August 25, 2019

HB 17-1028: Including Domestic Unsworn Declarations in “Uniform Unsworn Declarations Act”

On January 11, 2017, Rep. Yeulin Willett and Sen. Bob Gardner introduced HB 17-1028, “Concerning the ‘Uniform Unsworn Declarations Act’.”

Colorado Commission on Uniform State Laws.
Colorado has adopted the ‘Uniform Unsworn Foreign Declarations Act’, which allows the use of foreign unsworn declarations in a wide variety of situations. The bill expands the uniform law to include domestic unsworn declarations as contemplated by the ‘Uniform Unsworn Declarations Act’.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled to be heard in committee on January 24, 2017, at 1:30 p.m.

Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel in Germany, to Speak at Brown Palace

Herrmann_pic_02The Colorado Bar Association International Law Section and the Colorado Chapter of the German American Chamber of Commerce are hosting a luncheon with Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel of the Supreme Court of Germany. Dr. Herrmann will discuss the refugee crisis, Brexit, and political freedom of speech.

Dr. Herrmann was appointed presiding justice of the Federal Court of Justice (Bundesgerichtshof) and chairman of the 3rd Civil Panel on August 4, 2015. The Bundesgerichtshof is the German Federal Supreme Court for civil, family, and criminal cases. As chairman of the 3rd Civil Panel, his jurisdiction includes state liability, liability of notaries, service contracts, mandate law, law of private foundations and several other subjects. Dr. Herrmann was first appointed to the Justice of the Federal Court of Justice and to the 3rd Civil Panel in December 2003. He has additionally served as judicial tasks representative for the court on IT matters since March 2007.

Dr. Herrmann began his law career as an assistant at the Institute of Civil Procedure and Insolvency Law of the University of Bonn, writing his doctoral thesis on “The Principle Structure of a Pending Civil Law Suit” (Die Grundstruktur der Rechtshängigkeit). He was appointed as a judge at the Regional and the Local Court of Bonn in February1990. Over the following seven years, Dr. Herrmann served first as presidential and later as presiding judge of the Regional Court of Frankfurt (Oder) in the state of Brandenburg. Here he was also responsible for the personal matters of the judges of the district court.

In August 1998, Dr. Herrmann became judge of the Higher Regional Court of Brandenburg, where he continued to take responsibility for the personal matters of regional judges. In December 1999, he became chief of staff of the Brandenburg Ministry of Justice and in December 2002, he was appointed vice president of the agency for legal exams of the state of Brandenburg.

He originally hails from the city of Bonn in North Rhine Westphalia. He is married and has two children, aged 24 and 30 years old.

The program will take place on Friday, August 5, 2016, from noon to 1:30 at the Brown Palace. To register, call (303) 860-1115, ext. 727, or email lunches@cobar.org.

Tenth Circuit: Disclosure of Material Considered by Expert Containing Factual Ingredients Required

The Tenth Circuit Court of Appeals published its opinion in In re Application of Republic of Ecuador on Wednesday, November 13, 2013.

Intervenor-Appellant Chevron Corporation appealed from a district court order granting a motion to compel production of documents pursuant to subpoenas issued under 28 U.S.C. § 1782. Section 1782 allows for discovery of documents to be used in a foreign proceeding. Petitioners-Appellees, the Republic of Ecuador and its Attorney General (collectively, “the Republic”) sought the discovery to defend an $18.2 billion judgment against Chevron by an Ecuadorian court in Lago Agrio. Chevron sought relief from that judgment pursuant to investment treaty arbitration under United Nations’ rules.

Prior to the Lago Agrio judgment, in September 2009, Chevron commenced arbitration proceedings against the Republic under the U.S.–Ecuador Bilateral Investment Treaty. In February 2011, immediately following the Lago Agrio judgment, the arbitral tribunal ordered that the Republic stay all efforts to enforce the Lago Agrio judgment, pending further order of the tribunal.

