May 27, 2016

Bills to Make References to Attorney General Gender Neutral, Authorize Pink Vests for Hunters, and More Signed

On Tuesday, April 12, 2016, the governor signed six bills into law, and on Thursday, April 14, 2016, the governor signed 18 bills into law. To date, the governor has signed 102 bills into law this legislative session. Some of the bills signed Tuesday and Thursday include a bill to make statutory references to the attorney general gender neutral, a bill to allow hunters to wear fluorescent pink vests, a bill allowing employees of an alcohol wholesaler to purchase alcohol at wholesale prices, a bill increasing judicial discretion in sentencing for violent crimes, and more. The bills signed Tuesday and Thursday are summarized here.

Tuesday, April 12, 2016

  • SB 16-068 – Concerning Wearing Fluorescent Pink Garments to Hunt Big Game, by Sen. Kerry Donovan and Reps. Daneya Esgar & Yeulin Willett. Currently, hunters of big game are required to wear fluorescent orange clothing. The bill allows hunters to wear fluorescent pink as well.
  • HB 16-1030 – Concerning the Use of Off-Highway Vehicles, by Reps. J. Paul Brown & Lois Court and Sen. Kerry Donovan. Currently, anyone age 10 or over can operate an off-highway vehicle with supervision of a licensed driver. The bill allows local governments to require off-highway vehicle operators to have a driver’s license or carry liability insurance.
  • HB 16-1163 – Concerning Appropriations from the Noxious Weed Management Fund, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill specifies that unexpended monies in the noxious weed management fund are subject to reappropriation.
  • HB 16-1182 – Concerning the Continuation of the Commodity Metals Theft Task Force, by Reps. Lois Court & Crisanta Duran and Sens. John Cooke & Rollie Heath. The bill extends the sunset of the Commodity Metals Theft Task Force until September 1, 2025.
  • HB 16-1184 – Concerning the Administration of Money that Is Required Under Existing Law to be Transferred from the High Cost Support Mechanism to the Broadband Fund, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill requires that the High Cost Support Mechanism funds be transferred to the Broadband Fund on July 1 of each year, rather than on allocation.
  • HB 16-1269 – Concerning the Ability of the Department of Revenue to Allow Additional Application Methods for Identification Cards, by Rep. Jovan Melton and Sen. John Cooke. The bill allows holders of Colorado driver’s licenses that are current or less than one year out-of-date to apply by mail for an identification card.

