June 24, 2019

Colorado Supreme Court: Court of Appeals Misconstrued Meaning of “Deadly Physical Force”

The Colorado Supreme Court issued its opinion in People v. Opana on Tuesday, May 30, 2017.

Criminal Trials.

The People petitioned for review of the court of appeals’ judgment reversing Opana’s conviction for second degree murder in the shooting death of one of his housemates. See People v. Opana, No. 10CA1987 (Colo. App. May 29, 2014). The district court instructed the jury as to the use of deadly physical force in defense of one’s person. In consideration of the statutory definition of the term “deadly physical force,” which limits the applicability of the term to “force, the intended, natural, and probable consequence of which is to produce death,” the court of appeals determined that there was adequate evidence produced at trial for the jury to have found that Opana used physical force not rising to the level of “deadly” physical force, and it concluded that in this case the failure of the trial court to instruct the jury, sua sponte, on the use of physical force generally amounted to plain error.

The supreme court reversed the judgment of the court of appeals and remanded the case for consideration of defendant’s remaining assignments of error because the court of appeals misconstrued the definition of “deadly physical force,” and when that statutory term is properly construed, the evidence at trial did not support an instruction on self-defense predicated on the use of other-than-“deadly” physical force.

Summary provided courtesy of The Colorado Lawyer.

HB 12-1209: Adoption of Uniform Electronic Legal Material Act

On January 30, 2012, Rep. Bob Gardner and Sen. Morgan Carroll introduced HB 12-1209 – Concerning the Rates Charged to Consumers for Electricity, and, in Connection Therewith, Prohibiting the Imputation of Certain Costs Associated with Reductions in Greenhouse Gas Emissions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enacts the “Uniform Electronic Legal Material Act” drafted by the national conference of commissioners on uniform state laws. “Legal material” is defined to mean the constitution of this state, the session laws of Colorado, the Colorado Revised Statutes, and a state agency rule. If legal material is only published electronically, the official publisher is required to designate the record as official, but if it is published in another format, the publisher may make such designation. In either case, if electronic legal material is designated as official, the publisher is required to meet requirements related to the authentication and preservation of the electronic record and the availability of the preserved electronic record.

Electronic legal material in an electronic record that is authenticated by the official publisher is presumed to be an accurate copy of the legal material. This presumption applies to electronic legal material from states that have adopted a law that is substantially similar to the act. The bill requires the official comments issued by the commissioners to be published with the act. On February 23, the Judiciary Committee approved the bill and moved it to the Appropriations Committee for consideration of any fiscal impact on the state.

Summaries of other featured bills can be found here.

State Board of Human Services Amends Home Care Allowance and Adult Foster Care Rules

The Colorado State Board of Human Services has proposed rules to implement requirements of HB 10-1146, effective January 1, 2011, regarding Home Care Allowance and Adult Foster Care. These proposed rules focus on three elements:

  • Recipients of Supplemental Security Income to receive a full Home Care Allowance benefit;
  • Changes existing eligibility rules for dual recipients of Home Care Allowance, Adult Foster Care, and other long-term care programs; and
  • Changes in responsibilities of the county financial technicians in relation to the Home Care Allowance and Adult Foster Care programs.

The changes implemented in HB 10-1146 required changes to the Colorado Benefits Management System that could not be completed until January 2012.  Therefore, there has been a delay to implement for one year from the effective date of the bill.

Currently, any Home Care Allowance applicants or recipients can be eligible to receive both Home Care Allowance benefits and Home and Community Based waiver services.  Due to changes in statute, the rules will reflect that recipients will not be allowed to receive benefits from both the Home Care Allowance and Home and Community Based Services simultaneously.  This will require current recipients to choose a single benefit program.

As of January 1, 2011, eligibility will be expanded to include Supplemental Security Income (SSI) recipients who receive the maximum SSI benefit.  It is anticipated that many new persons will benefit from the rule changes, such as the developmentally disabled persons who are currently on waitlists for HCBS waiver services and who may be able to utilize Home Care Allowance in the interim.

