Just before Nathan Dunlap is put to death, now set for the week of August 18, 2013, the Warden will disconnect the telephone in the execution room and the witness-viewing window curtain will be opened. Department of Corrections (DOC) Regulation 300-14 sets forth the procedures for carrying out a death sentence by lethal injection, but it was not promulgated pursuant to CRS 24-4-101 to 108 – the Administrative Procedures Act (APA). Dunlap sought an order invalidating the Regulation for failure to follow the APA. The Regulation was exempted from the APA, and thus valid, because CRS 17-1-103 and 111, granting the DOC with authority to manage, supervise and control inmates, and to administer sentences imposed by the courts, exempts the DOC from the APA. A partially dissenting judge would have ordered full disclosure of the Regulation to allow courts to make a more informed decision.
Tag Archives: Regulation
Nathan J. Dunlap v. Colorado Department of Corrections and Roger Werholtz as Interim Executive Director, 2013COA63 (April 25, 2013)
Jason L. Rodgers and James R. Hazel v. Board of County Commissioners of Summit County, 2013COA61 (April 25, 2013)
“Plaintiffs … a same-sex couple, primarily contend the County treated them differently from heterosexual couples when interpreting and enforcing [septic] regulations.” (Opinion). Plaintiffs sued. The trial court dismissed some claims and granted a partial directed verdict by removing certain “actions” from a single claim under 42 USC 1983 (1983). The court of appeals reversed in part, holding that under CRCP 50, a trial court can’t parse evidence supporting a single claim against a single defendant. But it affirmed the trial court’s dismissal of 1) an inverse condemnation claim (taking property through regulation) because the regulations did not rise to the level of a taking, 2) a discrimination claim not brought to the Civil Rights Commission as required, and 3) a direct constitutional challenge because 1983, CRCP 106, and CRS 24-10-118 provide alternate remedies.
Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)
Pop quiz: are medical records “confidential,” “privileged,” or both? Answer: yes. Here, Defendant, a state agency, required licensed drug and alcohol treatment programs to submit forms with confidential patient information. In the trial court, Plaintiff claimed the forms violated state and federal statutes. The court of appeals first held the doctor-patient “privilege” under CRS 13-90-107 only protects testimonial witnesses. Federal law protects the “confidentiality” of medical records (42 U.S.C. § 290dd-2; 42 C.F.R. §§ 2.1, 2.2), except for entities with “direct administrative control” over a program. The court held the agency lacked that control, but the forms could be required for an audit or evaluation if there were a data retention and destruction policy. Here, there was no evidence of a data policy; until there was, Plaintiff was not required to submit the forms.
Jamie Webb, Jeffrey Hermanson, and Michaleen Jeronimus v. City of Black Hawk, 2013CO9 (February 4, 2013)
The history of gold, bicycles and casinos meet at the confluence of Gregory Gulch and the North Fork of Clear Creek. Black Hawk banned bicycles blocking riders from passing through. If a Home Rule ordinance is not strictly a matter of local concern, and conflicts with state law, it is unconstitutional. Here, the Court held the matter was a mix of state and local concern because the ban had an extraterritorial “ripple effect” on non-residents, such as blocking access to Central City. The ban failed the conflict test because bicycling is a protected mode of transportation within Colorado, and state law limits bans unless an alternative route within 450 feet of the banned route is provided for bicyclists. There was no alternative route as required by CRS 42-4-109. Although CRS 42-4-111 permits local regulation of bicycles, Black Hawk’s ban was struck down for conflicting with state law.
Regents of the University of Colorado v. Students for Concealed Carry on Campus, 2012CO17 (March 5, 2012)
“Guns in schools” means different things to different people. But to the Court, when the Legislature says it, it means that concealed weapons are allowed on public university campuses. The Court’s decision does not say anything about Colorado’s or the US Constitution’s provisions regarding the right to bear arms. Rather, concealed weapons may be carried in public places pursuant to a statute. The statute says a concealed weapon may be carried “in all areas of the state, except as specifically limited [within the statute].” A unanimous Court simply held that “all areas” means all areas, and since public universities (as opposed to K-12 public schools) were not expressly excluded, CU campuses were included. The CU Board of Regent’s authority to regulate CU campuses with respect to concealed weapons was expressly divested, so the regulation could not trump the statute.