Thursday, April 14, 2016

  • HB 16-1094 – Concerning Making References to the Attorney General in the Colorado Revised Statutes Gender Neutral, by Rep. Timothy Dore and Sen. Ellen Roberts. The bill revises the Colorado Revised Statutes to make references to the attorney general gender-neutral.
  • HB 16-1157 – Concerning the Establishment of a Future Sunset Review of the Functions Delegated to the Director of the Division of Professions and Occupations Under the “Michael Skolnik Medical Transparency Act of 2010” to Implement the Recommendations of the Department of Regulatory Agencies as Contained in its 2015 Sunset Report Pertaining to the Division of Professions and Occupations, by Reps. Alec Garnett & Tracy Kraft-Tharp and Sen. Jack Tate. The bill adds a September 1, 2021, sunset date for the Michael Skolnik Medical Transparency Act of 2010.
  • HB 16-1168 – Concerning the Continuation of the Rural Alcohol and Substance Abuse Prevention and Treatment Program, by Reps. Joann Ginal & Jessie Danielson and Sen. Ray Scott. The bill extends the sunset of the Rural Alcohol and Substance Abuse Prevention and Treatment Program until September 1, 2025.
  • HB 16-1169 – Concerning the Appointment of Representatives of the Southern Ute and Ute Mountain Ute Tribes as Voting Members of the Statewide Transportation Advisory Committee, by Rep. Don Coram and Sen. Ellen Roberts. The bill alters the membership of the Statewide Transportation Advisory Committee to include as full voting members one representative from the Southern Ute Tribe and one representative from the Ute Mountain Ute Tribe.
  • HB 16-1176 – Concerning the Authority of a Licensed Wholesaler to Establish an Employee Purchase Program Under Which its Employees May Purchase Directly from the Wholesaler Alcohol Beverage Products Sold by that Wholesaler, by Rep. Steve Lebsock and Sen. Jack Tate. The bill allows licensed vinous and spiritous wholesalers to establish an employee purchase program.
  • HB 16-1188 – Concerning Requirements for the Provision of Additional Public Information by a Separate Legal Entity Established by Contract by a Combination of Political Subdivisions of the State, by Rep. Paul Rosenthal and Sen. Beth Martinez Humenik. The bill requires a separate legal entity formed by a combination of local governments and political subdivisions to file a copy of the intergovernmental agreement with the Division of Local Government in the Department of Local Affairs.
  • HB 16-1190 – Concerning the Use of Deadly Force in a Detention Facility, by Rep. Timothy Dore and Sen. John Cooke. The bill clarifies that deadly force is not allowed against intruders in a dwelling that is a detention facility.
  • HB 16-1192 – Concerning a Nonsubstantive Recodification of the Sunset Review Procedures, by Rep. Daniel Kagan and Sen. Pat Steadman. The bill reorganizes sunset review provisions in statutes by removing repealed provisions and renumbering the remaining provisions for clarity.
  • HB 16-1193 – Concerning Granting Electronic Access to Court Information to Attorneys Under Contract with the Office of the Respondent Parents’ Counsel, by Rep. Millie Hamner and Sen. Kent Lambert. The bill grants attorneys working with the Office of Respondent Parents’ Counsel electronic access to the name index and register of actions databases in the Judicial Department.
  • HB 16-1229 – Concerning Modification of the Means of Repayment for Certain Ongoing Financial Obligations Incurred by the State in Order to Fund Capital Construction Projects for State-Supported Institutions of Higher Education, by Rep. Bob Rankin and Sen. Pat Steadman. Currently, a portion of the Federal Mineral Lease revenue is transferred into a reserve fund and a revenues fund to support capital construction projects at institutes of higher education. The bill specifies that for this fiscal year, all money in the reserve fund should be transferred into the revenues fund and the reserve fund should be eliminated.
  • HB 16-1247 – Concerning a Supplemental Appropriation to the Department of Public Health and Environment, by Rep. Millie Hamner and Sen. Kent Lambert. The bill allows a supplemental appropriation to the Department of Public Health and Environment.
  • HB 16-1272 – Concerning Procedures to be Followed in Connection with the Disconnection by Ordinance of Land from a Municipality, by Rep. Tracy Kraft-Tharp and Sen. Jack Tate. The bill modifies the procedures for the owner of a tract of land adjacent to a municipality to have the tract of land disconnected from the municipality.
  • HB 16-1297 – Concerning the Immediate Reestablishment of the Voluntary Contributions Excluded from the 2015 Colorado Income Tax Return Form for Not Receiving the Requisite Minimum Dollar Amount of Contributions by the Statutory Deadline, and, in Connection Therewith, Expanding the Number of Voluntary Contributions that May Appear on the Income Tax Return Form and Lowering the Minimum Amount of Donations that Must be Received by Every Fund Appearing on the Form, by Rep. Lois Court and Sen. Beth Martinez Humenik. The bill expands the number of voluntary contribution income tax check-offs on a state income tax form from 15 to 20 and lowers the minimum contribution amount that a program must receive to stay on the form from $75,000 to $50,000, and reestablishes check-offs that were removed last year because they did not meet the minimum contribution amount.
  • HB 16-1416 – Concerning the Transfer of Money from the General Fund to Cash Funds that are Used for the State’s Infrastructure, by Rep. Millie Hamner and Sen. Kent Lambert. The bill replaces transfers specified as percentages with actual dollar amounts.
  • SB 16-051 – Concerning Increasing Judicial Discretion Regarding the Imposition of Consecutive Sentences for Violent Crimes, by Sens. Mike Johnston & Kevin Lundberg and Rep. Jovan Melton. The bill removes the requirement that people who commit two or more separate, specified crimes of violence arising out of the same incident be sentenced consecutively.
  • SB 16-099 – Concerning Implementing Recommendations of the State Auditor’s Office by Establishing the Authority of the Correctional Education Program to Sell Inmate-Produced Products to Specified Persons, by Sen. Cheri Jahn and Rep. Dianne Primavera. The bill authorizes the correctional education program to sell goods produced by inmates to other inmates, invited guests, employees of the department, governmental agencies, or nonprofit organizations, provided certain conditions are met.
  • SB 16-110 – Concerning Protecting the Privacy of Child Victims when Releasing Criminal Justice Records, by Sen. Laura Woods and Rep. Paul Lundeen. The bill requires the custodian of criminal justice records to make a notation of “child victim” whenever the name is disclosed during official proceedings, except when information is shared between certain state and local government agencies.
  • SB 16-122 – Concerning Additional Oversight of the Activities of the Department of Transportation, by Sen. Randy Baumgardner and Reps. Dan Nordberg & J. Paul Brown. The bill requires the Colorado Department of Transportation to undergo an audit, release funds budgeted for certain projects within one year or sooner, post on its website information related to public bid contracts, and more.

For all of Governor Hickenlooper’s 2016 legislative decisions, click here.

HB 16-1058: Creating the Crime of Misuse of Electronic Images by a Juvenile

On January 13, 2016, Reps. Yeulin Willett & Rhonda Fields and Sens. Linda Newell & John Cooke introduced HB 16-1058 – Concerning Creating the Crime of Misuse of Electronic Images by a Juvenile. The bill was introduced in the House and assigned to the Public Health Care & Human Services Committee. The committee heard testimony but the bill failed on a committee vote.

This bill creates the crime of misuse of sexually explicit images by a minor. The offense prohibits individuals under eighteen years of age from knowingly distributing through electronic means or possessing a sexually explicit image of himself, herself, or another juvenile who, as depicted in the image, is within four years of the age of the charged juvenile. The crime of misuse of a sexually explicit image of a minor is a class two misdemeanor, and if a juvenile is charged with the offense, he or she cannot be charged with the crime of sexual exploitation of a child.

It is an affirmative defense to the crime of misuse of sexually explicit images by a juvenile if the juvenile: (i) did not solicit or request the image; (ii) did not participate or encourage that making of the image; (iii) did not transmit or distribute the image to another; and (iv) took reasonable steps within 72 hours to destroy, delete or report the images.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Bills for Exemptions from Liquor Licensing, Rule of 7 for Children’s Code, and More Signed by Governor

On Friday, March 18, 2016, Governor Hickenlooper signed 14 bills into law. To date, he has signed 37 bills this legislative session. The bills signed Friday include a bill conforming Children’s Code statutes to the “Rule of 7,” exemptions from liquor license requirements for institutes of higher education and home brewers, dates of performance audits for certain governmental entities, and more. The bills signed Friday are summarized here.

