Category Archives: Colorado Law

Banning Homelessness in Colorado

It appears a sad new trend in Colorado is to create policies or laws, treating homelessness as a criminal condition.

A new report, “No Right to Rest: Criminalizing Homelessness in Colorado” which details the efforts cities and municipalities have gone to in an apparent attempt to discourage homeless people from coming to the area.  “No Right to Rest” (the full report can be seen below) is a collaboration between Tony Robinson, PHD and Allison Sickels of the University of Colorado at Denver and the local advocacy group Denver Homeless Out Loud.

The timing of the report coincides with the recent development the City of Denver uses potentially unconstitutional area bans against people it deems as nuisances.1 Joe Thomas, Denver Attempts to Ban People Deemed Nuisances, available at: http://cocommonlaw.com/2015/04/denver-attempts-ban-people-deemed-nuisances/.

Denver City and County Building -- Photo Taken by CoCommonLaw
Denver City and County Building — Photo Taken by CoCommonLaw

Continue reading Banning Homelessness in Colorado

References   [ + ]

1. Joe Thomas, Denver Attempts to Ban People Deemed Nuisances, available at: http://cocommonlaw.com/2015/04/denver-attempts-ban-people-deemed-nuisances/.

How to Research Early Colorado Case Law

Here is a tip for how to research early Colorado case law.  All that is needed is: 1. internet access; and 2. a Google account.  While it is not necessary, The Bluebook – A Uniform System of Citation can be very helpful in determining which print reporters to search.

Since I have graduated law school, there have been a few times where I have read cases and there are citations to cases from the 19th and even 18th centuries.  My problem is I was not able to access these cases to read because I could not find them anywhere.  I do not use Lexis or Westlaw (and even when I did, those databases sometimes had omissions for early case law).  A simple search into the major search engines did not return the text of the decision either.  State supreme court cases are generally only available on the internet (sites without a paywall) from the 1950s and on.

When presented with this situation I turned my search to Google Books.  Google works with several of the largest libraries in the world (including many of the top law libraries) to digitize books that are in the public domain.  My idea was to search through case law reporters that are now in the public domain and digitized by Google.  Because with any luck, I would be able to find the case published in the reporter.

I will walk through this tutorial with the example case Salomon v. Webster, 4 Colo. 353 (1878).   This court case is heard by the Colorado Supreme Court only two years after Colorado is granted statehood to the union.  This is going pretty far back.

19th Century Colorado Case Law
Citation to 19th Century Colorado Case Law

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Public Records Requests as Contracts

Record request — boom contract!

Okay, it is not that easy, but in all seriousness I think  Colorado’s public record laws should generally be treated as a contractual agreement for public policy reasons.

I have alluded to several times in previous blog posts on here, I believe individuals are able to use contractually based arguments effectively in the pursuit of public records.  To take this argument a step further, many provisions in Colorado’s public records laws would suggest that a request is the start of a contractual situation.

Contracts

Photo Credit: NobMouse Flickr.

For the sake of this article I am going to use one of the more straightforward definitions, that I think will serve the purposes of this article as being as accessible as possible to all.  “A very common definition is that a contract is a promise enforceable at law directly or indirectly.”1 Arthur Linton Corbin, Corbin on Contracts, One Volume Edition, at 2; See Restatement (Second) Contracts  § 1 (1981).

Continue reading Public Records Requests as Contracts

References   [ + ]

1. Arthur Linton Corbin, Corbin on Contracts, One Volume Edition, at 2; See Restatement (Second) Contracts  § 1 (1981).

Colorado Public Records Denials

Records custodians can and do at times refuse public records requests.  But when does a denial occur?

This relatively simple and straight-forward question is actually complex and at times open to interpretation.  Neither the the Colorado Open Records Act (“CORA”), nor the Colorado Criminal Justice Records Act (“CCJRA”) defines what a denial is.1 See Colo. Rev. Stat. § 27-72-202 CORA; Colo. Rev. Stat. § 27-72-302 CCJRA. However, as both statutes permit custodians to “deny the right of inspection,” of records,2 Colo. Rev. Stat. § 27-72-204(2) CORA; Colo. Rev. Stat. § 27-72-305(5) CCJRA. even though it is not defined in the statute.  It is also important to note it does not appear the courts have weighed in on the matter in either denial of CORA or CCJRA records.

