hold a marijuana business license.

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

Bills Signed Changing Definition of “Similar Coverage” for Workers’ Compensation Coverage of Certain Commercial Vehicle Operators and More

On Friday, May 4, 2018, Governor Hickenlooper signed 12 bills into law. To date, he has signed 223 bills and sent two to the Secretary of State without a signature. The bills signed Friday include a bill changing procedures for recalls of directors of special districts, a bill changing the definition of “similar coverage” for workers’ compensation purposes for certain operators of commercial vehicles, and more. The bills signed Friday are summarized here.

  • SB 18-076 – “Concerning a Ban on Vote Trading,” by Sen. Kevin Lundberg and Rep. Jovan Melton. The bill makes it a misdemeanor criminal offense for a person to trade a vote or offer to trade a vote with another elector in this state or a person in another state in exchange for the other person’s vote for or against a particular candidate, ballot issue, or ballot question.
  • SB 18-143 – “Concerning Measures to Increase Revenue for the Parks and Wildlife Division, and, in Connection Therewith, Setting Certain Hunting, Fishing, Parks, and Recreation Fees,” by Sens. Steven Fenberg & Don Coram and Reps. Jeni James Arndt & James Wilson. The bill makes several changes to the statutes in the “Hunting, Fishing, and Parks for Future Generations Act.”
  • SB 18-178 – “Concerning the Definition of Similar Coverage for Workers’ Compensation for Certain Operators of Commercial Vehicles,” by Sen. Jim Smallwood and Rep. Tracy Kraft-Tharp. Current law requires independent operators of commercial vehicles to have workers’ compensation or a private insurance policy that provides similar coverage. The bill changes ‘private insurance policy’ to ‘occupational accident coverage insurance policy’ and specifies the requirements for when such a policy may be considered as providing similar coverage.
  • SB 18-207 – “Concerning Authority for the Department of Human Services to Retain Amounts from Certain Cash Funds for its Indirect Costs,” by Sen. Dominick Moreno and Rep. Bob Rankin. The bill authorizes the department of human services to retain money for its indirect costs, based on a federally approved cost allocation plan, from the older Coloradans cash fund and the nurse home visitor program fund.
  • HB 18-1040 – “Concerning Incentives for Provision of Sex Offender Services in the Department of Corrections,” by Rep. Adrienne Benavidez and Sen. Rhonda Fields. The bill requires the department of corrections to monitor the number of inmates who need sex offender treatment or services and the number who are not receiving such treatment or services, develop an incentive plan to contract for more mental health professionals to provide sex offender treatment or services in difficult-to-serve geographic areas, and report to the joint budget committee the number of inmates needing treatment or services, the number not receiving the treatment or services, and the impact of the incentive plan.
  • HB 18-1235 – “Concerning the Continuation of the Regulation of Custom Meat Processors, and, in Connection Therewith, Implementing the Recommendations of the 2017 Sunset Report of the Department of Regulatory Agencies,” by Reps. Chris Hansen & Hugh McKean and Sen. Ray Scott. The bill implements the recommendations of the Department of Regulatory Agencies in its sunset review and report on the ‘Custom Processing of Meat Animals Act.’
  • HB 18-1240 – “Concerning the Continuation of a Grant Program to Prevent Motor Vehicle Theft, and, in Connection Therewith, Implementing the Sunset Review Recommendations of the Department of Regulatory Agencies,” by Reps. Jeff Bridges & Jon Becker and Sen. John Cooke. The bill continues the automobile theft prevention authority and the automobile theft prevention board until 2029.
  • HB 18-1265 – “Concerning the Continuation of the Stroke Advisory Board in Accordance with the Recommendation in the Department of Regulatory Agencies’ 2017 Sunset Report,” by Reps. Susan Lontine & Susan Beckman and Sen. Larry Crowder. The Bill implements the recommendation in the department of regulatory agencies’ sunset review of the stroke advisory board by continuing the board but imposes a 10-year sunset period rather than continuing the board indefinitely, as was recommended.
  • HB 18-1268 – “Concerning the Procedures to Recall a Director of a Special District,” by Rep. Matt Gray and Sen. Bob Gardner. The bill requires the court as defined for the special district to appoint a designated election official to oversee the recall election. The director and the director’s spouse or civil union partner cannot serve as the DEO. The bill requires that recall petitions must be approved as to form by the DEO before being circulated.
  • HB 18-1305 – “Concerning a Voluntary Contribution Designation Benefiting the Young Americans Center for Financial Education Fund that Appears on the State Individual Tax Return Forms,” by Reps. James Coleman & Patrick Neville and Sen. Tim Neville. The bill creates the Young Americans Center for Financial Education fund in the state treasury. A voluntary contribution designation line for the fund will appear on the state individual income tax return form for the 5 income tax years following the year that the executive director of the Department of Revenue certifies to the revisor of statutes that there is space on the form and the fund is next in the queue.
  • HB 18-1329 – “Concerning a Supplemental State Payment to Qualified Providers of Durable Medical Equipment who Experienced a Decrease in Reimbursement in the 2017-18 State Fiscal Year as a Result of the Implementation of the Federal ’21st Century Cures Act,’ and, in Connection Therewith, Making an Appropriation,” by Rep. Bob Rankin and Sen. Dominick Moreno. The bill authorizes a supplemental payment of state-only money to qualified providers of durable medical equipment who experienced a decrease in reimbursement in the 2017-18 state fiscal year as a result of the implementation of the federal ’21st Century Cures Act.’
  • HB 18-1338 – “Concerning Transfers to Address the Reduction of Revenues in the Severance Tax Operational Fund,” by Rep. Bob Rankin and Sen. Kent Lambert. Under current law, money is transferred from the severance tax operational fund to certain cash funds to benefit programs that are commonly referred to as the tier 2 programs. On June 30, 2018, the bill requires the state treasurer to transfer money to the operational fund from specified cash funds to recoup money that was previously transferred in this fiscal year for tier 2 programs.

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

Bills Signed Changing Revenge Pornography Crimes, Amending Laws Related to Bicycles Approaching Intersections, and More

On Thurdsay, May 3, 2018, Governor Hickenlooper signed seven bills into law. To date, he has signed 211 bills and sent two to the Secretary of State without a signature. The bills signed Thursday include a bill changing the laws concerning revenge pornography crimes, a bill requiring state agencies to conduct analyses to determine which businesses are not complying with their rules, a bill permitting municipalities to adopt rules concerning bicycles approaching intersections, and more. The bills signed Thursday are summarized here.