  • HB 16-1013 – Concerning Authorizing School Districts to Purchase Crime Insurance Coverage in Lieu of Surety Bonds, by Rep. Alec Garnett and Sen. Vicki Marble. The bill allows school districts to purchase crime insurance instead of surety bonds. Currently surety bonds are required for certain district employees who handle funds in excess of $50.
  • HB 16-1028 – Concerning Modifications to the Statewide Death and Disability Plan Administered by the Fire and Police Pension Association, by Rep. Kevin Van Winkle and Sen. John Cooke. The bill changes computations of fund transfers between the statewide death and disability plan and the Fire and Police Pension Association.
  • HB 16-1042 – Concerning an Exemption from Liquor Licensing Laws for a Brewing Program Offered by a State Institution of Higher Education, by Rep. Jeni James Arndt and Sen. Jerry Sonnenberg. The bill creates an exemption from state liquor licensing laws for state institutions of higher education engaging in manufacturing and tasting of beer for teaching or research purposes. The beer cannot be sold or offered for sale and may only be tasted by students, researchers, expert tasters, and qualified employees who are at least 21 years old.
  • HB 16-1043 – Concerning the Joint Technology Committee’s Authority to Approve the Request for a Waiver of Certain Deadlines after Moneys for a Project have been Appropriated, by Rep. J. Paul Brown and Sen. Randy Baumgardner. Currently, state agencies and institutes of higher education that receive funding for projects are required to encumber some of the funds within a certain time period or, if they cannot, they are required to request a waiver. The bill exempts information technology capital projects overseen by the Joint Technology Committee from the waiver requirements.
  • HB 16-1057 – Concerning Statutorily Established Time Periods that are Multiples of Seven Days, by Rep. Kim Ransom and Sen. Michael Merrifield. The bill modifies time periods in the Children’s Code to conform to the “Rule of 7.”
  • HB 16-1081 – Concerning Removing Obsolete Reporting Provisions in Title 25.5 of the Colorado Revised Statutes, by Reps. Kim Ransom & Daneya Esgar and Sens. Kevin Lundberg and Linda Newell. The bill repeals reporting requirements for the Department of Health Care Policy and Financing for certain topics.
  • HB 16-1084 – Concerning a Modification from the Exemption from the “Colorado Liquor Code” for Home Brewers to Permit an Adult Other Than the Head of the Family to Engage in Home Brewing Activities for Personal Use Without Obtaining a Liquor License, by Rep. Steve Lebsock and Sen. Chris Holbert. Currently, the head of a family can brew beer or wine for family use without obtaining a liquor license. The bill expands the allowance to any adult in the household for personal use.
  • HB 16-1086 – Concerning a Modification of the Dates on Which the Required Performance Audits of Certain Governmental Entities are Due, by Reps. Su Ryden & Dan Nordberg and Sen. Chris Holbert. The bill extends the deadline by which the Department of Personnel and Administration and State Personnel Board must complete an audit from December 1, 2016, to December 1, 2019. The bill also eliminates the requirement that the department and board must be audited every four years.
  • HB 16-1284 – Concerning Divestment by the Public Employees’ Retirement Association from Companies that have Economic Prohibitions Against the State of Israel, by Reps. Dan Nordberg & Dominick Moreno and Sens. Owen Hill & Leroy Garcia. The bill requires PERA to take steps to identify all companies that have economic prohibitions against Israel by January 1, 2017, and to update the list biannually thereafter. PERA is required to notify each company of its restricted status and remove companies that cease to have prohibitions within 180 days.
  • SB 16-022 – Concerning Removing Certain Limitations on the Pilot Program to Mitigate Cliff-Effect for Low Income Families who are Working and Receiving Child Care Assistance, by Sen. Beth Martinez Humenik and Rep. Brittany Petterson. The bill removes the existing 10-county cap on counties that can participate in the Colorado Child Care Assistance Cliff Effect Pilot Program, and also removes the two-year participation requirement if the Department of Human Services determines that participation for a shorter period will provide relevant information.
  • SB 16-029 – Concerning Changes to Colorado Insurance Laws Necessary to Maintain Accreditation with the National Association of Insurance Commissioners (NAIC) And, In Connection Therewith, Adopting a New Own Risk and Solvency Assessment Law (ORSA) in a Form Substantially Similar to the NAIC Model and Enhancing Colorado’s Insurance Holding Company System Law by Adding a Required NAIC Model Provision Specifying the Insurance Commissioner’s Power to Issue Subpoenas and Examine Witnesses, by Sens. Mark Scheffel & Rollie Heath and Reps. Crisanta Duran & Polly Lawrence.
  • SB 16-031 – Concerning Authority of the Director of the Office of Legislative Legal Services to Sign Vouchers for Expenditures of the Office, by Sen. Pat Steadman and Rep. Timothy Dore. Currently, the chair of the Committee on Legal Services is required to sign any voucher for OLLS expenditure. The bill allows the director of OLLS to sign vouchers that do not exceed $5,000.
  • SB 16-050 – Concerning a Hold Harmless Provision for Retailers Liable for Any Money Payable as a Result of an Incorrect Location Code Assigned by the Department of Revenue, by Sens. Tim Neville & Cheri Jahn and Reps. Lori Saine & Su Ryden. The bill releases retailers from liability for failure to collect sales tax because of a misassigned Department of Revenue location code.
  • SB 16-066 – Concerning Creation of the Contingency Reserve Fund for School Districts, by Sen. Pat Steadman and Rep. Millie Hamner. The bill recreates the State Contingency Reserve Fund in statute without substantive changes. The fund was mistakenly repealed on July 1, 2015.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Colorado Court of Appeals: Relinquishment-based Termination Not Allowed when Parent is Party to Dependency and Neglect Action

The Colorado Court of Appeals issued its opinion in People in Interest of E.M. on Thursday, March 10, 2016.

Children’s Code—Dependency and Neglect—Relinquishment and Adoption— Jurisdiction.

In a question of first impression, the Court of Appeals decided that a county department of social services may not move to involuntarily terminate parental rights in a relinquishment case under article 5 of the Children’s Code when the children are the subject of a pending dependency and neglect case under article 3.

The Alamosa County Department of Human Services (department) filed a petition alleging that three children were dependent or neglected because their mother was addicted to pain pills and their father was incarcerated. The court granted temporary custody of the children to the department and placed them with relatives.