Denial pack

— Photo credit: Flickr Andres Musta

In this article I want to focus on when a denial of public records occurs.

Continue reading Colorado Public Records Denials

References   [ + ]

1. See Colo. Rev. Stat. § 27-72-202 CORA; Colo. Rev. Stat. § 27-72-302 CCJRA.
2. Colo. Rev. Stat. § 27-72-204(2) CORA; Colo. Rev. Stat. § 27-72-305(5) CCJRA.

Colorado Revised Statutes Still Open and Notorious in 2014

The Colorado Revised Statutes are once again open and notorious.  Updated for the year 2014, the Colorado General Assembly posted the new statutes on its internal, super secret website (this is the website I had to use an Open Records request and a little back and forth to find out about).

CoCommonLaw also has updated its links to the new 2014 laws.  Individuals are still able to use CoCommonLaw to download, read, and learn Colorado law.  Nothing has changed here, except for the updated links.   This post is to inform readers of CoCommonLaw to the updated laws, and again to the question why the Colorado General Assembly does not make their internal version of the statutes public.  Use the menu at the top of the screen and click on Colorado Revised Statutes to read or download the 2014 edition.

Still hosted by the Office of Legislative Legal Services (OLLS), a legal resource department for the Colorado General Assembly, a new website with the state statutes features the updated laws.

The title of the website is still obscure.  For the unassuming, ‘2014 C.R.S.’ could mean anything or nothing at all.  Why the Office of Legislative Legal Services refuses to use the formal name, Colorado Revised Statutes, is beyond me.  They could have even used something like ‘Colorado State Law 2014′ which would have been more descriptive and had a better chance of an individual stumbling onto it through a search engine.  Instead OLLS apparently intends to keep their website to those in the know.  That is a shame.  CoCommonLaw is happy to point users to where they can access and download the law for free without signing a contract.

Colorado Revised Statutes 2014
Colorado Revised Statutes 2014

Another thing that is the same is the link to the Colorado Revised Statutes.   Still the Colorado General Assembly, Office of Legislative Legal Services, or any other statewide agency publicly acknowledges this free version of the Colorado Revised Statutes exists.  Instead and consistently, all of the links point to LexisNexis (LN), which forces individuals to sign a legally binding contract and give up rights in order to read the state law.  I went into detail about this statewide practice in my previous article, A Case for Ignorance of Colorado Law – Revisited.  Colorado pushes users to LN’s website, where individuals either have to enter into a contract of adhesion or purchase the state statutes for an exorbitant amount.

Lastly nothing, to the best of my knowledge, has changed with the Colorado General Assembly copyright on either parts or all of the state statutes.  Theoretically, the state of Colorado could come back and sue individuals under Colo. Rev. Stat. § 2-5-115 or § 2-5-118 (2).  It is a shame that has not changed either.

At least, the state continued to let individuals have access to their secret set of state laws.  Something is better than nothing.

Denver Sheriff Does Not Want to Share Accreditation Standards

The Denver Sheriff is really proud of the accreditations it has been awarded, really proud. On the front page of the Denver Sheriff website the accreditation are boasted about.  If that is not enough, Denver Sheriff Elias Diggins sat down with a Denver Post Editorial Writer and talked, and talked about the Department’s accreditations and how useful they are.

Because of the hype, I am interested to find out what these accreditations consist of.  How is the Denver Sheriff able to maintain these prestigious accreditations when they have faced numerous allegations of brutality and corruption by deputies?  The allegations were so severe former Denver Sheriff Gary Wilson was voluntarily demoted.  So what can the Denver Sheriff be doing so right with so much stuff going so wrong?

I made inquiries into two of the three accreditation standards that the Denver Sheriff currently holds: The Commission on Accreditation for Law Enforcement (CALEA), and The American Correctional Association (ACA).  Both agencies told me the only way I could get a copy of their policies was to purchase a year-long license for about $100. I then figured to turn to the Denver Sheriff.  In the article with the Denver Post Editorial Writer, Sheriff Diggins clearly states he is in possession of the records.  “‘These standards help anyone get better,’ Diggins said, pointing to boxes of documents for ACA accreditation on the floor of his office.”

