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Month: May 2017
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First Regular Session of the 71st General Assembly Out *Gavel Drop*
by Julie Pelegrin
Last night—May 10, 2017—at 9:29 p.m. in the Senate and 9:39 p.m. in the House, Senate President Kevin Grantham and Speaker of the House Crisanta Duran, respectively, dropped the gavel on the first regular session of the 71st General Assembly. With this legislative session, the General Assembly negotiated resolutions to several long-standing issues, including how to address construction defects, the status of the hospital provider fee, and whether school districts must distribute a portion of their local tax dollars to the charter schools of the district.During the 120 days since opening day in January, the House introduced 375 bills and the Senate introduced 306. Both houses also introduced a total of three concurrent resolutions (to amend the constitution), nine joint memorials (to memorialize previous legislators who recently passed away or ask Congress to consider a particular issue), and 80 joint resolutions (to address or comment on a variety of issues).
Overall this year, the General Assembly passed 423 bills—a passage rate of about 62%. The Governor has already signed 206 of those bills and vetoed one: S.B.17-139, concerning the extension of the credit for tobacco products that a distributor ships or transports to an out-of-state consumer. He has until June 9th to act on the remaining 216 bills or, at 12:01 a.m. on June 10th, they will become law without his signature.
Although it took longer than usual, the General Assembly passed the bills it is required to pass each year: The general appropriations, or “long,” bill (S.B.17-254) and the school finance bill (S.B.17-296). The long bill was finally passed on May 3. It authorizes spending $28.7 billion (state general fund, cash funds, and federal funds) for the expenses of the executive and judicial branches of the state. The school finance bill, which sets the amount of statewide base per pupil spending each year and the amount of the negative factor (to be known going forward as the “budget stabilization factor”), finally passed on May 10, the last day of the session. For the 2017-18 school year, on average, schools will receive $7,662 per student in state and local money, an increase of $242 over the 2016-17 school year. The Governor has not yet signed this year’s long bill or school finance bill.
Despite the fact that the houses were controlled by different parties, the General Assembly managed to negotiate to common ground on many issues this year:
- Putting some limits on construction defects lawsuits (H.B.17-1279);
- Establishing the hospital provider fee as an enterprise (S.B.17-267), one benefit of which is helping rural hospitals to continue operating;
- Reducing the constitutional cap on state spending by $200 million (S.B.17-267);
- Increasing the sales tax rate on recreational marijuana to 15%, and using $30 million of the revenue for rural school districts in 2017-18 and all school districts and institute charter schools starting in 2018-19 (S.B.17-267); and
- Requiring school districts to equitably distribute the local property tax money they collect to benefit the students enrolled in all of the schools of the school district, including charter schools and innovation schools authorized by the district, and requiring each school district and charter school to post on its website a list of the statutes for which it has received a waiver and the plan for meeting the intent of the waived statute. (H.B.17-1375).
That’s not to say that all issues were resolved. Despite best efforts in the last hours of the session, the houses were not able to agree on what limits to impose on the social use of marijuana, they could not agree on several changes to the duties of the Colorado Energy Office, and they did not agree on significant increases in transportation funding. Any or all of these issues are likely to make a return appearance in the 2018 regular legislative session….if not before in a special legislative session.
They did pass the joint resolution that sets the start date for the 2018 legislative session: January 10, 2018. Mark your calendars!
Between now and then, several interim study committees will meet, including committees to study school finance, opioid addiction, supporting young and beginning farmers, comprehensive sentencing reform, and county courthouse and jail funding and overcrowding solutions.
* A gavel drop is similar to a mic drop, but it carries much more authority.
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U.S. Supreme Court Orders Colorado to Repay Criminal Fines
by Jeremiah Barry
The United States Supreme Court recently issued an opinion in the case of Nelson v. Colorado, holding that Colorado’s statute for awarding compensation to certain exonerated persons is unconstitutional because it violates due process under the Fourteenth Amendment to the U.S. Constitution. But in reviewing the case carefully, it appears that, while the statute is unconstitutional with regard to the procedure for refunding costs, fees, and restitution paid by defendants whose convictions are later vacated or reversed, the statute is arguably constitutional with regard to providing compensation to these persons for the time during which they were incarcerated.