Subsequently, both parents admitted the petition’s allegations and the court adjudicated the children dependent and neglected. The court adopted a treatment plan for mother and found that no appropriate treatment plan could be devised for father.

A year after the initiation of the case, the guardian at litem (GAL) moved to terminate the parental rights of both parents under article 3. Mother relinquished her parental rights at the hearing. The department then filed three separate relinquishment cases (one for each child) under article 5. The article 3 case remained open and pending. The court terminated father’s parental rights under the relinquishment statute. At the same time, the court also issued an order establishing a new permanency planning goal and setting a review hearing in the dependency and neglect case. Father appealed the three judgments terminating his parental rights.

Father argued that the Children’s Code does not permit the department to file its termination motion in an article 5 proceeding rather than proceeding in the article 3 case. The Court agreed, holding that the dependency and neglect court maintains continuing, exclusive jurisdiction over the status of a child who is alleged to be dependent and neglected until the child reaches majority or its jurisdiction is otherwise terminated.

The Court based its holding on three grounds. First, the separate and distinct purposes of article 3 and article 5 are not well served if they are intertwined. Second, the statutes make clear that the dependency and neglect court maintains continuing, exclusive jurisdiction over any child who has been adjudicated dependent and neglected. Third, under article 3, parental rights may be terminated only through the Parent-Child Legal Relationship Termination Act of 1987, not under article 5.

The judgments were dismissed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Parental Rights Terminated As of Date of Juvenile Court’s Relinquishment Order

The Colorado Court of Appeals issued its opinion in In re Marriage of Rohrich on Thursday, March 10, 2016.

Mother’s and Father’s marriage ended in 2008. Parenting time was equally allocated and Father was ordered to pay $101 monthly in child support. In 2012, Mother relocated to South Dakota with the children, and Father’s support obligation was increased to $288 monthly. When the child support enforcement unit moved again in 2013 to modify Father’s support, the parties entered into mediation and reached an agreement that Father would relinquish his parental rights and the children would be adopted by Mother’s new husband.

In November 2013, Father petitioned the juvenile court to relinquish his parental rights, which petition was granted, and then moved in the dissolution court to terminate his child support obligation. The district court granted his motion and terminated the child support obligation as of the date Mother accepted his proposal to terminate his parental rights.

Mother appealed, arguing the district court erred in determining that Father was “effectively no longer a parent” as of the date he agreed to relinquish his parental rights and instead argued that the termination of Father’s support duty must be found under the Colorado Children’s Code. Mother alternatively contended the district court erred in retroactively terminating Father’s child support obligation under the Uniform Dissolution of Marriage Act.

The Colorado Court of Appeals agreed with both arguments. The court noted that Father’s agreement to end his rights did not terminate his child support obligation, which could only end when his rights were formally relinquished. The court also held that the district court erred in relying on the UDMA to retroactively modify Father’s support obligations, noting that because the children were spending more time with Mother, the support obligation should have been increased, not decreased.

The court of appeals reversed and remanded.

Colorado Court of Appeals: Life Without Parole Sentence for Juvenile Remanded for Montgomery Evaluation

The Colorado Court of Appeals issued its opinion in People v. Wilder on Thursday, February 25, 2016.

Juvenile—First-Degree Murder—Sentence.

In accordance with the law in 1999, defendant was sentenced to mandatory life without parole based on his conviction of first-degree murder after deliberation. Defendant was a juvenile when the crime was committed.

In February 2015, the Court of Appeals reconsidered defendant’s sentence based on Miller v. Alabama, 132 S.Ct. 2455 (2012). The Court concluded that defendant’s sentence was unconstitutional, vacated the sentence, and remanded the case for an individualized determination of whether life without parole was an appropriate sentence. The Court’s decision was based on the conclusion that Miller applied retroactively.

In June 2015, the Colorado Supreme Court decided People v. Tate, 2015 CO 42, holding, among other things, that Miller did not apply retroactively. Acting on a petition for certiorari, in October 2015 the Colorado Supreme Court vacated the decision in this case and remanded for reconsideration in light of Tate. At that time, Montgomery v. Louisiana, 577 U.S. ___ (2016), was pending in the U.S. Supreme Court. The division decided to wait for the result in Montgomery before deciding defendant’s case under Tate.

The U.S. Supreme Court decided Montgomery in January 2016. The effect of Montgomery was to overrule that portion of Tate concluding that Miller should not be applied retroactively. As directed by the Colorado Supreme Court, and in light of Montgomery, the Court of Appeals reached the same result and remanded this case to the trial court, directing it to consider whether life without the possibility of parole is an appropriate sentence given defendant’s “youth and attendant characteristics.” If the trial court concludes that life without possibility of parole is unwarranted, life with the possibility of parole after 40 years is the appropriate sentence.

Summary and full case available here, courtesy of The Colorado Lawyer.

e-Legislative Report: February 22, 2016

Welcome e-leg report readers to this week’s installment of the world under the Gold Dome. As always, we welcome your feedback, thoughts, comments and questions. This news report is designed to keep you up-to-date on activities at the capitol that are of interest to the bar association and to lawyers across practice areas.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings; please RSVP if you are interested.

LPC Meeting Update

The following bills were discussed by the LPC on 2.19.16. Other bills of interest from that agenda are tracked and updated below.

HB 16-1191 Bill Of Rights For Persons Who Are Homeless
The bill creates the “Colorado Right to Rest Act,” which establishes basic rights for persons experiencing homelessness, including, but not limited to, the right to use and move freely in public spaces without discrimination, to rest in public spaces without discrimination, to eat or accept food in any public space where food is not prohibited, to occupy a legally parked vehicle, and to have a reasonable expectation of privacy of one’s property. The bill does not create an obligation for a provider of services for persons experiencing homelessness to provide shelter or services when none are available.
The LPC considered this bill at the request of the Civil Rights Committee, but took no position on the bill.