  • SB 18-132 – “Concerning a Waiver of Federal Law to Permit Insurance Carriers to Offer Catastrophic Health Plans to Any Individual Residing in Colorado, and, in Connection Therewith, Making an Appropriation,” by Sen. Jim Smallwood and Rep. Chris Kennedy. The bill requires the commissioner of insurance to conduct an actuarial analysis to determine if the sale of catastrophic health plans to Colorado residents 30 years of age and older and not meeting a hardship requirement would result in a reduction in advanced premium tax credits received by Colorado residents or increase the average premiums of individual health plans.
  • SB 18-144 – “Concerning the Regulation of Bicycles Approaching Intersections,” by Sen. Andy Kerr and Reps. Yeulin Willett & Chris Hansen. The bill permits a municipality or county to adopt a local ordinance or resolution regulating the operation of bicycles approaching intersections with stop signs or illuminated red traffic control signals. Under a local regulation, a bicyclist approaching a stop sign must slow to a reasonable speed and, when safe to do so, may proceed through the intersection without stopping. A bicyclist approaching an illuminated red traffic control signal must stop at the intersection and, when safe to do so, may proceed through the intersection.
  • SB 18-177 – “Concerning Procedures when Certain Private Schools Cease Operations,” by Sens. Kevin Priola & Nancy Todd and Reps. Jeff Bridges & Lang Sias. Under existing law, private occupational schools and certain private degree-granting schools are required to provide a bond or other form of surety that is used to facilitate transfer or to provide tuition and fee reimbursement for students in the event that the school closes. When a private occupational school closes, that school’s records must be maintained by the private occupational school board in the Division of Private Occupational Schools. The bill allows the Department of Education to make a claim on a surety bond for reimbursement of actual administrative costs associated with a school closure.
  • HB 18-1193 – “Concerning the Advanced Placement Incentives Pilot Program, and, in Connection Therewith, Making an Appropriation,” by Reps. James Wilson & Barbara McLachlin and Sens. Ray Scott & Rachel Zenzinger. The bill extends the pilot program three years. It requires the Department of Education to report the number of students in the pilot program who enrolled in advanced placement courses during the prior school year and to collect disaggregated data from the advanced placement exam vendor to capture the performance of students who are participating in the pilot program on the end-of-course advanced placement exams.
  • HB 18-1250 – “Concerning an Analysis to Improve Compliance with Departmental Rules by Regulated Businesses,” by Reps. Tracy Kraft-Tharp & Lang Sias and Sen. Kevin Priola. The bill equires each state agency to conduct an analysis of noncompliance with its rules to identify rules with the greatest frequency of noncompliance, rules that generate the greatest amount of fines, how many first-time offenders were given the opportunity to cure a minor violation, and what factors contribute to noncompliance by regulated businesses. The analysis will guide each department on how to improve its education and outreach to regulated businesses on compliance with the department’s rules.
  • HB 18-1257 – “Concerning a Correction to House Bill 16-1316 by Reinserting the Word ‘Not,'” by Rep. Paul Rosenthal and Sen. John Cooke. House Bill 16-1316 amended the venue statute for transferring child welfare proceedings between counties and inadvertently struck the word ‘not’ in one sentence. Due to this error, courts are not allowed to transfer child welfare proceedings between counties after adjudication even though the intent of House Bill 16-1316 was to allow post-adjudication transfers. The bill reinserts the word ‘not’ to allow such transfers.
  • HB 18-1264 – “Concerning Measures to Clarify the Scope of Revenge Porn Criminal Offenses,” by Reps. Dominique Jackson & Terri Carver and Sens. John Cooke & Rhonda Fields. Currently, Colorado criminalizes posting nude images of another person for harassment purposes or for pecuniary gain. The bill adds images of sex acts that may not include nude images, removes the requirement that the defendant intend to inflict serious emotional distress removes as an exception to the crimes that the image relates to a newsworthy event, and clarifies that the images subject to the crimes may be disclosed by law enforcement personnel, human or social services personnel, prosecutors, and court personnel in the course of their normal business.

For a complete list of the governor’s 2018 legislative actions, click here.

Bills Signed Allowing Out-of-State Workers in Colorado Access to Workers’ Compensation Benefits, Allowing Dispensary Employees to Sample Marijuana, and More

On Monday, April 30, 2018, Governor Hickenlooper signed 21 bills into law and sent one bill to the Secretary of State without a signature. To date, he has signed 204 bills and sent two to the Secretary of State without signature. Some of the bills signed Monday include the Long Appropriations Bill, a bill providing access to workers’ compensation benefits for out-of-state workers temporarily in Colorado, a bill requiring fingerprint-based background checks for employees with access to federal tax information, and more. The bills signed on Monday are summarized here.