My thought was I would file a public records request with the Denver Sheriff and get the standards directly from the Sheriff’s Office (this is the same approach I used to get the Colorado Revised Statutes).  Well it turns out the Denver Sheriff likes the brag about the fact they are accredited by three agencies, but they really don’t want to share what those accreditations entail.  The Denver Post article never once inquired into goes into the accreditations.  Kinda seems like it would be an important and newsworthy question to ask an embattled agency like the Denver Sheriff what their standards are.

So I filed my Open Records request with the Denver Department of Safety and last night I received a non-responsive, response.  “The accreditation standards requested in the email below are set by each accrediting body and are therefore records of each body.  Please direct your request to CALEA and ACA.” (See email screenshot below). The Denver Department of Safety tried to deflect my request.

Denver Sheriff Public Records Request Denial

Continue reading Denver Sheriff Does Not Want to Share Accreditation Standards

Colorado Courts Determining Public Interest in CCJRA Suits

It seems like Colorado courts are unsure of what their role is or should be in determining the public interest Colorado Criminal Justice Records Act (CCJRA) suits.  The Colorado Supreme Court has reversed track in a twenty eight year span in which standard of review the Court applies to CCJRA records requests denials.  Currently, the standard is an abuse of discretion.  I argue that is a mistake and the system is better served by returning to a de novo standard would be much more appropriate.

Public records statutes are founded upon the philosophy that because governmental decisions belong to the public, the people, as of right, may claim access to them.  Colorado public records law lets the citizen strip away the secrecy that surrounds the law-making process and discover who is making the law, for what purposes, to affect whom.

Under the law record custodians by law are supposed to weigh public and private interest when deciding whether to release criminal justice records.  Colo. Rev. Stat. § 24-72-305(5).  That does not always happen.  The Colorado General Assembly apparently thinks it is a good idea that there are not any checks or balances, and in all practicality only to give private citizens a private right to ask Colorado state courts to force custodians to hand over the documents.  This puts courts into a difficult position of doing the custodian’s job of weighing the public and private interests.

The Colorado Supreme Court has evolved in its view of how to handle these sorts of situations.  Unfortunately, the current view by the Court leaves individuals with little recourse against an obstinate custodian.

This article attempts to trace the how the Colorado Supreme Court treats situations where custodians did not or would not balance private and public interests and how the Court chose to deal with it.

Colorado Supreme Court

— Photo Credit: Jeffrey Beall, Flickr

Continue reading Colorado Courts Determining Public Interest in CCJRA Suits

Social Media and Colorado’s Sunshine Law

Social media makes it easy for any state or local government body with advisory, policy-making, or rule-making authority to discuss matters before them.  The problem is if these social media accounts are private and not accessible to the public then it is a violation of Colorado Sunshine laws.

Sharing is caring under Colorado’s Sunshine law.

The public policy for the state of Colorado set out in the Colorado Revised Statutes is “that the formation of public policy is public business and may not be conducted in secret.”  Colo. Rev. Stat. §24-6-401.  That seems like a pretty good goal — governmental transparency is a theme of this blog.

What makes social media dangerous to Sunshine laws is that it can be made private and very difficult to find out the contents of the conversations.

Denver-City-Council-Twitter
Denver-City-Council-Twitter- @DenCityCouncil

Continue reading Social Media and Colorado’s Sunshine Law

Enforcing Colorado Open Records Laws

Alaska has the bridge to nowhere.  Colorado has the Open Records laws that lead to nowhere….but it does not have to be that way.

I make this characterization because it appears only once in the past ten years have any of the largest prosecutorial agencies in Colorado have even investigated a custodian of public records violation.  In layman’s terms, I don’t think prosecutorial agencies are bringing charges against public records custodians who knowingly deal in bad faith, as the law prohibits.

It is a midemeanor for a public records custodian to knowingly violate state Open Records law.  Colo. Rev. Stat. § 24-72-206 (CORA violation) or Colo. Rev. Stat. § 24-72-309 (CCJRA violation).