HB 16-1110 Parent’s Bill Of Rights
The bill establishes a liberty interest and fundamental right for parents in the care, custody, and control of a parent’s child, restricting governmental entities from infringing on such interests and rights without demonstrating a compelling governmental interest that cannot be accomplished through less restrictive means.
The LPC voted to oppose this bill because it reverses the long-standing policy position of the Colorado Judicial system to act in the best interest of the child.

HB 16-1235 Commissions Evaluating State Judicial Performance
The bill makes revisions to various functions of the state commission on judicial performance (state commission) and the district commissions on judicial performance (district commission), referred to collectively as the “commissions.” The revisions include: changing the makeup of the state commission to include one representative from each judicial district to ensure representation from the entire state; establishing guidelines for when attorneys and nonattorneys are appointed to the state commission by a district commission; not allowing the chief justice to select individuals for the state commission, which reviews the chief justice’s performance; mandating annual public meetings at which the public is invited to attend and confidentially comment on justices and judges; requiring the state commission to obtain and verify required financial disclosures, criminal histories, and driving histories for each justice or judge reviewed by the commissions; requiring judicial evaluations to take place every two years and to be made public at that time; mandating that the commissions make a “do not retain” recommendation when a majority of commissioners determine that it is more probable than not that a justice or judge knowingly committed a dishonest act during the performance of judicial duties, knowingly made inaccurate or insufficient public financial disclosures, or was improperly influenced by a conflict of interest in performing a judicial act; and mandating that the commissions make a “do not retain” recommendation when two-thirds of the attorneys who complete a questionnaire or survey for the commission recommend that the justice or judge not be retained. The bill is funded from any fees and cost recoveries for electronic filings, network access and searches of court databases, electronic searches of court records, and any other information technology services performed pursuant to statute.
The LPC voted to oppose this bill based on the consideration that this is a longstanding and fundamental change that is not in the best interest of the administration of justice in Colorado.

SB 16-085 Uniform Trust Decanting Act
Colorado Commission on Uniform State Laws. “Decanting” is a term used to describe the distribution of assets from one trust into a second trust. The bill enacts the “Colorado Uniform Trust Decanting Act” (Act), which allows a trustee to reform an irrevocable trust document within reasonable limits that ensure the trust will achieve the settlor’s original intent. The Act prevents decanting when it would defeat a charitable or tax-related purpose of the settlor.
The LPC voted to support this Uniform Bill as modified to meet the considerations of Family Law, Trust & Estate and Elder Law sections.

Updates regarding bills the CBA is currently focused on:

SB 16-013 Clean-up Office Of The Child Protection Ombudsman
Senator Newell has pulled the language of concern from the bill.  SB 13 was passed out of committee on Monday.

SB 16-043 Student Loans Consumer Protections
The CBA testified in favor of this bill, at the request of the Colorado Young Lawyers Division. The bill failed to pass out of committee.

SB 16-047 No Detention For Juveniles Who Are Truant
The CBA testified that while detention for truancy is not something the Bar supports as policy, the bill was fundamentally flawed by prohibiting the judicial branch from effecting its own valid orders. Case law from Colorado in the 1990s is directly on point to the Bar’s constitutional concerns.

SB 16-084 Uniform Substitute Health Care Decision-making Documents
The Bar remains neutral on this bill, while the Health Law Section has some concerns and opposition to the language. The bill was heard in committee, but was not voted on. We are waiting for the Senate to take action on the bill.

SB 16-071 Revised Uniform Athlete Agents Act 2015
The CBA has not taken a position on this bill. The Department of Regulatory Affairs has some outstanding concerns that they are addressing with the Uniform Law Commission.

SB 16-088 Revised Uniform Fiduciary Access To Digital Asset
This bill, as amended to accommodate both the Trust & Estate and Business Law Sections, is moving through the legislature as anticipated.

SB 16-115 Electronic Recording Technology Board
The bill, which is supported by the Bar and the Real Estate Section, has passed its first two committee hearings and now heads to Senate Appropriations.

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death
The CBA is working with the sponsors on some amendments for this bill. The bill is now in its second chamber.

HB 16-1078 Local Government Employee Whistleblower Protection
The CBA is working on this bill, which was amended and is now headed to appropriations in the House.

New Bills of Interest

These are a few new bills recently introduced. They have been sent to CBA sections for review and comment. If you have any questions about these or any other bills, please drop me a line. I’m happy to help you however I can.

HB 16-1270 Security Interest Owner’s Interest In Business Entity
Under current law, the “Uniform Commercial Code” (Code) invalidates contractual limits on the transferability of some assets that can be subject to a security interest. In 2006, the “Colorado Corporations and Associations Act” (Act) was amended to clearly and broadly exempt an owner’s interest in a business entity from these Code provisions to effectuate the “pick your partner” principle that allows small businesses to control their ownership. Section 3 of the bill narrows the exemption in the Act to that necessary for “pick your partner,” and sections 1 and 2 codify this narrowed exemption in the Code.