In June 2011, the Republic filed a § 1782 application in the District of Colorado seeking “discovery from Bjorn Bjorkman to aid the Republic in defending the validity of the Lago Agrio judgment.” The Republic alleged that Mr. Bjorkman served as one of Chevron’s chief experts and that the Ecuadorian court explicitly relied on his opinions. In the instant action, Chevron argued before the magistrate judge that the 2010 revisions to Fed. R. Civ. P. 26 brought materials prepared by or provided to Mr. Bjorkman under the protection of the work-product doctrine. The magistrate judge rejected this argument and ordered the production of all of the facts and data the expert considered in forming his opinion. The Republic filed two motions to compel after Chevron continued to improperly withhold documents. The district court adopted the magistrate judge’s recommendations that only documents protected by Rules 26(b)(4)(B) and (C) were privileged.

On appeal, Chevron made several arguments that the 2010 revisions to Fed. R. Civ. P. 26 radically changed the discoverability of documents held by experts. The Tenth Circuit disagreed, holding that the underlying purpose of the 2010 revision was to return the work-product doctrine to its traditional understanding, that it protects only the inner workings of an attorney’s mind. The court affirmed.

Tenth Circuit: Return of Children in Hague Convention Case Affirmed

The Tenth Circuit Court of Appeals published its opinion in West v. Dobrev on Wednesday, October 30, 2013.

Petitioner Livia West and Respondent Stanislav Dobrev were married in the United States and their two children were born here. The family moved to France and after about a year, West filed for divorce. The French court ordered the children to remain in the usual home of West. Dobrev moved back to the United States. The French court gave West permission to move with the children to Belgium for employment and the divorce was finalized.

Two years later, Dobrev took the children to the United States for a vacation but then filed suit in Utah state court for “Emergency Jurisdiction and Custody.” West filed a petition in Utah federal district court for the return of the children under Article 3 of the Hague Convention.

The Utah federal district court, after holding a preliminary hearing, granted Petitioner West’s petition for return of her two minor children to their residence in Belgium, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, The International Child Abduction Remedies Act (ICARA). The district court also awarded Petitioner fees, costs, and expenses.

Respondent Dobrev appealed, claiming a denial of due process based on the district court’s refusal to provide him an evidentiary hearing to challenge its finding that Belgium was the habitual residence of the children under the convention. The Tenth Circuit found that Dobrev never contested whether Belgium was the children’s habitual residence.

The court held that Dobrev failed to meet his burden of establishing by clear and convincing evidence an exception to West’s prima facie case for return of the children under the Convention. Dobrev received a meaningful opportunity to be heard at the preliminary hearing; he was not entitled to a fishing expedition.

The court also found no abuse of discretion in the district court’s award of fees and costs and affirmed the district court in all respects.

Tenth Circuit: Courts Must Accept Executive Branch’s Determination of Foreign Heads of State’s Immunity

The Tenth Circuit Court of Appeals issued its opinion in Habyarimana v. Kagame on Wednesday, October 10, 2012.

The widows of the former presidents of Rwanda and Burundi allege current Rwandan President Paul Kagame is responsible for their husbands’ deaths. The former presidents were killed when the plane they were in was shot down. This incident sparked the Rwandan genocide in 1994. The widows filed suit in Oklahoma federal court seeking to hold Kagame liable under the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Act, 18 U.S.C. § 2340A, the Racketeeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962, and several other state and international laws. The executive branch of the United States filed a “Suggestion of Immunity” on behalf of President Kagame as a sitting foreign head of state. The district court dismissed the case based on this immunity. In affirming the district court, the Tenth Circuit held that a “determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff.” This is so even though the acts complained of occurred before Kagame was head of state.

Tenth Circuit: Restrictions on Imprisonment Upheld, Including Prohibitions on Arabic-Language Newspapers

The Tenth Circuit Court of Appeals published its opinion in Al-Owhali v. Holder, Jr. on Tuesday, August 7, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner was “convicted of several terrorism-related offenses stemming from the 1998 bombing of the United States embassy in Nairobi, Kenya. He is currently serving a life sentence without the possibility of parole at the United States Penitentiary, Administrative Maximum, in Florence, Colorado.” Since his arrest, Petitioner has been subject to Special Administrative Measures (“SAMs”), which impose special restrictions on his imprisonment. He brought a suit challenging several of the SAMs imposed upon him. The district court dismissed the suit, finding that Petitioner failed to allege plausible facts to support his claims. On appeal, he challenges “the prohibitions on communication with his nieces and nephews, two Arabic-language newspapers, and President Carter’s book.”