In 2013, the General Assembly passed House Bill 13-1230, which created the statutes that the courts refer to as the Exoneration Act. Basically, the act says that, if a person is convicted of a crime and serves part of his or her prison sentence, and the person’s conviction is later overturned or vacated and the person is released, the person may be eligible for compensation from the state—$70,000 per year or more—for the number of years he or she was in prison and more for time spent on parole. But to get the compensation, the person must file a new civil action against the state claiming that he or she is entitled to compensation and prove by clear and convincing evidence that he or she was actually innocent of the crime. The act specifically says that “compensation” includes a refund of any costs, fees, or restitution paid.
Shannon Nelson was originally convicted of five counts of sexual assault, sentenced to the department of corrections, and ordered to pay $8,192.50 in restitution and costs. While incarcerated, she had $702.10 withheld from her inmate account as payment toward these restitution and costs. However, her conviction was subsequently reversed on appeal, and, on retrial, she was acquitted of all charges. Nelson moved the trial court for a refund of the money that was withheld while she was incarcerated. The trial court held that it had no authority to order a refund and denied the motion. Nelson did not bring a separate civil action for compensation under the Exoneration Act.
After Nelson appealed the trial court’s ruling, the Colorado Court of Appeals found that, because the payments were not related to a valid conviction, the state did not have the authority to collect Nelson’s money and ordered the state to issue a refund. The state appealed that ruling.
The Colorado Supreme Court granted certiorari and held that, without statutory authorization, a trial court lacks the authority to order the state to refund money collected from a defendant who is later acquitted. The Court ruled that the only way a defendant can receive a refund of costs, fees, and restitution is to file a civil suit for compensation under the Exoneration Act. Since Nelson did not do that, the Court denied her claim for a refund of costs, fees, and restitution.
Nelson appealed the Colorado Supreme Court’s ruling to the U.S. Supreme Court. On April 19, 2017, the Court found that the act does not meet the requirements of due process under the Fourteenth Amendment with regard to a refund of costs, fees, and restitution. The Court held that, once Nelson’s conviction was reversed on appeal, and especially after she was acquitted, she was presumed innocent. Colorado cannot require her prove her innocence in order to receive a refund of costs, fees, and restitution paid. Requiring her to prove her innocence by clear and convincing evidence creates an unacceptable risk of erroneous deprivation of property. The Court remanded the case, and Colorado must repay the amount of costs, fees, and restitution that Nelson paid.
While this case was pending before the U.S. Supreme Court, the General Assembly enacted House Bill 17-1071, which establishes a new procedure for a defendant whose conviction is overturned to petition for a refund of any costs, fees, and restitution that he or she paid. Under this new process, the defendant is not required to prove innocence.
The U.S. Supreme Court’s decision in Nelson v. Colorado does not mean that the entire Exoneration Act passed in 2013 is unconstitutional; the Court ruled on the constitutionality of the statute only with regard to a refund of costs, fees, and restitution. It did not consider whether Colorado can constitutionally require a person to prove his or her innocence in order to receive compensation for time spent in prison. The difference lies in the word “property.”
When a person pays costs, fees, and restitution, the person is obviously giving his or her property—money—to the state. To get that property back, the Supreme Court has said the person should not have to prove innocence because once the conviction is overturned, the person is presumed to be innocent.
But the state is not constitutionally required to compensate a person who is wrongfully convicted for the time that the person spends in prison; compensation is not a person’s property that the state cannot take away without due process. A person’s conviction may be vacated or overturned for a number of reasons, not just because the person was actually innocent. So, if the state makes a policy decision to compensate persons who are wrongfully committed, it can, presumably, require the person to prove his or her innocence in order to receive the compensation.
With the passage of H.B.17-1071 to recover a refund of costs, fees, and restitution, it appears the Exoneration Act remains constitutional.