HB 16-1275 Taxation Of Corporate Income Sheltered In Tax Haven
The bill pertains to an affiliated group of corporations filing a combined report. In a combined report filing, the tax is based on a percentage of the entire taxable income of all of the includable corporations, but the tax is assessed only against the corporation or corporations doing business in Colorado. Including more affiliated corporations in the combined report may result in an increase in income subject to tax. There are jurisdictions located outside of the United States with no tax or very low rates of taxation, strict bank secrecy provisions, a lack of transparency in the operation of their tax system, and a lack of effective exchange of information with other countries. There are several common legal strategies for sheltering corporate income in such jurisdictions, often called “tax havens.” Notwithstanding a current requirement in state law that those corporations with 80% or more of their property and payroll assigned to locations outside of the United States be excluded from a combined report, the bill makes a corporation that is incorporated in a foreign jurisdiction for the purpose of tax avoidance an includable C corporation for purposes of the combined report. The bill defines a corporation incorporated in a foreign jurisdiction for the purpose of tax avoidance to mean any C corporation that is incorporated in a jurisdiction that has no or nominal effective tax on the relevant income and that meets one or more of five factors listed in the bill, unless it is proven to the satisfaction of the executive director of the department of revenue that such corporation is incorporated in that jurisdiction for a legitimate business purpose. The bill requires the state controller to credit a specified amount per fiscal year to the state education fund to be used to help fund public school education. The bill requires the secretary of state to submit a ballot question, to be treated as a proposition, at the statewide election to be held in November 2016 asking the voters to: increase taxes annually by the taxation of a corporation’s state income that is sheltered in a foreign jurisdiction for the purpose of tax avoidance; provide that the resulting tax revenue be used to help fund elementary and secondary public school education; and allow an estimate of the resulting tax revenue to be collected and spent notwithstanding any limitations in section 20 of article X of the state constitution (TABOR).

SB 16-131 Overseeing Fiduciaries’ Management Of Assets
The bill clarifies statutory language concerning the removal of a fiduciary to ensure that a fiduciary’s authority is suspended as soon as a petition to remove the fiduciary is filed. The bill adds a provision to the conservatorship statutes stating that an adult ward or protected person has a right to be represented by a lawyer of their choosing unless the trial court finds that the person lacks sufficient capacity to provide informed consent for representation by a lawyer. The bill states that after a fiduciary receives notice of proceedings for his, her, or its removal, the fiduciary shall not pay compensation or attorney fees and costs from the estate without an order of the court.

SB 16-133 Transfer Of Property Rights At Death
Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. The bill removes the requirement that the person who swears to and affirms the supplementary affidavit have no record interest in the real property. The bill includes inherited individual retirement accounts and inherited Roth individual retirement accounts as property exempt from levy and sale under writ of attachment or writ of execution. The bill, which amends provisions concerning determination-of-heirship proceedings, clarifies the definition of “interested person,” so that anyone affected by the ownership of property may commence a proceeding; describes when an unprobated will may be used as part of a proceeding; clarifies notice requirements; and ensures that a judgment and decree will convey legal title as opposed to equitable title. The bill enacts portions of section 5 of the “Uniform Power of Appointment Act,” with amendments.

Colorado Court of Appeals: Treatment Plan Must Be Appropriate to Rehabilitate Parent

The Colorado Court of Appeals issued its opinion in People in Interest of K.B. on Thursday, February 11, 2016.

In March 2013, the Mesa County Department of Human Services opened a dependency and neglect case concerning 16-year-old K.S., 13-year-old Mi.B., 11-year-old K.B., and 9-year-old Ma.B. The Department alleged that Mother and Father fought frequently; Father yelled at the children, called them names, and physically abused them; Mi.B. had threatened one of his sisters with a knife after an argument; and K.S., who had cerebral palsy, was not receiving physical therapy she needed. Treatment plans were adopted for both Mother and Father, who was the father to the three older children. The parents’ treatment plans were amended from time to time, including requiring both parents to actively participate in individual therapy.

In August 2013, the children were removed from the parents’ home due to renewed concerns about domestic violence, and in October 2013 the deferred adjudication was converted to an order of adjudication. In December 2014, the Department filed a motion to terminate the parent-child relationships between each of the parents and the two younger children. In July 2015, after a hearing, the court granted the motion to terminate parental rights, and both parents appealed.

On appeal, Mother contended the treatment plan was not appropriate because although domestic violence was a feature of her relationship with Father from the beginning, no domestic violence counseling or treatment was ever offered to her, and she was not told to separate from Father. The court of appeals concluded further findings were required on the issue. The court noted that in order to be appropriate, a treatment plan must relate to the child’s needs and provide treatment objectives that are reasonably calculated to render a parent fit to provide adequate parenting within a reasonable time. The court noted that the fact that a treatment plan was not successful does not mean that it was not appropriate.

Both Mother and Father had expressly stipulated that their treatment plans were appropriate, and the court found that the standard for preserving a challenge to the appropriateness of a treatment plan is not clear. Mother contended that her treatment plan was inappropriate because it failed to address the domestic violence concerns. The trial court concluded Mother could not challenge the treatment plan’s appropriateness for the first time at the termination hearing, but she could challenge the reasonableness of the efforts to rehabilitate her. The trial court found that Mother’s treatment plan failed because she did not actively participate in therapy, but it did not make explicit findings as to whether the Department fulfilled its obligation to show by clear and convincing evidence that it had provided Mother with a treatment plan that was reasonably calculated to render her fit to provide adequate parenting within a reasonable time, and whether the services were appropriate to support Mother’s treatment plan but were unsuccessful in accomplishing the plan’s purpose. The court of appeals remanded for explicit findings about the reasonableness of the treatment plan and whether the services were appropriate.

The court of appeals addressed Mother’s remaining contentions on appeal because the trial court may conclude on remand that the services were appropriate. Mother contended the record did not support the trial court’s finding that she did not comply with her treatment plan. The court of appeals disagreed. Department case managers testified that Mother did not have adequate housing for her family at the end of the case, she did not progress beyond supervised visitation, and her attendance at individual therapy was very poor. The Department employees also testified that a significant concern about Mother’s sexual boundaries with the children was supposed to be addressed at individual therapy, but Mother’s attendance at therapy was “almost nonexistent.” The court of appeals noted that these findings were more than sufficient to support the trial court’s order. Mother also contended the findings were inadequate to support the trial court’s finding that she is unfit. The court of appeals again disagreed. The current case manager testified that Mother was unfit due to her poor sexual boundaries and failure to attend individual therapy, and she was unlikely to become fit due to her poor progress with the treatment plan. The court of appeals found this testimony adequate to support the trial court’s findings of unfitness, and noted that if the court finds on appeal that the treatment plan was adequate, it may reinstate the termination order.