The Court found that dismissal was proper. Petitioner failed to “plead some plausible facts supporting his claim that the ban on communicating with his nieces and nephews did not serve the purpose of preventing future terrorist activity.” Also, he did not address “the government’s logical safety rationale for limiting his access to Arabic-language media—namely, the need to prevent [Petitioner] from acting upon contemporary information or receiving coded messages.” Lastly, “by stating his belief that [President Carter’s] book was banned while also admitting that he was not informed of the ban, [Petitioner] has merely highlighted the theoretical basis of his claim. . . . [Petitioner claims] without substantiation that he believes there is a secret policy in place that prevents him from obtaining the book. Such a claim, without more, is simply too speculative.”

Colorado Court of Appeals: Regulation Rendering Canadian Offenders Serving Life Sentences Ineligible for Transfer Conflicts with Treaty

The Colorado Court of Appeals issued its decision in Gandy v. Colorado Dep’t of Corrs. on June 21, 2012.

Life Sentence—Transfer of Offenders Treaty Between the United States and Canada on the Execution of Penal Sentences—Regulation 550-05(IV)(C)(7)—Supremacy Clause of the U.S. Constitution.

Plaintiff Robert Gandy, a Canadian citizen serving a life sentence, appealed the district court’s dismissal of his suit against the Colorado Department of Corrections (DOC). The order was vacated and the case was remanded.

Gandy applied to the DOC, pursuant to the Transfer of Offenders Treaty Between the United States and Canada on the Execution of Penal Sentences (Treaty), to be transferred to the Canadian penal system to serve the remainder of his sentence. The DOC denied the application on the basis that Gandy was serving a life sentence, which, it asserted, rendered him ineligible for transfer under Regulation 550-05(IV)(C)(7) (Regulation). Gandy sued, alleging, among other things, that the basis of the DOC’s denial was contrary to a federal treaty. Gandy’s suit was dismissed.

On appeal, Gandy argued that the trial court erred in dismissing his suit because the Regulation conflicts with the Treaty and thereby violates the Supremacy Clause of the U.S. Constitution. Under the Treaty, offenders serving life sentences are eligible for transfer. Thus, applying the Regulation to render Canadian offenders serving life sentences ineligible for transfer conflicts with the Treaty and is an obstacle to the accomplishment and execution of its full purposes. Therefore, the DOC impermissibly applied its administrative regulation in contravention of the applicable federal treaty. Accordingly, Gandy stated a claim for which relief can be granted, and the district court erred when it ruled otherwise and dismissed Gandy’s claim on that basis.

Summary and full case available here.

Tenth Circuit: District Court Lacked Jurisdiction to Consider whether Confinement Violated Extradition Treaty

The Tenth Circuit Court of Appeals published its opinion in Palma-Salazar v. Davis on Tuesday, May 1, 2012.

The Tenth Circuit affirmed in part and vacated in part the district court’s decision. Petitioner “was indicted in 1995 for conspiracy to distribute cocaine; he was arrested in Mexico in 2002. After he was extradited to the United States pursuant to an extradition treaty between the United States and Mexico, [Petitioner] pleaded guilty and began serving his sentence. In 2010, [he] filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus, challenging his confinement at the Administrative Maximum Prison in Florence, Colorado (ADX). He alleged his confinement at ADX violates his Fifth and Eighth Amendment rights and also the extradition treaty. The district court denied [the] petition. It concluded it lacked jurisdiction under 28 U.S.C. § 2241 to consider his Fifth and Eighth Amendment claims because they are challenges to the conditions of his confinement and must, therefore, be brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).” However,  it did conclude that Petitioner’s confinement at ADX does not violate the extradition treaty.