  • HB 18-1069 – “Concerning the Allowable Uses of Reclaimed Domestic Wastewater, and, in Connection Therewith, Allowing Reclaimed Domestic Wastewater to Be Used for Toilet Flushing and Making an Appropriation,” by Reps. Jeni James Arndt & Dan Thurlow and Sen. Don Coram. The bill codifies rules promulgated by the water quality control commission of the Colorado Department of Public Health and Environment concerning allowable uses of reclaimed domestic wastewater, which is wastewater that has been treated for subsequent reuses other than drinking water.
  • HB 18-1186 – “Concerning the Continuation of the Colorado Youth Advisory Council, and, in Connection Therewith, Implementing the Sunset Review Recommendations of the Department of Regulatory Agencies and Making an Appropriation,” by Reps. James Wilson & Judy Reyhar and Sen. Vicki Marble. The bill implements the recommendation of the department of regulatory agencies to concerning the Colorado youth advisory council and extends the sunset date to September 1, 2023.
  • HB 18-1259 – “Concerning Providing Marijuana Samples to Employees for Business Purposes,” by Rep. Matt Gray and Sen. Vicki Marble. The bill permits a medical marijuana optional premises cultivation licensee, a medical marijuana-infused products manufacturing licensee, a retail marijuana cultivation facility licensee, and a retail marijuana products manufacturing licensee to provide samples to managers for quality control and product development purposes. The bill specifies limits on the amount that can be provided as a sample per batch.
  • HB 18-1284 – “Concerning the Cost of Prescription Drugs Purchased at a Pharmacy,” by Reps. Janet Buckner & James Wilson and Sens. Beth Martinez Humenik & John Kefalas. The bill enacts the ‘Patient Drug Costs Savings Act.’ The act prohibits a carrier that has a contract with a pharmacy or pharmacist, or a pharmacy benefit management firm acting on behalf of a carrier, from preventing a pharmacist from disclosing the cost of prescription drugs or requiring a pharmacy to collect a copay that exceeds the pharmacy’s costs.
  • HB 18-1308 – “Concerning an Exemption from the “Workers’ Compensation Act of Colorado” for Nonresident Employers whose Employees are Temporarily Working in Colorado,” by Reps. Tracy Kraft Tharp & Jon Becker and Sens. Owen Hill & Daniel Kagan. The bill establishes an exemption from the ‘Workers’ Compensation Act of Colorado’ for an out-of-state employer whose employees are working in Colorado on a temporary basis as long as the employer furnishes workers’ compensation coverage in the state in which the employee is regularly employed and the home state is contiguous to Colorado.
  • HB 18-1322 – “Concerning the Provision for Payment of the Expenses of the Executive, Legislative, and Judicial Departments of the State of Colorado, and of its Agencies and Institutions, For and During the Fiscal Year Beginning July 1, 2018, Except as Otherwise Noted,” by Rep. Millie Hamner and Sen. Kent Lambert. This is the Long Appropriations Bill, which budgets for various monies to be applied to different state agencies.
  • HB 18-1323 – “Concerning Transfers of Money to a Newly Created Office of State Planning and Budgeting Youth Pay for Success Initiatives Account within the Pay for Success Contracts Fund, and, in Connection Therewith, Making an Appropriation,” by Rep. Bob Rankin and Sen. Dominick Moreno. The bill requires the state treasurer to transfer specified amounts from the general fund and the marijuana tax cash fund to a newly created Office of State Planning and Budgeting Youth Pay for Success Initiatives account within the pay for success contracts fund for state fiscal years 2018-19 through 2021-22.
  • HB 18-1324 – “Concerning the Continuation of the Governor’s Commission on Community Service, and, in Connection Therewith, Making an Appropriation,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill codifies the existing governor’s commission on community service, which was created through executive order.
  • HB 18-1325 – “Concerning Measures to Address Coverage Gaps in the Statewide Digital Trunked Radio System, and, in Connection Therewith, Making an Appropriation,” by Reps. Millie Hamner & Bob Rankin and Sen. Kent Lambert. The statewide digital trunked radio system (DTRS) provides interoperable radio communications that allow personnel from multiple agencies in different levels of government to rapidly share information and coordinate efforts in emergency situations. The General Assembly established the public safety communications trust fund for the acquisition and maintenance of public safety communications systems, including the DTRS.
  • HB 18-1326 – “Concerning Support for Persons Interested in Transitioning from an Institutional Setting, and, in Connection Therewith, Making and Reducing Appropriations,” by Rep. Dave Young and Sen. Kent Lambert. The bill directs the Department of Health Care Policy and Financing to provide community transition services and supports to persons who are in an institutional setting, who are eligible for Medicaid, and who desire to transition to a home- or community-based setting.
  • HB 18-1328 – “Concerning the Children’s Habilitation Residential Waiver Program, and, in Connection Therewith, Making and Reducing an Appropriation,” by Rep. Dave Young and Sens. Kent Lambert & Dominick Moreno. The bill directs the Department of Health Care Policy and Financing to initiate a stakeholder process for purposes of preparing and submitting a redesigned children’s habilitation residential program waiver for federal approval that allows for home- and community-based services for children with intellectual and developmental disabilities who have complex behavioral support needs.
  • HB 18-1331 – “Concerning Expanding the Use of Open Educational Resources at Public Institutions of Higher Education, and, in Connection Therewith, Creating the Colorado Open Educational Resources Council, Creating a Grant Program to Support the Creation and Use of Open Educational Resources, and Making an Appropriation,” by Reps. Dave Young & Bob Rankin and Sen. Kevin Lundberg. The bill creates the Colorado open educational resources council in the Department of Higher Education and assigns tasks to the new council.
  • HB 18-1332 – “Concerning Creation of a Grant Program to Support Collaborative Educator Preparation Initiatives to Address the Teacher Shortage in Colorado, and, in Connection Therewith, Making an Appropriation,” by Reps. Millie Hamner & Bob Rankin and Sen. Dominick Moreno. The bill creates in the Department of Higher Education the collaborative educator preparation grant program to support joint initiatives among educator preparation programs, alternative teacher programs, school districts, boards of cooperative services, and public schools for preparing and placing educators.
  • HB 18-1333 – “Concerning Part C Child Find Responsibilities of State Departments, and, in Connection Therewith, Making an Appropriation,” by Rep. Dave Young and Sen. Kent Lambert. The bill defines ‘early intervention evaluations’ as evaluations performed pursuant to part C child find. The bill requires the state Department of Human Services and the Department of Education to enter into an interagency agreement to study the administration of early intervention evaluations. The departments are required to enter into the agreement by October 1, 2018, and to report the results of the study performed pursuant to the agreement to the joint budget committee by June 30, 2019.
  • HB 18-1334 – “Concerning an Extension of the Transitional Jobs Program, and, in Connection Therewith, Making an Appropriation,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill extends the transitional jobs program for five more years.
  • HB 18-1336 – “Concerning the Repeal of the Local Government Retail Marijuana Impact Grant Program,” by Rep. Dave Young and Sen. Kent Lambert. On July 1, 2019, the bill repeals the local government retail marijuana impact grant program, under which the Department of Local Affairs awards grants to eligible local governments for documented marijuana impacts.
  • HB 18-1337 – “Concerning a Veterans One-stop Center in Grand Junction, and, in Connection Therewith, Making an Appropriation,” by Reps. Millie Hamner & Bob Rankin and Sen. Kent Lambert. The bill provides that on and after November 1, 2018, the Division of Veterans Affairs in the Department of Military and Veterans Affairs may operate a veterans one-stop center in Grand Junction for the purpose of providing a central and accessible location where veterans, service members, and their family members in the western portion of the state may have access to assistance and resources.
  • HB 18-1339 – “Concerning a Requirement for Fingerprint-Based Criminal History Record Checks for Individuals with Access to Federal Tax Information, and, in Connection Therewith, Making an Appropriation,” by Rep. Bob Rankin and Sen. Kent Lambert. The bill requires fingerprint-based criminal history record checks for every applicant, contractor, employee, or other individual who has or may have access to federal tax information received from the federal government by a state agency in accordance with federal Internal Revenue Service Publication 1075.
  • SB 18-066 – “Concerning an Extension of the Operation of the State Lottery Division Beyond July 1, 2024,” by Sens. Jerry Sonnenberg & Leroy Garcia and Reps. Jeni James Arndt & Cole Wist. The bill extends the scheduled termination on July 1, 2024, of the state lottery division in the Department of Revenue to July 1, 2049.
  • SB 18-195 – “Concerning a Requirement that the Money in the Healthcare Affordability and Sustainability Fee Cash Fund be Appropriated Annually rather than Continuously Appropriated,” by Sen. Dominick Moreno and Rep. Bob Rankin. Current law specifies that money in the healthcare affordability and sustainability fee cash fund is continuously appropriated to the Colorado healthcare affordability and sustainability enterprise for specified healthcare related purposes. Beginning with state fiscal year 2018-19, the bill makes the expenditure of money from the fund by the enterprise subject to annual appropriation by the General Assembly.
  • SB 18-202 – “Concerning the Exemption of the Colorado Firefighting Air Corps Fund from the Maximum Reserve,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill exempts the Colorado firefighting air corps fund from the maximum reserve, which currently limits the year-end uncommitted reserves in the cash fund to 16.5% of the amount expended from the cash fund during the fiscal year.

Additionally, on Monday, the Governor sent one bill to the Secretary of State without a signature. That bill was HB 18-1093, “Concerning the Allowable Uses of Reclaimed Domestic Wastewater, and, in Connection Therewith, Allowing Reclaimed Domestic Wastewater to Be Used for Food Crops and Making an Appropriation,” by Rep. Jeni James Arndt and Sen. Don Coram. The bill codifies rules promulgated by the water quality control commissio of the Colorado Department of Public Health and Environment concerning allowable uses of reclaimed domestic wastewater, which is wastewater that has been treated for subsequent reuses other than drinking water.

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

Colorado Supreme Court: Owner-Director of Nonprofit School is Not “Public Employee”

The Colorado Supreme Court issued its opinion in People v. Rediger on Monday, April 30, 2018.

Public Employee—Invited Error—Waiver—Constructive Amendment—Plain Error Review.

This case required the supreme court to decide two questions: (1) whether the owner–director of a nonprofit school regulated by various governmental entities is a “public employee” within the meaning of C.R.S. § 18-9-110(1), and (2) whether respondent waived or invited error with respect to a constructive amendment claim when his defense counsel stated that he was “satisfied” with the proposed jury instructions, notwithstanding the fact that the elemental instruction on the charge of interference with the staff, faculty, or students of an educational institution tracked C.R.S. § 18-9-109(1)(b) rather than C.R.S. § 18-9-109(2), which was the subsection charged in the information.

As to the first question, the court concluded that “public employee” means an employee of a governmental entity, and therefore an employee of a nonprofit school is not a public employee. Accordingly, the court agreed with the court of appeals division’s decision that respondent’s conviction for interference with a public employee in a public building cannot stand.

As to the second question, the court concluded that respondent neither waived nor invited error with respect to his constructive amendment claim because the record does not indicate that he or his counsel either intentionally relinquished a known right or deliberately injected the erroneous jury instruction as a matter of trial strategy. The court instead construed respondent’s general acquiescence to the instructions as a forfeiture and, reviewing for plain error, concluded that the constructive amendment of respondent’s charging document constituted plain error necessitating a new trial.

The court affirmed in part and reversed in part the court of appeals division’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Colorado Wage Claim Act Does Not Categorically Bar Plaintiff from Piercing Corporate Veil

The Colorado Court of Appeals issued its opinion in Paradine v. Goei on Thursday, April 19, 2018.

Wage Claim Act—Corporations—Piercing the Corporate Veil.

Plaintiff served as the chief financial officer and vice president of administration for Aspect Technologies, Inc. (Aspect), a corporation. Defendant Goei was the chief executive officer. Plaintiff sued Goei and Aspect, raising a claim under the Colorado Wage Claim Act (the Act), for fraud, and for breach of contract. He alleged that defendants owed him unpaid wages. The trial court granted Goei’s motion for judgment on the pleadings and dismissed the three claims against him individually with prejudice.