Both parents argued the trial court failed to evaluate less drastic alternatives to termination. The court of appeals disagreed. The Department had investigated the possibility of placing Ma.B. with her paternal grandparents in Florida, but she was frightened to be separated from the rest of her family, and the grandparents never completed the screening process. No other family members were found who were willing and able placements for Ma.B. or K.B. The trial court further found that because permanency was important to both Ma.B. and K.B., continued foster care was not a viable less drastic alternative to adoption. The court of appeals found no error in the trial court’s findings. Mother also argued that termination was not in the children’s best interests, and that instead she should be given more time to comply with her treatment plan. The trial court concluded that the benefits of termination outweighed the risks, and the court of appeals found no error in this conclusion.

The court of appeals next evaluated Father’s appeal. Father contended that the Department failed to make reasonable efforts to reunite him with Ma.B. or that his treatment plan was reasonable. He argued that the trial court erred in suspending his visitations in March 2015 and in relying on that suspension to terminate his parental rights. The court of appeals disagreed. The trial court found that Father, like Mother, had only complied in part with the treatment plan but had failed to comply with the plan’s substantive requirements. Father’s parenting time with Ma.B. had been suspended due to his angry outbursts and their effect on Ma.B. He was told he needed to resume individual therapy for his visits to continue, and he did not do so. The court found the evidence sufficient to support that the Department made reasonable efforts to reunite Father and Ma.B.

The court of appeals remanded for further findings as to whether Mother’s treatment plan was adequately crafted to render her a fit parent within a reasonable time. The court affirmed on all other points.

e-Legislative Report: February 16, 2016

Welcome e-leg report readers to this week’s installment of the world under the Gold Dome. As always, we welcome your feedback, thoughts, comments and questions. This news report is designed to keep you up to date on activities at the capitol that are of interest to the bar association and to lawyers across practice areas.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings; please RSVP if you are interested.

LPC Meeting Update

The following bills were discussed by the LPC. Other bills of interest from that agenda are tracked and updated below.

HB 16-1078 Local Government Employee Whistleblower Protection
The bill prohibits a county, municipality, or local education provider from imposing any disciplinary action against an employee on account of the employee’s statements to any person about the local government that the employee reasonably believes to show: a violation of a state or federal law, a local ordinance or resolution, or a local education provider policy; a waste or misuse of public funds; fraud; an abuse of authority; mismanagement; or a danger to the health or safety of students, employees, or the public. The bill permits an employee to file a written complaint with the office of administrative courts, for referral to an administrative law judge, alleging that a local government has imposed disciplinary action that violates this prohibition and seeking injunctive relief and damages. Employees who lose the administrative hearing may file a civil action in district court. The employee protection does not apply if the disclosure was false or made with reckless disregard for the truth or falsity thereof, or if it was of a protected public record or confidential information that was not reasonably necessary to show one or more of the identified circumstances. Administrative law judges are given jurisdiction to hear, determine, and make findings and awards on all these whistleblower cases. The director of the office of administrative courts is required to establish rules to govern these proceedings and hearings.
The LPC voted on the recommendation and request of the Government Counsel and Labor & Employment Law sections to oppose the bill.

HB 16-1154 Employer Definition Clarify Franchisee Status
The bill clarifies that the definition of “employer” only includes a person who possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.
The LPC voted to support the bill on the recommendation and presentation of the Franchise subsection of Business Law section.

HB 16-1232 Sunset DOR Private Letter Ruling & General Information Letter
Currently, the executive director of the department of revenue (department), or the executive director’s designee, is charged with issuing, on written request from a taxpayer, private letter rulings (binding determinations regarding the tax consequences of a proposed or completed transaction), and Information letters (nonbinding statements providing general information regarding any tax administered by the department). This duty is currently scheduled to sunset on September 1, 2016. The bill continues the requirement of the department to issue these letters until September 1, 2023. The bill also specifies that the department must track the total state full-time equivalent (FTE) personnel positions necessary and the hours dedicated by each FTE for the issuance, declination, modification, or revocation of all information letters or private letter rulings.
The LPC voted to support the bill and testify in favor of continuing the practice. The bill will be heard in committee next week.

SB 16-115 Electronic Recording Technology Board
The bill creates the electronic recording technology board (board) in the department of state. The board, which is authorized to issue revenue bonds, is established as an enterprise. So long as it constitutes an enterprise, the board is not subject to any provisions of section 20 of article X of the state constitution. The board sunsets in 6 years, but prior to that sunset, it is subject to a sunset review. The board is authorized to impose a surcharge of up to $2 on all documents that a clerk and recorder receives for recording or filing. If imposed, counties are required to collect the surcharge on behalf of the board and transmit it to the state treasurer for deposit in the newly created electronic recording technology fund (fund). The board is required to: develop a strategic plan incorporating the core goals of security, accuracy, sequencing, online public access, standardization, and preservation of public records; determine functionality standards for an electronic filing system that support the core goals; issue a request for proposal for electronic filing system equipment and software that will be available to counties on an optional basis; develop best practices for an electronic filing system; provide training to clerks and recorders related to electronic filing systems; and make grants to counties to establish, maintain, improve, or replace electronic filing systems for documents that are recorded with a clerk and recorder. In awarding grants, the board is required to give priority for grants to counties that do not have sufficient revenue from the surcharge proceeds to maintain their existing electronic filing systems. The money in the fund is continuously appropriated to the board to be used for these purposes. The bill repeals the secretary of state’s powers to ensure uniformity related to electronic filing systems, which powers become the board’s responsibility, and requires the department of state to prepare an annual report that is published online about the grants that the board made in the prior fiscal year. The bill also extends the one-dollar surcharge that a county clerk and recorder is currently required to collect and use for the county’s core or electronic filing system for 9.5 years. The definition of “electronic filing system” is expanded to include elements of the “core filing system,” which term is repealed.
The LPC voted on the recommendation of the Real Estate Section, which has been involved with the creation and drafting of the bill, to support the bill and testify in favor of its passage in committee.