I am trying to figure out why the law does not seem to be publicly enforced.  In this article I am going to explain the violation mechanism of the law, the records of several of the largest prosecutorial agencies in Colorado, and give some thoughts why the law has not been enforced historically.

**** Before I get into any sort of depth in this article I want to explain that I respect public servants and governmental employees. I have filed Open Records requests in both Arizona and Colorado for the most part without a problem.  I think the overwhelming majority of people are good and try to perform their jobs in accordance with the highest professional standards.   But for a variety of reasons, no profession is immune from the occasional breach of professionalism.  If everyone followed the law, we wouldn’t need police and prosecutors.  I really respect the individuals who are public record custodians, they have a very demanding job, and often times have to make very difficult decisions in releasing records.  However, I think there is the occasional custodian who is not acting altruistically, and acts instead out of self-interest.  This article is not meant to be a condemnation of custodians of public records, but in those rare cases when there is a knowing and willful violation of the law, how to better enforce it as we would with any other law.  I think it is time for a public discussion on enforcing Colorado’s Open Record laws.

Image from page 464 of "The Colorado Collegian Oct. 1896-June 1899" (1896)

 

— Uncopyrighted photo from Flickr.

Continue reading Enforcing Colorado Open Records Laws

UnAdvertised Educational Resource for Colorado Statutes

Why do the lawmakers get all the fun stuff in Colorado?  Ok, to be a little more serious, I know it is the Legislature’s job to write the Colorado Revised Statutes, but some of this stuff could be very helpful to citizens either trying to understand the law, or perhaps write their own ballot initiative.

The Colorado Office of Legislative Legal Services (OLLS) provides all sorts of legal aid.  In addition to copyrighting state law, the office is the legal research department for the Colorado General Assembly.  They help Legislators write the law, organize and compile the law before it is published, and have teams of experts on common legislative topics to provide any help that they may need.

On the OLLS homepage (which consists of a grand total of six sentences, so you don’t think I am cherry-picking any ideas) they state their mission as a resource to the Legislature, but also the public.  “As the embodiment of the idea of political self-determination, the Colorado legislative process needs to be accessible and understandable to citizens. Similarly, those of us whose job it is to facilitate that process should strive to keep it as open, courteous, and business-like as possible while serving the needs of legislators and the public.” See http://tornado.state.co.us/gov_dir/leg_dir/olls/index.htm.

From my interactions with OLLS, they are very sharp, and very professional.  They just do not happen to be the most accessible part of the government to citizens.  Since they have some really cool resources that can be very beneficial to citizens as well as Legislators, I am here to help them out with their public interactions — kind of as an OLLS Ambassador.

One really cool resource is their public/private website: Legisource.net (what is it with OLLS and these public/private websites?).  This is a blog type of website, similar in structure to cocommonlaw.com, and it is updated often with helpful topics.  No registration is required.  It is a public website that does not appear to be restricted in any way.  It just seems to be written and marketed to the Colorado General Assembly.  It is too bad they don’t market it also to the public, I think it could be really useful to the average citizen in Colorado trying to understand the law better.

For example, one of their recent articles, “Statutory Construction: Singular v. Plural, Gender and Time” is a really good primer that citizens can use to help them better understand the meaning of state law.  Published on Aug. 21, a little more than a week ago, it is the third in a series of articles that strive to help in understanding state law.  Citizens can benefit from that sort of article just as much as Legislators.  This is probably not something you will cite to in court, but if you want to think like the Colorado General Assembly, this is a great place to start.

Another example is they analyze how OLLS analyzes the recent case, Benefield et al. v. Colorado Republican Party, No. 11SC935 (Colo. June 30, 2014).   The case primarily deals with what are public and private records when constituents contact their legislators, and how attorneys fees are apportioned.   The analysis performed by OLLS is really quite good, as it traces the history of the case all the way to the beginning.  While beneficial to legislators on their legal duties, the case summary also provides citizens with what they should expect with privacy when contacting his or her legislator.

If you want a deeper dive into the Colorado Revised Statutes check out: Legisource.net.  It is chalk full of information about Colorado law.