On appeal, plaintiff asserted that he was not barred from piercing the corporate veil and holding Goei personally liable under the Act. The Act does not categorically bar a plaintiff from piercing the corporate veil to hold an individual liable for unpaid wages. Plaintiff’s fraud claim made allegations in support of his request that the trial court pierce the corporate veil to impose liability on Goei, and plaintiff’s breach of contract claim incorporated the allegations in the fraud claim. Because plaintiff pleaded sufficient facts to establish a plausible claim that plaintiff could pierce the corporate veil, the trial court erred when it granted Goei’s motion to dismiss on the pleadings.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Bills Signed Regarding Ground Water Commission Approval of Aquifer Storage and Recovery Plans, Repealing Procedures to Fill Municipal Vacancies, and More

On Monday, April 9, 2018, Governor Hickenlooper signed 12 bills into law. To date, he has signed 126 bills into law and sent one to the Secretary of State without a signature. The bills signed Monday include a bill to increase transparency in higher education statutes concerning military service, a bill repealing procedures to fill vacancies in candidate nominations for municipal elections, a bill allowing the Colorado Oil and Gas Commission to roll-over its year-end balances in order to facilitate financing, and more. The bills signed Monday are summarized here.

  • SB 18-107 – “Concerning the Repeal of Procedures to Fill Vacancies in Candidate Nominations for Elections Conducted under the ‘Colorado Municipal Code of 1965,'” by Sen. Rachel Zenzinger and Rep. Dan Thurlow. The bill repeals the process by which a vacancy in nomination may be filled for an election conducted under the ‘Colorado Municipal Code of 1965’ and makes conforming amendments.
  • HB 18-1098 – “Concerning the Expanded Ability of the Colorado Oil and Gas Conservation Commission to Finance the Remediation of Oil and Gas Locations,” by Reps. Lori Saine & Matt Gray and Sen. Vicki Marble. Under current practice, expenditures by the Colorado oil and gas conservation commission to address the mitigation of adverse environmental impacts of oil and gas operations are paid from the environmental response account of the oil and gas conservation and environmental response fund, and the year-end balance of the account transfers into the fund. The bill specifies that the year-end balance of the account remains in the account.
  • HB 18-1112 – “Concerning Covered Health Care Services Provided by a Pharmacist,” by Reps. Jon Becker & Daneya Esgar and Sen. Larry Crowder. The bill requires a health benefit plan to provide coverage for health care services provided by a pharmacist if the services are provided within a health professional shortage area and the health benefit plan provides coverage for the same services provided by a licensed physician or advanced practice nurse.
  • HB 18-1134 – “Concerning Eligibility of Kindergarten Students Funded through Early Childhood At-risk Enhancement Positions,” by Reps. Brittany Pettersen & James Wilson and Sens. Michael Merrifield & Beth Martinez Humenik. If a district chooses to use early childhood at-risk enhancement (ECARE) positions to enroll children in the district’s full-day kindergarten program, children using the ECARE positions must satisfy at least one of the eligibility requirements of the Colorado preschool program.
  • HB 18-1145 – “Concerning the Repeal of Laws Regulating Ballot Issue Petition Circulators that have been Permanently Enjoined from Enforcement,” by Rep. Edie Hooten and Sen. Dominick Moreno. The bill repeals laws ordered permanently enjoined from enforcement in Independence Inst. v. Gessler , 936 F. Supp. 2d 1256 (D. Colo. 2013).
  • HB 18-1148 – “Concerning the Prohibition Against a Carrier Requiring Step Therapy for Covered Persons with Stage Four Advanced Metastatic Cancer,” by Rep. Dafna Michaelson Jenet and Sen. Larry Crowder. The bill prohibits a carrier that issues a health benefit plan that covers treatment for stage four advanced metastatic cancer from requiring a cancer patient to undergo step therapy prior to receiving a drug approved by the United States food and drug administration if use of the approved drug is consistent with best practices for treatment of the cancer and as long as the drug is on the carrier’s prescription drug formulary.
  • HB 18-1172 – “Concerning Money Allocated from an Appropriation from the Marijuana Tax Cash Fund to a Designated Managed Service Organization to Implement its Community Action Plan,” by Rep. Dave Young and Sen. Kent Lambert. The bill amends the ‘Increasing Access to Effective Substance Use Disorder Services Act’ to clarify that a designated managed service organization (designated MSO) may use money allocated to it from the marijuana tax cash fund for expenditures for substance use disorder services and for any start-up costs or other expenses necessary to increase capacity to provide such services and may allow allocations to roll forward.
  • HB 18-1199 – “Concerning a Process for the Ground Water Commission to Use for Approving Aquifer Storage-and-Recovery Plans, and, in Connection Therewith, Requiring that the Ground Water Commission Promulgate Rules Governing its Implementation of the Process,” by Reps. Marc Catlin & Barbara McLaughlin and Sen. Don Coram. The bill authorizes a person to apply to the ground water commission (commission) for approval of an aquifer storage-and-recovery plan and requires the commission to promulgate rules governing the application process and the requirements that an aquifer storage-and-recovery plan must meet to be approved.
  • HB 18-1228 – “Concerning Increasing Transparency in Higher Education Statutes Relating to Military Service,” by Reps. Justin Everett & Dafna Michaelson Jenet and Sen. Leroy Garcia. The bill creates a new article 7.4 in title 23, Colorado Revised Statutes, with the article heading ‘Military Members, Veterans, and Dependents’, in order to locate physically within the same article, whenever practicable, higher education provisions relating to the military.
  • HB 18-1238 – “Concerning the Continuation of the Wildland-Urban Interface Training Advisory Board, and, in Connection Therewith, Implementing the Recommendations of the 2017 Sunset Report by the Department of Regulatory Agencies,” by Reps. Dominique Jackson & Marc Catlin and Sen. Vicki Marble. The bill implements the recommendation of the Department of Regulatory Agencies to sunset the wildland-urban interface training advisory board.
  • HB 18-1246 – “Concerning Updates to the “Colorado Nursery Act”, and, in Connection Therewith, Modernizing the Act and Protecting Agriculture from Pests, Diseases, and Noxious Weeds,” by Rep. Jessie Danielson and Sen. Don Coram. The bill updates the ‘Colorado Nursery Act’, last amended in 2009, to protect nursery stock.
  • HB 18-1293 – “Concerning Payment of Expenses of the Legislative Department,” by Reps. Crisanta Duran & Patrick Neville and Sens. Kevin Grantham & Lucia Guzman. The bill makes appropriations for matters related to the legislative department for the 2018-19 state fiscal year.

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

Colorado Supreme Court: Only Privilege-Holder Can Waive Physician-Patient Privilege, and Only By Injecting Condition Into Case

The Colorado Supreme Court issued its opinion in Gadeco, LLC v. Grynberg on Monday, April 9, 2018.

Physician-Patient Privilege—Implied Waiver.

In this original proceeding, the supreme court considered whether the trial court abused its discretion when it found that defendant impliedly waived the physician-patient privilege as to his mental health records by asserting counterclaims for breach of contract, requesting specific performance, and denying the opposing parties’ allegations. The court affirmed its rule that only privilege holders—patients—can impliedly waive the physician-patient privilege, and they do so by injecting their physical or mental condition into the case as the basis of a claim or an affirmative defense. Correspondingly, an adverse party cannot place a patient’s mental condition at issue through its defenses, nor can a privilege holder do so by denying an adverse party’s allegations. Applying those rules, the court held that defendant did not waive the physician-patient privilege through his counterclaims or answer. The court concluded that the trial court abused its discretion by ordering defendant to produce his medical records for in camera review and made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

Bills Signed Regarding Fiduciary Duties of Title Insurance Entities, Public Official Oaths and Affirmations, and More

On Thursday, March 29, 2018, the governor signed 17 bills into law. He also signed 16 bills into law on Monday, April 2, 2018. To date, Governor Hickenlooper has signed 114 bills this legislative session and sent one to the Secretary of State without a signature. The bills signed Thursday and Monday include a bill concerning the fiduciary duties of title insurance entities with regard to funds held for closing, a bill exempting physicians who treat patients with rare disorders from non-compete agreements, several bills updating outdated statutory language, bills regarding financing broadband for rural areas, a bill requiring reporting when title to a motor vehicle has been transferred, and more. The bills signed Thursday and Monday are summarized here.