A hearing on the proposed rules will be held on Friday, November 4, 2011 at the Colorado Department of Human Services, 1575 Sherman Street, Conference Room 4A/B, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed rules including red line edits can be found here. Further information about the rules and hearing can be found here.

State Board of Human Services Modifies Resource Limits for Food Assistance Program

The Colorado State Board of Human Services has amended the resource limits for the Food Assistance Program. This rule change is seen as necessary in order for the Colorado Food Assistance Program to respond to a recent memorandum, dated August 25, 2011, regarding an increase in the resource limits for the Program.

Based on the recent memorandum, the resource limit for households that contain at least one member who is elderly and/or is a person with a disability has increased from $3,000 to $3,250.  The only households that this rule change would apply to would be those households that are eligible for the Food Assistance Program under standard eligibility rules, as laid out in rule section B-4011.1, and who meet the criteria of having at least one member who is elderly and/or is a person with a disability.

Households that do not contain a member who is elderly and/or is a person with a disability and who are eligible under standard eligibility rules will continue to meet the $2,000 resource limit.  Effective March 2011, roughly 97% of all households eligible for the Food Assistance Program are not subject to an asset test due to the implementation of expanded categorical eligibility.

The rule change also seeks to modify the current language at section B-4224 to remove the specific dollar amounts for the resource limits because the resource limit will now be indexed to inflation; therefore, there is potential for the limit to change every October, which is the beginning of the Federal Fiscal Year. The annual adjustment in the resource limit, including the one in October 2011, is a national requirement that all states much adhere to.

A hearing on the amended rules will be held on Friday, November 4, 2011 at the Colorado Department of Human Services, 1575 Sherman Street, Conference Room 4A/B, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed rules including line edits can be found here. Further information about the rules and hearing can be found here.

DORA Amends Rules Regarding Midwives Registration

DORA has proposed to amend the rules regarding midwives registration. The basis and purpose of the proposed rules is to implement the provisions of SB 11-088 and to make conforming amendments to existing rules pertaining to the regulation of direct-entry midwives.

A hearing on the proposed rules will be held on Tuesday, October 25, 2011 at 1560 Broadway, Conference Room 110 D, Denver, Colorado 80202, beginning at 9:00 am.

Full text of the proposed rules including red line edits can be found here. Further information about the rules and hearing can be found here.

Division of Real Estate Proposes New Rule About Transferring Conservation Easements to Non-Certified Entities

The DORA Division of Real Estate has proposed a new rule for the conservation easement certification program. The purpose of this rule is to prevent a non-certified organization from holding a transferred conservation easement for which a tax credit is claimed. The rule applies to any nonprofit entity and any government entity that holds a conservation easement for which a tax credit is claimed.

A hearing on the proposed rule will be held on Monday, October 24, 2011 at 1560 Broadway, Suite 1250 C, Denver, Colorado 80202, beginning at 10:00 am.

Full text of the proposed rule can be found here. Further information about the rule and hearing can be found here.

SSI Medicaid Eligibility Rules for Children Under 21 Amended

The Colorado Department of Health Care Policy and Financing has amended the Medical Assistance Rules concerning Supplemental Security Income Medicaid eligibility effective dates for children under 21. The purpose of this rule change is to revise the eligibility requirements to incorporate changes in federal law governing the effective date of eligibility for individuals under 21 and to provide criteria for granting eligibility to infants who are found to be disabled shortly after birth.

The proposed language was approved for publication effective September 1, 2008. However, it was subsequently deleted through administrative error effective April 1, 2009. The proposed rule is being presented in order to reestablish the previously approved language.

A hearing on the proposed rules will be held on Friday, October 14, 2011 at The Capitol Center, 225 E. 16th Ave., 6th Floor, Denver, Colorado 80203, beginning at 9:00 am.

Full text of the proposed rules including line edits can be found here. Further information about the rules and hearing can be found here.

Division of Insurance Proposes New Rule Regarding Contraception Coverage

The DORA Division of Insurance has proposed a new rule to require contraception benefits in insurance policies. The purpose of this regulation is to implement Colorado insurance law and ensure that carriers are providing coverage for contraception in policies in the same manner as any other sickness, injury, disease, or condition is otherwise covered under the policy or contract.