The Tenth Circuit held that the district court lacked jurisdiction under 28 U.S.C. § 2241 to consider any of Petitioner’s claims, including whether his confinement violated the treaty. “Because he seeks a change in the place of his confinement, which is properly construed as a challenge to the conditions of his confinement, [Petitioner]’s claims must be brought pursuant to Bivens.”

Colorado Supreme Court: C.R.C.P. 4(d) Does Not Establish Service According to International Agreement as Exclusive Means of Serving Defendant Located in Foreign Country

The Colorado Supreme Court issued its opinion in In re Willhite v. Rodriguez-Cera on April 23, 2012.

Civil Procedure—Service of Process—Hague Service Convention.

The trial court issued an order quashing substituted service in Colorado on the sister of a defendant residing in Mexico. After previously granting substituted service under C.R.C.P. 4(f), the trial court determined that C.R.C.P. 4(d) requires that service on a defendant located in a foreign country be made according to international agreement. Because Mexico and the United States are parties to the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, the trial court concluded that plaintiff must serve defendant Rodriguez-Cera via the Hague Service Convention.

The Supreme Court held that C.R.C.P. 4(d) does not establish service according to international agreement as the exclusive means of serving a defendant located in a foreign country. The Court further held that C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and does not prohibit a plaintiff from serving a defendant within the United States if otherwise authorized. The Court held that substituted service in accordance with C.R.C.P. 4(f) provides a valid alternative to service abroad. Although the Hague Service Convention is implicated whenever state law requires the transmittal of documents abroad to effectuate service, the Court concluded that the transmittal of documents abroad is not necessary to effectuate service under C.R.C.P. 4(f); therefore, the Hague Service Convention was not implicated.

Summary and full case available here.

Colorado Bar Association Sending Lawyer Delegation to Cuba in October 2012

The Colorado Bar Association is announcing the opportunity to join a delegation of attorneys to visit Cuba for the purpose of researching the country’s legal system.  As President of the Colorado Bar Association, I am honored to have been selected to lead this delegation and invite you to join me in this unique opportunity.

Our delegation will undertake a comprehensive study of the Cuban legal system, from the teaching of law, to the criminal justice and judicial systems; civil and family code; business and commercial rights; and resolving domestic and international commercial conflicts.

Travel to Cuba is restricted by the Office of Foreign Assets Control (OFAC) of the United States Treasury Department.  This delegation will be travelling under OFAC regulation 31 CFR §515.564 General license for professional research.  This license supports our access to the highest level professionals in Cuba.

Each member of the delegation must be in compliance with the General License issued by OFAC authorizing full-time professionals to conduct a full-time schedule of research activities in Cuba with the likelihood that this research will be publicly disseminated. To ensure compliance, each participant in the program will be required to provide a resume and sign an affidavit attesting to his or her status as a full-time professional, paid or unpaid, in the field of research.

Travel arrangements will be made through our cooperation with Professionals Abroad, a division of Academic Travel Abroad.  The 60-year-old organization handles the logistical arrangements for prestigious organizations, such as National Geographic, The Smithsonian, The American Museum of Natural History and many top professional associations and universities. Academic Travel Abroad is licensed by the OFAC as a Travel Services Provider for US travel to Cuba, and has also arranged travel for members of the Minnesota, Illinois, New Mexico, and Washington bars.

This delegation will convene in Miami, Florida on October 7, 2012 at which time we will depart for Cuba.  We will return to the United States on October 12, 2012.  Delegates will participate in professional meetings and site visits each day; the specific meetings and topics for discussion will be determined by the research interests and composition of the team.

The estimated cost per delegation member is $4,595 U.S.D. This cost includes roundtrip international air arrangements between Miami and Havana; group transportation, meetings, accommodations in double-occupancy rooms, most meals, and essentially all other costs associated with participation, as outlined in the final schedule of activities.