  • HB 18-1012 – “Concerning Vision Care Plans for Eye Care Services,” by Reps. Jon Becker & Susan Lontine and Sens. Kevin Lundberg & Irene Aguilar. The bill prohibits a carrier or entity that offers a vision care plan from requiring an eye care provider with whom the carrier or entity contracts to provide services at a set fee, charge a person for noncovered services, or participate in a carrier’s other vision plan networks.
  • HB 18-1091 – “Concerning Dementia Diseases, and, in Connection Therewith, Updating Statutory References to Dementia Diseases and Related Disabilities,” by Reps. Susan Beckman & Joann Ginal and Sens. Jim Smallwood & Nancy Todd. The bill updates statutory references to Alzheimer’s and other dementia diseases and reflects that dementia diseases have related disabilities impacting memory and other cognitive abilities.
  • HB 18-1099 – “Concerning Criteria that the Broadband Deployment Board is Required to Develop with Regard to an Incumbent Telecommunications Provider’s Exercise of a Right to Implement a Broadband Deployment Project in an Unserved Area of the State Upon a Nonincumbent Provider’s Application to the Broadband Deployment Board to Implement a Proposed Broadband Deployment Project in the Unserved Area,” by Reps. Marc Catlin & Barbara McLaughlin and Sen. Don Coram. The bill requires that the Broadband Deployment Board’s criteria include requirements that an incumbent telecommunications provider exercising its right to implement a broadband deployment project for the unserved area agree to provide demonstrated downstream and upstream speeds equal to or faster than the speeds indicated in the applicant’s proposed project and at a cost per household that is equal to or less than the cost per household indicated in the applicant’s proposed project.
  • HB 18-1103 – “Concerning the Ability of a Local Government to Require a Driver to Meet Safety Standards for the Use of an Off-highway Vehicle,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill clarifies that a local government does not violate state rules if it imposes certain requirements on a driver of an off-highway vehicle.
  • HB 18-1130 – “Concerning Increasing the Availability of Qualified Personnel who are Licensed in Another State to Teach in Public Schools,” by Reps. Dave Williams & Jeni James Arndt and Sen. Bob Gardner. The bill changes requirements for special education teacher requirements from 3 years of continuous experience to 3 years of experience within the previous 7 years.
  • HB 18-1137 – “Concerning the Scheduled Repeal of Reports to the General Assembly, and, in Connection Therewith, Continuing the Requirements for Reports by the Department of Transportation and the Department of Public Safety,” by Rep. Hugh McKean and Sen. Rachel Zenzinger. The bill continues reporting requirements of the Departments of Transportation and Public Safety.
  • HB 18-1138 – “Concerning Standardizing Public Official Oaths of Office, and, in Connection Therewith, Providing a Uniform Oath Text and Establishing Requirements for Taking, Subscribing, Administering, and Filing Public Oaths of Office,” by Rep. Jeni James Arndt and Sen. Rachel Zenzinger. The bill establishes a single uniform text for swearing or affirming an oath of office and the requirements regarding how and when an oath or affirmation of office must be taken, subscribed, administered, and filed.
  • HB 18-1139 – “Concerning the Removal of Outdated Statutory References to Repealed Reporting Requirements that were Previously Imposed on the Parks and Wildlife Commission with Regard to its Rule-making Authority to Set Fees,” by Rep. Edie Hooten and Sen. Rachel Zenzinger. The bill removes obsolete references to a statutory subsection that was repealed on September 1, 2017.
  • HB 18-1158 – “Concerning a Supplemental Appropriation to the Department of Corrections,” by Rep. Millie Hamner and Sen. Kent Lambert. The bill makes a supplemental appropriation to the Department of Corrections.
  • HB 18-1171 – “Concerning Adjustments in the Amount of Total Program Funding for Public Cchools for the 2017-18 Budget Year, and, in Connection Therewith, Making and Reducing an Appropriation,” by Rep. Millie Hamner and Sen. Kevin Lundberg. The bill adjusts the minimum amount of total program funding specified in statute to reflect this intent for the actual funded pupil count and the actual at-risk pupil count.
  • HB 18-1196 – “Concerning Authorization to Verify the Disability of an Applicant to the Aid to the Needy Disabled Program,” by Rep. Tony Exum and Sens. Nancy Todd & Beth Martinez Humenik. Under current law, in order to receive assistance under the aid to the needy disabled program, an applicant must be examined by a physician, physician assistant, advanced practice nurse, or registered nurse. The bill adds to the list of persons authorized to perform an examination a licensed psychologist, or any other licensed or certified health care personnel the department of human services deems appropriate.
  • HB 18-1233 – “Concerning a Consumer Reporting Agency’s Placement of a Security Freeze on the Consumer Report of a Consumer who is Under the Charge of a Representative at the Request of the Consumer’s Representative,” by Reps. Crisanta Duran & Polly Lawrence and Sens. Stephen Fenberg & Bob Gardner. The bill authorizes a parent or legal guardian (representative) to request that a consumer reporting agency place a security freeze on the consumer report of either a minor less than 16 years of age or another individual who is a ward of the representative (protected consumer).
  • SB 18-002 – “Concerning the Financing of Broadband Deployment,” by Sens. Don Coram & Jerry Sonnenberg and Reps. KC Becker & Crisanta Duran. The bill amends the definition of ‘broadband network’ to increase the speed of downstream broadband internet service from at least 4 megabits per second to at least 10 megabits per second and the definition of ‘unserved area’ to refer to an area that is unincorporated, or within a city with a population of fewer than 7,500 inhabitants, and that is not receiving federal support to construct a broadband network to serve a majority of the households in each census block in the area, and requires the PUC to allocate money.
  • SB 18-028 – “Concerning the Repeal of Certain Requirements for Where a License Plate is Mounted on a Motor Vehicle,” by Sen. Ray Scott and Rep. Jeff Bridges. Current law requires each license plate to be at the approximate center of a motor vehicle and at least 12 inches from the ground. The bill repeals this requirement for the front license plate and replaces it with a requirement that the front license plate be mounted horizontally on the front in the location designated by the manufacturer.
  • SB 18-073 – “Concerning Reporting to the Department of Revenue when Ownership of a Motor Vehicle has been Transferred,” by Sen. Jim Smallwood and Reps. Kim Ransom & Leslie Herod. The bill creates a voluntary program administered by the Department of Revenue that authorizes the owner of a motor vehicle to report a transfer of ownership of the motor vehicle. If the previous owner reports the transfer to the Department, the previous owner is not subject to liability for the misuse of the vehicle.
  • SB 18-074 – “Concerning Adding Individuals with Prader-Willi Syndrome to the List of Persons with Intellectual and Developmental Disabilities,” by Sen. Nancy Todd and Rep. Chris Hansen. The bill adds Prader-Willi syndrome to the list of persons who have mandatory eligibility for services and supports and also to the definition of an ‘intellectual and developmental disability’ for the purpose of receiving services and supports.
  • SB 18-082 – “Concerning a Physician’s Right to Provide Continuing Care to Patients with Rare Disorders Despite a Covenant Not to Compete,” by Sen. Rachel Zenzinger and Sen. Chris Kennedy. The bill exempts physicians who provide care to patients with rare diseases from non-compete agreements.
  • SB 18-090 – “Concerning ‘Rights of Married Women,'” by Sen. Rachel Zenzinger and Rep. Edie Hooten. The bill modernizes the language in statutory sections concerning the “rights of married women” to be inclusive of married men and women.
  • SB 18-095 – “Concerning the Removal of Statutory References to the Marital Status of Parents of a Child,” by Sens. Rachel Zenzinger & Beth Martinez Humenik and Reps. Edie Hooten & Hugh McKean. The bill removes or modernizes outdated statutory references to a ‘legitimate’ or ‘illegitimate’ child and a ‘child born out of wedlock’. Colorado only recognizes parentage of a child and acknowledges that the parent and child relationship extends equally to every child and every parent, regardless of the marital status of the parents.
  • SB 18-098 – “Concerning Amending a Statutory Provision Relating to Interest on Damages that was Ruled Unconstitutional by the Colorado Supreme Court,” by Sens. Jack Tate & Rachel Zenzinger and Reps. Edie Hooten & Dan Thurlow. The bill amends C.R.S. § 13-21-101 (1), concerning interest on damages, to reflect a 1996 decision made by the Colorado Supreme Court that ruled certain language in that subsection violated the equal protection clause of the constitution.
  • SB 18-099 – “Concerning the Alignment of Early Childhood Quality Improvement Programs with the Colorado Shines Quality Rating and Improvement System,” by Sens. Michael Merrifield & Kevin Priola and Reps. Brittany Pettersen & James Wilson. The bill amends the application and eligibility requirements for the school-readiness quality improvement program and the infant and toddler quality and availability grant program to align with the Colorado shines quality rating and improvement system to streamline the administration of the programs.
  • SB 18-102 – “Concerning the Requirement for an Odometer Reading when a Motor Vehicle’s Identification Number is Physically Verified,” by Sens. Jack Tate & Rachel Zenzinger and Reps. Edie Hooten & Dan Thurlow. The bill repeals the requirement that the odometer be read when a motor vehicle’s identification number is physically verified.
  • SB 18-104 – “Concerning a Requirement that the Broadband Deployment Board File a Petition with the Federal Communications Commission to Seek a Waiver from the Commission’s Rules Prohibiting a State Entity from Applying for Certain Federal Money Earmarked for Financing Broadband Deployment in Remote Areas of the Nation,” by Sen. Kerry Donovan and Reps. Yeulin Willett & Barbara McLaughlin. The bill requires the broadband deployment board, on or before January 1, 2019, to petition the federal communications commission (FCC) for a waiver from the FCC’s rules prohibiting a state entity from applying for federal money earmarked for broadband deployment in remote areas of the nation through the remote areas fund created as part of the connect America fund established by the FCC.
  • SB 18-111 – “Concerning the Removal of an Obsolete Date in the Law that Designates State Legal Holidays,” by Sen. Jack Tate and Rep. Jeni James Arndt. Current law specifies that if executive branch employees who are in the state personnel system are required to work on a state legal holiday, the employees shall receive an alternate day off or be paid in accordance with the state personnel system or state fiscal rules in effect on April 30, 1979. The state fiscal rules in effect in 1979 have been amended numerous times since that time and are no longer applicable or relevant. The bill removes the reference to April 30, 1979.
  • SB 18-121 – “Concerning Certain Expenses Allowed to a State Employee when the Employee is Required to Change his or her Place of Residence in Connection with a Change in Job Duties,” by Sen. Jack Tate and Rep. Jeni James Arndt. Current law allows an employee in the state personnel system his or her moving and relocation expenses if an appointing authority requires the employee to change his or her place of residence due to a change in job duties. The bill specifies that moving expenses, including the reasonable expenses of moving household goods and personal effects and the reasonable costs of traveling to a new residence, are reimbursable in accordance with rules promulgated by the state controller and in compliance with the regulations of the federal internal revenue service.
  • SB 18-125 – “Concerning Fiduciary Responsibilities of Title Insurance Entities to Protect Funds held in Conjunction with Real Estate Closing Settlement Services,” by Sens. Bob Gardner & Daniel Kagan and Rep. Pete Lee. The bill requires title insurance entities and affiliates or subsidiaries to hold funds belonging to others in a fiduciary capacity. ‘Fiduciary funds’ means all funds received in conjunction with real estate closing and settlement services.
  • SB 18-131 – “Concerning Modifications to the “State Employees Group Benefits Act,” by Sen. Jack Tate and Rep. Edie Hooten. The bill modifies several provisions of the State Employees Group Benefits Act to bring it into compliance with current state and federal law and to eliminate obsolete provisions.
  • SB 18-134 – “Concerning the Exemption of Nonprofit Water Companies from Regulation by the Public Utilities Commission,” by Sen. John Cooke and Rep. Jeni James Arndt. Under current law, the public utilities commission is directed to grant simplified regulatory treatment to water companies that serve fewer than 1,500 customers. The bill expands on this concept by deregulating water companies that are registered as nonprofits, so long as their rates, charges, and terms and conditions of service are just and reasonable.
  • SB 18-135 – “Concerning Updates to the Colorado Code of Military Justice,” by Sen. Bob Gardner and Reps. Terri Carver & Pete Lee. The bill updates several parts of the Colorado Code of Military Justice.
  • SB 18-138 – “Concerning Authorization for Retail Sellers of Alcohol Beverages for On-premises Consumption to Sell Remaining Inventory to Another On-premises Retail Seller of Alcohol Beverages with whom there is Common Ownership when No Longer Licensed to Sell Alcohol Beverages for On-premises Consumption,” by Sens. Bob Gardner & Andy Kerr and Reps. Matt Gray & Larry Liston. The bill allows persons with certain retail licenses to purchase alcohol beverages from another retail licensee when there is common ownership between the licensees and the seller has surrendered its license within the last 60 days.
  • SB 18-160 – “Concerning the Authority to Operate Certain Teacher Development Programs, and, in Connection Therewith, Establishing Alternative Licensure Programs and Induction Programs,” by Sen. Kent Lambert and Rep. Millie Hamner. Under existing law, school districts are permitted to operate induction programs for teachers, special services providers, principals, and administrators, and alternative licensure programs for teachers and principals, who do not hold professional licenses. The bill clarifies that charter schools and the state charter school institute may operate such programs.
  • SB 18-165 – “Concerning Requirements for Public Administrators,” by Sens. Tim Neville & Nancy Todd and Reps. Faith Winter & Lori Saine. The bill The bill increases the amount of bond public administrators are required to maintain to $100,000 and clarifies additional requirements.
  • SB 18-173 – “Concerning the Ability of Certain Establishments Licensed to Sell Alcohol Beverages for On-premises Consumption that Serve Food to Allow a Customer to Remove One Opened Container of Partially Consumed Vinous Liquor from the Licensed Premises,” by Sen. Bob Gardner and Rep. Leslie Herod. Currently, certain liquor licensees may sell one opened container of partially consumed vinous liquor to a customer if the licensee has meals available for consumption on the licensed premises. The bill expands the requirement to include licensees that makes sandwiches and light snacks available for consumption on the premises.