The requirements and provisions of this new regulation apply to all group sickness and accident insurance policies and health service contracts issued to an employer and all individual sickness and accident, health care, or indemnity contracts; it does not apply to supplemental policies covering a specified disease or other limited benefits.

A hearing on the new rule will be held on Monday, October 3, 2011 at 1560 Broadway, Suite 850, Denver, Colorado 80202, beginning at 11:00 am.

Full text of the proposed rule can be found here. Further information about the rule and hearing can be found here.

Division of Real Estate Proposes New Rule Regarding Broker Competency

The DORA Division of Real Estate has proposed a new rule to regulate and enforce real estate broker competency. Real estate brokers are required to perform the terms of their real estate transaction agreements with clients, but they also must exercise reasonable skill and care and have a duty to promote the interests of their clients “with the utmost good faith, loyalty, and fidelity.” It is a violation of the real estate license law if a licensee demonstrates unworthiness or incompetency to act as a real estate broker by conducting business in such a manner as to endanger the interest of the public.

The purpose of this rule is to ensure that licensed real estate brokers do not agree to perform brokerage activities in a transaction where they lack the necessary training, experience, or education to fulfill the terms of the brokerage practice agreement, unless the licensed broker is assisted by another licensed real estate broker possessing the necessary competency.

The new rule, E-47 Competency, is also accompanied by an enforcement provision.

A hearing on the new rule will be held on Tuesday, October 4, 2011 at 1560 Broadway, Suite 1250-C, Denver, Colorado 80202, beginning at 9:00 am.

Full text of the proposed rule can be found here. Further information about the rule and hearing can be found here.

Public Utilities Commission Amends Rules to Allow Exemption from Tiered Electric Rate Plan

The Colorado Public Utilities Commission has amended their rules regarding electric utility rate plans. The changes are proposed pursuant to SB 11-087, which allows the Commission to adopt rules creating an exemption from tiered electric rate plans based on a customer’s medical condition or use of an essential life support device.

This rule requires electric utilities to file a tariff with a rate for persons who qualify for and request alternative rate(s) to tiered rates based on medical qualifications. The alternate rate based on medical exemption shall not be tiered. Should a customer qualify for the medical exemption rate, that customer will not be precluded from participating in any low-income program offered by the utility.

A hearing on the amended rule will be held on Friday, October 21, 2011 at the Colorado Public Utilities Commission, 1560 Broadway, Suite 250, Denver, Colorado 80202, beginning at 9:00 am.

Full text of the proposed changes and line edits to the rule can be found here. Further information about the rule and hearing can be found here.

State Board of Human Services Amends Anti-Discrimination Policy in Child Welfare Rules

The Colorado State Board of Human Services has amended the anti-discrimination policy within its Child Welfare rules. The proposed amendments are seen as necessary because the Federal Office of Civil Rights notified the Department of Human Services that their policy was inaccurate and needed to be updated in order to meet federal requirements.

The rules will align county anti-discrimination rules with Federal regulations by:

  • Correctly stating federal cites;
  • Adding “creed” and “method of payment” as areas that may not be a basis for discrimination;
  • Clarifying requirements to assist persons with limited English; and,
  • Adding the requirement for county departments to post signs that notify that auxiliary aids and services are available on request to persons with mental or physical disabilities.

A hearing on the amended rules will be held on Friday, October 7, 2011 at the Colorado Department of Human Services, Conference Room 4A/B, 1575 Sherman Street, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed changes and line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Department of Labor and Employment Proposes Changes to the Rules Regarding Unemployment Insurance

The Colorado Department of Labor and Employment has proposed amendments to the rules regarding the administration of the “Colorado Employment Security Act.” The revisions address the following issues:

  • Amending the rules related to unemployment insurance appeals for clarity.
  • Amending the rules related to good cause for clarity.
  • Adopting rules allowing the Unemployment Insurance Program to fine an employer who is found to have willfully disregarded the law when misclassifying an employee as an independent contractor.

A hearing on the amended rules will be held on Thursday, September 15, 2011 at 633 17th Street, Suite 1200, Room 12, Denver, Colorado 80202, beginning at 10:00 am.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.