For U.S. citizens, expenses associated with this program may be tax deductible as an ordinary and necessary business expense.  We suggest that you consult with a tax advisor to determine if tax deductibility is applicable to you.

Due to the extensive planning and communication involved in coordinating a program of this nature, please respond with your intentions regarding this invitation as soon as possible. Please RSVP to Professionals Abroad at 1-877-298-9677 or via the web at www.professionalsabroad.org and search for the CBA program by name: Colorado Bar Association.   A $500 deposit is required to secure your place on the team. I look forward to hearing from you regarding your participation.

If you have questions regarding the delegation, contact our Program Representative at Professionals Abroad, at 1-877-298-9677. For additional program details, please visit www.professionalsabroad.org.

I am pleased to be involved in this exciting opportunity and hope that you will strongly consider participating in the delegation to Cuba.

DU to Host Emerging Issues in International Law in the Americas

The Denver Journal of International Law and Policy (DJILP) at the University of Denver Sturm College of Law offers a leading voice in the discussion of cutting edge issues in international law.  On Saturday April 14th, in conjunction with a celebration of its 40th anniversary, the DJILP will host an all-day symposium covering Emerging Issues in International Law with a Special Focus on the Americas.  Prominent scholars, practitioners and dignitaries – including the current Attorney General of Peru and former United Nations Assistant Secretary General for Legal Affairs – will share their insights regarding topics such as prosecution of international war criminals, international corporate social responsibility, and other topics critical to the current state of international law.

The symposium will begin with a focus on the Prosecution of Mass Atrocities in the Americas.  This discussion will feature Dr. Jose Antonio Peláez Bardales, current Attorney General of Peru, who served as lead prosecutor in the ground-breaking prosecution of former Peruvian President Alberto Fujimori. Fujimori was tried for corruption and human rights abuses that occurred during his presidency.  His conviction is the first conviction by a domestic court of a democratically elected president for crimes against humanity.  According to Human Rights Watch the trial would “go down in history as a model of what we want to see in terms of rule of law and justice … in Latin America.” Mr. Peláez Bardales will share his observations about the Fujimori trial and its legacy.

Ms. Katie Doyle, Senior Analyst with the National Security Archive, will discuss her observations of the current landmark Guatemalan prosecutions of mass atrocities – including last year’s important Dos Erres Massacres convictions – and the lessons learned about witnesses and evidence in historical prosecutions.  The National Security Archive was founded to declassify government documents.  Since 1992, Doyle has worked with Latin American human rights organizations and truth commissions – in Mexico, Guatemala, El Salvador and Honduras – to obtain the declassification of U.S. government archives in support of their investigations.

The morning session also features Mr. Robert Petit, Counsel with the War Crimes Section of Canada’s Federal Department of Justice and Former Co-Prosecutor of the Khmer Rouge prosecutions in the Extraordinary Chambers of the Courts of Cambodia.  A lunch session will highlight the work of Professor Larry Johnson, Adjunct Professor at Columbia Law School, who share his extensive experience with the United Nations as former United Nations Assistant Secretary General for Legal Affairs, and former legal adviser to the International Atomic Energy Agency.

The afternoon discussion will focus on “hot topics” in international law that have been published in DJILP’s 40th Anniversary book, Perspectives on International Law in an Era of Change.  Three eminent scholars and authors featured in the book will discuss cutting edge issues applicable to international law today.  Professor David Aronofsky from the University of Montana School of Law will address the “War on Terror: Where We Have Been, Are, and Should Be Going.”  As described in his written piece, “the greatest casualty of [the war on terror] is a loss of the core rule of law focus which differentiated the U.S. from so many other countries on the global stage decades before this war began.”  Among other topics, he will discuss how the war on terror has recently shaped the rule of law in the U.S.

Professor Jennifer Moore from the University of New Mexico School of Law will speak on the topic of humanitarian law and transitional justice in Africa within the context of the doctrine of the Responsibility to Protect, as outlined by the United Nations Millennium Goals.  She describes her written piece as a “peaceful call to arms” based on a belief that ending human rights abuses will entail a non-military understanding of humanitarian intervention and the use of force.