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

Colorado Court of Appeals: District Courts Must Exercise Reasonable Discretion in Determining the Person for Substituted Service

The Colorado Court of Appeals issued its opinion in Minshall v. Johnston on Thursday, March 22, 2018.

C.R.C.P. 4(f)Substituted ServiceDefault Judgment.

The Minshalls filed a complaint against Johnston. Johnston was not personally served with process; instead, the court permitted substitute service under C.R.C.P. 4(f) on the registered agent of Aries Staffing LLC (Aries), a corporation of which Johnston was a co-owner and shareholder. The district court entered a default judgment against Johnston when he failed to respond to the complaint. Six months after he claimed he learned of the default judgment, Johnston moved pro se to set it aside, arguing that he was not properly served with process. The district court denied the motion.

On appeal, Johnston argued that the judgment against him is void for lack of jurisdiction. He contended that the Minshalls did not exercise due diligence in attempting to serve Johnston personally, which was a necessary condition precedent to serving him by substituted service. It was undisputed that the Minshalls complied with the procedural requirements of Rule 4(f) by filing an affidavit from the process server detailing his numerous unsuccessful attempts to serve Johnston. They also documented numerous other ways they tried to locate and serve Johnston. The record supports the district court’s finding that the Minshalls met the due diligence requirement of the rule.

Johnston also argued that substituted service on Aries’ registered agent, Incorp Services, Inc., was not reasonably calculated to give him actual notice of the suit. The court of appeals found no authority supporting the proposition that service on a registered agent of a corporation is sufficient, by itself, to effectuate valid service on a “co-owner” of a corporation. Here, there was no indication in the record of a separate relationship between Incorp and Johnston or other facts that would support the required finding under Rule 4(f).

The order was vacated. The case was remanded for a determination as to whether service on Incorp under Rule 4(f) was reasonably calculated to give actual notice to Johnston.

Summary provided courtesy of Colorado Lawyer.

Bills Modernizing Statutory Language, Requiring Rent Receipts from Landlords, and More Signed

On Thursday, March 22, 2018, the governor signed 25 bills into law. He also sent one  bill to the Secretary of State without a signature on Friday. To date, he has signed 81 bills and sent one to the Secretary of State without a signature. The bills signed Thursday include several bills modernizing and clarifying statutory language, as well as a bill requiring residential landlords to issue rent receipts, a bill adding two types of protection orders, and more. The bills signed Thursday and passed on Friday are summarized here.

  • SB 18-005 – “Concerning Economic Assistance for Rural Communities Experiencing Certain Significant Economic Events that Lead to Substantial Job Loss in those Communities, and, in Connection Therewith, Authorizing the Department of Local Affairs to Coordinate Nonmonetary Assistance to Assist Rural Communities with Job Creation or Retention,” by Sens. Kerry Donovan & Ray Scott and Rep. Dylan Roberts. The bill authorizes the Executive Director of the Department of Local Affairs (Executive Director) or the Executive Director’s designee to coordinate the provision of nonmonetary resources to assist with job retention or creation in a rural community experiencing a significant economic event, such as a plant closure or layoffs, including industry-wide layoffs, that has a significant, quantifiable impact on jobs within that community.
  • SB 18-009 – “Concerning the Right of Consumers of Electricity to Interconnect Energy Storage Systems for Use on their Property,” by Sens. Kevin Priola & Stephen Fenberg and Reps. Faith Winter & Polly Lawrence. The bill declares that consumers of electricity have a right to install, interconnect, and use energy storage systems on their property, and that this will enhance the reliability and efficiency of the electric grid, save money, and reduce the need for additional electric generation facilities.
  • SB 18-010 – “Concerning the Requirement that a Residential Landlord Provide a Tenant with Specified Documents Relevant to the Landlord-Tenant Relationship, and, in Connection Therewith, Specifying Rent Receipts and Copies of any Written Lease Agreement as Documents that Must be Provided,” by Sens. Beth Martinez Humenik & Angela Williams and Rep. Tony Exum. The bill requires a residential landlord to provide each tenant with a copy of a written rental agreement signed by the parties and to give a tenant a contemporaneous receipt for any payment made in person with cash or a money order. For payments not made in person with cash or a money order, the landlord must provide a receipt if the tenant requests it.
  • SB 18-020 – “Concerning Mental Health Care Professionals who are Permitted to Perform Auricular Acudetox,” by Sen. Leroy Garcia and Rep. Daneya Esgar. The bill allows registered psychotherapists who have documented that they have undergone auricular acudetox training to perform auricular acudetox.
  • SB 18-046 – “Concerning Authorization to Increase the Minimum Donation Required to be Issued a Certificate that Qualifies a Person to be Issued a Group Special License Plate,” by Sen. Dominick Moreno and Reps. Dafna Michaelson Jenet & Faith Winter. The bill authorizes nonprofit organizations to increase by $10 the minimum donation for the issuance of special license plates.
  • SB 18-060 – “Concerning Protective Orders in Criminal Cases,” by Sen. Don Coram and Rep. Millie Hamner. The bill adds 2 new potential protection orders to the list of options available to the court. They are an order prohibiting the taking, transferring, concealing, harming, disposing of, or threatening to harm an animal owned, possessed, leased, kept, or held by the alleged victim or witness; and an order directing a wireless telephone service provider to transfer the financial responsibility for and rights to a wireless telephone number or numbers to the alleged victim or witness if the alleged victim or witness satisfies certain criteria.
  • SB 18-069 – “Concerning Enforcement of Statewide Degree Transfer Agreements,” by Sens. Chris Holbert & Rachel Zenzinger and Reps. Alec Garnett & Jon Becker. If an institution of higher education admits as a junior a transfer student who holds an associate of arts degree, associate of applied science degree, or an associate of science degree that is the subject of a statewide degree transfer agreement, the institution shall not require the student to complete any additional courses to fulfill general education requirements.
  • SB 18-093 – “Concerning the Repeal of Obsolete Provisions in the Colorado Medical Assistance Program Relating to the Inactive Home- and Community-Based Services Waiver for Persons Living with AIDS,” by Sen. Dominick Moreno and Rep. Jeni James Arndt. The bill repeals the inactive home- and community-based services waiver under the Colorado medical assistance program for persons with health complexes related to acquired immune deficiency syndrome (persons living with AIDS waiver).
  • SB 18-101 – “Concerning Student Admission to Colorado State University – Global Campus,” by Sens. Chris Holbert & Nancy Todd and Reps. Millie Hamner & Kevin Van Winkle. The bill removes a prohibition on admitting first-time freshman baccalaureate students who reside in Colorado and who are under 23 years of age.
  • HB 18-1005 – “Concerning Notice of Postsecondary Course Enrollment Options Available to High School Students,” by Reps. Brittany Petterson & Jon Becker and Sen. Kevin Priola. The bill requires a notice to students and parents of postsecondary course opportunities to include information regarding the local education provider’s timelines that affect student eligibility to take these courses and a statement informing students that they may significantly reduce college expenses, increase the likelihood of completing college, and earn marketable workforce skills by taking concurrent enrollment courses.
  • HB 18-1023 – “Concerning the Nonsubstantive Relocation of Laws Related to Legalized Marijuana 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 creates Title 44 and relocates the statutes related to legalized marijuana from Title 12 to Title 44.
  • HB 18-1032 – “Concerning Access to Medical Records from the Department of Public Health and Environment’s EMS Agency Patient Care Database by Health Information Organization Networks,” by Reps. Chris Kennedy & Dan Thurlow and Sens. Rhonda Fields & Jack Tate. The bill requires the Department of Public Health and Environment to provide individualized patient information from the department’s EMS agency patient care database to health information organization networks for any use allowed under the federal “Health Insurance Portability and Accountability Act of 1996.”
  • HB 18-1045 – “Concerning the Application of Silver Diamine Fluoride to Dental Patients,” by Rep. Jonathan Singer and Sen. Jack Tate. The bill allows a dental hygienist to apply silver diamine fluoride under the direct or indirect supervision of a dentist.
  • HB 18-1050 – “Concerning Competency to Proceed for Juveniles Involved in the Juvenile Justice System,” by Rep. Jonathan Singer and Sen. Rhonda Fields. The bill establishes a juvenile-specific definition of ‘competent to proceed’ and ‘incompetent to proceed’ for juveniles involved in the juvenile justice system, as well as specific definitions for ‘developmental disability’, ‘mental capacity’, and ‘mental disability’ when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.
  • HB 18-1051 – “Concerning Statutory Provisions Enacted to Promote the Extinguishment of Unattended Fires,” by Reps. Millie Hamner & Terri Carver and Sens. Don Coram & Michael Merrifield. The bill states that any person who starts or maintains a campfire commits the offense of leaving a campfire unattended if he or she knowingly or recklessly fails to reasonably attend the campfire at all times or fails to thoroughly extinguish the campfire before leaving the site.
  • HB 18-1052 – “Concerning Local Education Providers’ Receipt of Concurrent Enrollment Courses from a Two-year Institution of Higher Education Outside of the Institution’s Approved Service Area when the Institution Approved to Serve the Local Education Provider Declines to Provide Concurrent Enrollment Courses,” by Reps. Paul Lundeen & Jeff Bridges and Sen. Nancy Todd. The bill requires the commission to establish a policy that allows a 2-year institution of higher education to provide a concurrent enrollment program or course to a local education provider that is not within its college service area if the designated 2-year institution of higher education chooses not to provide a concurrent enrollment program or course requested by the local education provider.
  • HB 18-1066 – “Concerning Clarifying that the Law Enforcement and Defense Counsel Exemption for Sexual Exploitation of a Child Crime Does Not Change the Discovery Procedures for Sexually Exploitative Material,” by Reps. Yeulin Willett & Mike Foote and Sen. John Cooke. The bill clarifies that the sexual exploitation of a child statute does not change the discovery procedure for sexually exploitative materials and that the defendant and defense counsel personnel are not allowed to receive copies of the materials.
  • HB 18-1073 – “Concerning Water Districts’ Ability to Enter into Contracts Regarding their Water-related Assets,” by Rep. Matt Gray and Sen. Bob Gardner. The bill authorizes water districts, including water activity enterprises, to enter into contracts for water and the capacity in works and allows the contracts to be based on municipalities’ authority to contract for water and sewer facilities.
  • HB 18-1095 – “Concerning Educator Licenses Issued to Military Spouses,” by Reps. Terri Carver & Jeni James Arndt and Sens. Bob Gardner & Nancy Todd. The bill exempts military spouses from a requirement that teaching or special services experience be continuous, and instead requires 3 years of experience within the previous 7 years.
  • HB 18-1117 – “Concerning Liens that Attach to Personal Property that is Stored at a Self-service Storage Facility,” by Reps. Kevin Van Winkle & James Coleman and Sen. Jack Tate. The bill modifies the law governing the statutory lien that an owner of a self-storage facility has for the occupant’s late payment of rent or other charges.
  • HB 18-1141 – “Concerning the Removal of Outdated References in Statute to ‘Early Childhood Care and Education Councils,'” by Rep. Edie Hooten and Sen. Rachel Zenzinger. The bill removes outdated references in statute to “early childhood care and education councils.” The term is no longer used. Instead, these entities are referred to as “early childhood councils.”
  • HB 18-1142 – “Concerning Modernizing Language in Statutory Sections that Refer to Paupers,” by Reps. Edie Hooten & Dan Thurlow and Sens. Beth Martinez Humenik & Rachel Zenzinger. The bill modernizes the language in statutory sections by replacing the terms ‘pauper’ and ‘paupers’ with ‘indigent’ or ‘indigent persons’.
  • HB 18-1183 – “Concerning the Continuation of the Regulation of Home Food Service Plans Pursuant to the “Sale of Meat Act”, and, in Connection Therewith, Implementing the Department of Regulatory Agencies’ Sunset Review Recommendation to Repeal the Act,” by Reps. Edie Hooten & Kim Ransom and Sen. Randy Baumgartner. The bill implements the recommendation of the Department of Regulatory Agencies, as contained in the Department’s sunset review of home food service plans, by repealing the ‘Sale of Meat Act’, thereby eliminating the regulation of home food service plans by the department of agriculture.
  • HB 18-1210 – “Concerning Peace Officer Status for the Administrator of Judicial Security in the Colorado Judicial Department,” by Rep. Mike Foote and Sen. John Cooke. The bill designates an administrator of judicial security in the Colorado judicial department as a peace officer who must be certified by the peace officer standards and training board.
  • HB 18-1249 – “Concerning the Requirement that the State Treasurer Distribute any Federal Funds Related to the Naval Oil Shale Reserve Land to Specified Counties or their Federal Mineral Lease Districts,” by Reps. Bob Rankin & Millie Hamner and Sen. Kevin Lundberg. If the state receives any federal mineral lease revenue from oil and gas production on naval oil shale reserve land that was set aside prior to January 1, 2009, and withheld by the federal government, then instead of depositing the money in the mineral leasing fund the state treasurer is required to distribute the money to certain counties or a related federal mineral lease district.