Dr. Daniel Warner, Assistant Director for International Affairs at the Geneva Centre for the Democratic Control of Armed Forces, will address “Establishing Norms for Private Military and Security Companies.”  As described in his written piece, “the subject of the intersection [of public and private military], and of private military and security companies, is of the highest importance as violence is no longer limited to interstate conflicts.”  Dr. Warner will expound on the connections between these sectors as a means of correcting abuses of the law.  This panel discussion will be led by Professor Ved P. Nanda.

The symposium will also cover Emerging Issues in Corporate Social Responsibility, including conversations regarding Corporate Social Responsibility, Sustainability and Human Rights.  Distinguished panelists include: Mr. Bart Alexander, Chief Corporate Responsibility Officer, MolsonCoors; Professor John Cerone, Director, Center of International Law and Policy, New England School of Law; Ms. Luella D’Angelo, CEO, Western Union Foundation (invited); Mr. Stephen Gottesfeld, General Counsel, Newmont Mining Company; Mr. Mark Wielga, Nomogaia Human Rights; Professor Edward H. Ziegler, University of Denver Sturm College of Law.

The Emerging Issues Symposium is part of a larger celebration of the 40th Anniversary of the Denver Journal of International Law and Policy.  The celebration weekend includes events for students, staff, alumni, scholars and community members.  The kickoff event for the weekend is an inaugural dinner lecture beginning at 5:00 pm on Friday, April 13.  The dinner will honor Sturm College of Law alumna and international environmental law expert, Sheila Slocum Hollis, JD’73, of Duane Morris, LLP. This inaugural dinner is followed by the symposium and concludes with a champagne reception honoring Professor Ved P. Nanda, founder of both the DJILP and the International Legal Studies Program, and official book launch of the 40th Anniversary Book published in Professor Nanda’s honor.

For more information and to register for the Symposium or Alumni Dinner, please click here.   Additional questions can be directed to Karlyn Shorb at kshorb@law.du.edu or (303) 871-6655.

HB 12-1151: Changes to Laws Regarding Human Trafficking

On January 20, 2012, Rep. Beth McCann and Sen. Steve King introduced HB 12-1151 – Concerning the Trafficking of Human Beings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the interagency task force on trafficking in persons. A person is entitled to recover damages and to obtain injunctive relief from any person who commits trafficking in adults, trafficking in children, or coercion of involuntary servitude (a human trafficking crime). A conviction for a human trafficking crime is not a condition precedent to maintaining a civil action.

A building or part of a building, including the ground upon which it is situated and all fixtures and contents thereof, every vehicle, and any real property that is used for a human trafficking crime shall be deemed a class 1 public nuisance and thereby subject to seizure, confiscation, and forfeiture.

Each escort bureau shall provide to each employee of the escort bureau a written notice that includes a statement that human trafficking and coercion of involuntary servitude are prohibited and the name, telephone number, and internet web site address of a local, statewide, or national organization that provides assistance to victims of human trafficking and slavery.

Current law requires each massage parlor to display at all times in a prominent place on the licensed premises a printed card stating that it is illegal for any person under 18 years of age to be on the premises, or for any person to allow any person under 18 years of age to be on the premises, unless he or she is accompanied by his or her parent or has a physician’s prescription for massage services. The bill requires the card to also state that human trafficking crimes are prohibited and that courts may impose fines or imprisonment for violations of human trafficking crimes. The bill also requires each massage parlor to display a card that provides the name and contact information of a state or local organization that provides services or other assistance to victims of human trafficking.

A court shall order expunged all juvenile delinquency records in the custody of the court and any records in the custody of any other agency or official that pertain to a petitioner’s conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, soliciting for child prostitution, or any corresponding municipal code or ordinance if, at the hearing, the court finds that the petitioner has established by a preponderance of the evidence that, at the time he or she committed the offense, he or she had been sold, exchanged, bartered, or leased by another person for the purpose of performing the offense; or that he or she was coerced by another person to perform the offense. A person is eligible to petition for such an expungement order at any time.

A defendant may petition the district court of the district in which any conviction records pertaining to the defendant’s conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, or any corresponding municipal code or ordinance are located for the sealing of the conviction records, except for basic identifying information. If such a petition is filed, the court shall order the record sealed after the petition is filed, the filing fee is paid, and the defendant establishes by a preponderance of the evidence that, at the time he or she committed the offense, he or she had been sold, exchanged, bartered, or leased by another person for the purpose of performing the offense; or that he or she was coerced by another person to perform the offense.

An order entered to seal such conviction records shall be directed to each custodian who may have custody of any part of the conviction records that are the subject of the order. Whenever a court enters an order sealing such conviction records, the defendant shall provide the Colorado bureau of investigation (bureau) and each custodian of the conviction records with a copy of the order and shall pay to the bureau any costs related to the sealing of his or her criminal conviction records that are in the custody of the bureau. Thereafter, the defendant may request and the court may grant an order sealing the civil case in which the conviction records were sealed. An order sealing such conviction records shall not deny access to the criminal records of a defendant by any court, law enforcement agency, criminal justice agency, prosecuting attorney, or party or agency required by law to conduct a criminal history record check on an individual. An order sealing such conviction records does not vacate a conviction. A conviction sealed may be used by a criminal justice agency, law enforcement agency, court, or prosecuting attorney for any lawful purpose relating to the investigation or prosecution of any case, including but not limited to any subsequent case that is filed against the defendant, or for any other lawful purpose within the scope of his, her, or its duties. If a defendant is convicted of a new criminal offense after an order sealing such conviction records is entered, the court shall order the conviction records to be unsealed. A party or agency required by law to conduct a criminal history record check is authorized to use any sealed conviction for the lawful purpose for which the criminal history record check is required by law.

A petition to seal such conviction records shall include a listing of each custodian of the records to whom the sealing order is directed and any information that accurately and completely identifies the records to be sealed. Upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant. Inspection of the records included in an order sealing conviction records may thereafter be permitted by the court only upon petition by the defendant. Employers, state and local government agencies, officials, landlords, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed conviction records. An applicant need not, in answer to any question concerning conviction records that have been sealed, include a reference to or information concerning the sealed conviction records and may state that the applicant has not been criminally convicted.

The bar committee of the Colorado state board of law examiners (bar committee) is not precluded from making further inquiries into the fact of a sealed conviction that comes to the attention of the bar committee through other means. The bar committee has a right to inquire into the moral and ethical qualifications of an applicant, and the applicant does not have a right to privacy or privilege that justifies his or her refusal to answer a question concerning sealed conviction records that have come to the attention of the bar committee through other means.

The Department of Education may require a licensed educator or an applicant for an educator’s license who files a petition to seal a criminal record to notify the department of the pending petition to seal. The department has the right to inquire into the facts of the criminal offense for which the petition to seal is pending. The educator or applicant has no right to privacy or privilege that justifies his or her refusal to answer any questions concerning the arrest and criminal records information contained in the pending petition to seal.

Any member of the public may petition the court to unseal any file that has been previously sealed upon a showing that circumstances have come into existence since the original sealing, and, as a result, the public interest in disclosure now outweighs the defendant’s interest in privacy. The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least 30 days after the posting. After the expiration of 30 days following the posting, the petition to seal conviction records and information pertinent thereto shall be removed from the web site of the office of the state court administrator.

In regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, or any corresponding municipal code or ordinance may be sealed only if the records of every conviction of the defendant resulting from that case may also be sealed.

Court orders sealing records do not limit the operations of the Colorado rules of civil procedure related to discovery, the Colorado rules of evidence, certain statutory provisions concerning witness testimony, or any state or federal court.

A person less than eighteen years of age who has been trafficked or coerced into involuntary servitude by an offender is eligible to receive restitution from the offender as part of the offender’s sentence for such an offense.

The amended bill has passed the House and is assigned to the Judiciary Committee in the Senate.

Summaries of other featured bills can be found here.