The bill that the governor sent to the Secretary of State without a signature was HB 18-1086, “Concerning Allowing Community Colleges to Offer a Bachelor of Science Degree in Nursing,” by Reps. Janet Buckner & Paul Lundeen and Sens. Tim Neville & Irene Aguilar.

For a complete list of the governor’s 2018 legislative actions, click here.

Tenth Circuit: District Court Erred in Excluding Evidence That has the Necessary Effect of a Dismissal

The Tenth Circuit Court of Appeals issued its opinion in HCG Platinum, LLC v. Prederred Product Placement Co. on Tuesday, October 17, 2017.

HCG Platinum, LLC (HCG) and Preferred Product Placement Corporation (PPPC) entered into a marketing and non-circumvention agreement, where PPPC agreed to place HCG products into specified retailers in exchange for a percentage of the proceeds, PPPC would disclose details of negotiations and projects with other business associates, and HCG would be prevented from interfering with PPPC’s agreements with any third-parties. The following year, HCG filed a breach of contract action against PPPC, alleging that PPPC breached the agreement by failing to execute a sales agreement with certain retailers. PPPC filed a counterclaim alleging that HCG breached the agreement by failing to pay outstanding commissions and by interfering with PPPC’s third-party relationships. The damages PPPC put forth were void of evidential support or significant written explanation.

HCG then moved to preclude PPPC from presenting any evidence of damages under the agreement. HCG argued that PPPC’s initial disclosures described projections that would be inadmissible without expert testimony and PPPC should not be able to put on any evidence of damages.

The district court stated that PPPC’s failure to supplement the damages aspect of its initial disclosures meant that PPPC could not introduce evidence of damages unless its discovery deficiency proved harmless or substantially justified. The district court then described an established “four factor test” regarding: (1) the prejudice or surprise to the party against whom the damages evidence would be offered, which is HCG; (2) HCG’s ability to cure that prejudice; (3) the extent to which the introduction of new damages evidence would disrupt the trial; and (4) whether bad faith or willfulness motivated PPPC’s discovery failures.

The district court addressed the fourth factor and found no support for a finding of bad faith. The district court then focused on prejudice and harmlessness and allowed arguments from both parties for the right way to think about the issue. HCG argued that the law compelled exclusion due to PPPC’s failure to disclose precise quantifications of damages, as well as claiming that the prejudice proved incurable and disruptive because reopening discovery and reviewing new documents would be burdensome and expensive. PPPC emphasized that its conduct caused only slight prejudice, which could be easily remedied through limited additional discovery.

The district court concluded that PPPC could not proceed to trial and entered a judgement in favor of HCG. PPPC appealed. The Tenth Circuit Court of Appeals reviewed the district court’s decision.

The Tenth Circuit concluded that the district court abused its discretion by imposing a discovery sanction that barred PPPC from pursing its counterclaims. The court  based this conclusion on the fact that the district court misapplied the four-factor test described above, and found that the record reflected that the district court reached an arbitrary outcome that overlooked all but the last factor of the test.

The Tenth Circuit reversed the district court’s judgment in favor of HCG on PPPC’s counterclaims and remanded to allow the district court to reevaluate the exclusion of PPPC’s damages evidence under the four factor test.

The Tenth Circuit also mentioned that district courts should consider the effectiveness of lesser sanctions, where the exclusion of evidence has the necessary force and effect of a dismissal. There are three reasons for this. First is that dismissal constitutes an extreme sanction that typically is appropriate only in cases of bad faith or willful misconduct. Second, the Federal Rules of Civil Procedure expressly empower the district courts to impose sanctions short of exclusion. And third is the notion that district courts should consider the appropriateness of lesser sanctions, where their discovery rulings have the effect of dismissal, which is in accord with the decisions of other circuits.

The Tenth Circuit held that where the exclusion of evidence has the necessary effect of a dismissal, as in this case, the district courts should, in conjunction with the traditional four factor test, consider the efficacy of less drastic alternatives, reserving the sanction of dismissal for cases involving bad faith or willfulness or instances where less severe sanctions would prove futile.

The Tenth Circuit Court of Appeals REVERSED the district court’s judgment in favor of HCG and REMANDED with instructions that the district court reevaluate the exclusion of PPPC’s damage evidence.