SB 16-043 Student Loans Consumer Protections
The bill prohibits a private educational lender, as defined in the bill, from offering gifts to a covered educational institution, as defined in the bill, including public and private institutions of higher education, in exchange for any advantage or consideration related to loan activities or from engaging in revenue sharing. Further, the bill prohibits persons employed at covered educational institutions from receiving anything of  value from private educational lenders. The bill makes it unlawful for a private educational lender to impose a fee or penalty on a borrower for early repayment or prepayment of a private education loan and requires a lender to disclose any agreements made with a card issuer or creditor for purposes of marketing a credit card. The bill requires private educational lenders to disclose information to a potential borrower or borrower both at the time of application for a private education loan and at the time of consummation of the loan. The required disclosures are described in the bill and include, among other disclosures, the interest rate for the loan and adjustments to the rate, potential finance charges and penalties, payment options, an estimate of the total amount for repayment at the interest rate, the possibility of qualifying for federal loans, the terms and conditions of the loan, and that the borrower may cancel the loan, without penalty, within 3 business days after the date on which the loan is consummated.
The LPC voted to support this bill and to authorize the Juvenile Law section to testify in its favor in committee. This bill would help graduating lawyers, and future graduates, with the debt burden of school.

SB 16-084 Uniform Substitute Health Care Decision-making Documents
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Recognition of Substitute Health Care Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute health care decision-making document (document) is valid in this state. A person may assume in good faith that a document is genuine, valid, and still in effect and that the decision-maker’s authority is genuine, valid, and still in effect. A person who is asked to accept a document shall do so within a reasonable amount of time. The person may not require an additional or different form of document for authority granted in the document presented. A person who refuses to accept a document is subject to a court order mandating acceptance of the document and liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document. A person is not required to accept a document under certain described conditions.
The LPC voted to remain neutral on the bill, while authorizing the Health Law section to testify as to the specific concerns it raised in the context of medical practices.

SB 16-047 No Detention For Juveniles Who Are Truant
The bill prohibits a juvenile detention facility from receiving or providing care for a juvenile who violates a court order to attend school unless the juvenile is also adjudicated for a delinquent act and remains under the jurisdiction of the juvenile court for committing the delinquent act.
The LPC is concerned that the bill, by precluding a court from enforcing its own orders, is likely unconstitutional, and does not allow the judicial branch to complete the requirements and reports that were created by SB 15-184.

SB 16-103 Canadian Domestic Violence Protection Order Enforcement
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Recognition and Enforcement of Canadian Domestic Violence Protection Orders Act” as recommended by the national conference of commissioners on uniform state laws. The bill allows a peace officer to enforce a Canadian domestic violence protection order. The bill allows a court to enter an order enforcing or refusing to enforce a Canadian domestic violence protection order. The bill provides immunity for a person who enforces a Canadian domestic violence protection order.
The LPC voted to support this bill on the recommendation of the Family Law section.

Updates regarding bills the CBA is currently focused on:

HB 16-1145 Documentary Fee For Residential Real Property
The CBA was able to propose an amendment to the bill that moved us to “neutral” on this bill. It will be heard in committee this week.

SB 16-013 Clean-up Office Of The Child Protection Ombudsman
This sponsor has agreed to remove the language that the CBA was concerned about. With this amendment, the CBA can officially monitor the bill going forward.

SB 16-071 Revised Uniform Athlete Agents Act 2015
The LPC asked that this bill be reviewed for comment by the Lawyers Professional Liability Committee. Once that review is complete, the LPC will revisit the act.

SB 16-088 Revised Uniform Fiduciary Access To Digital Asset Act
The CBA voted to support the bill as written and is monitoring the bill for any additional amendments that may impact it.

New Bills of Interest

These are a few new bills recently introduced. They have been sent to CBA sections for review and comment. If you have any questions about these or any other bills, please drop me a line. I’m happy to help you however I can.

SB 16-120 Review By Medicaid Client For Billing Fraud
The bill requires the department of health care policy and financing (department), by a certain date, to develop and implement an explanation of benefits for medicaid recipients. The purpose of the explanation of benefits is to inform a medicaid client of a claim for reimbursement made for services provided to the client or on his or her behalf, so that the client may discover and report administrative or provider errors or fraudulent claims for reimbursement. The bill specifies certain information that must be included in the explanation of benefits. Specifically, the explanation of benefits must include information regarding at least one method for a medicaid client to report errors in the explanation of benefits. The department shall work with medicaid clients and medicaid advocates to develop an explanation of benefits and educational materials that are understandable to medicaid clients. The explanation of benefits must be sent to clients not less than bimonthly, and the department shall determine the most cost-effective means for producing and distributing the explanation of benefits, which means may include e-mail or distribution with existing communications to clients.

HB 16-1258 Court Clerks Posting Of Service
Under current law, if a respondent in a domestic relations action cannot be personally served and is served by publication, the clerk of the court is required to post a copy of the process on a bulletin board in his or her office for 35 days after the date of publication. The bill gives the clerk the option of posting the service online on the court’s website rather than on a bulletin board.

HB 16-1261 Retail Marijuana Sunset
Sunset Process—House Finance Committee. The bill implements the following recommendations from the sunset report for the retail marijuana program: extending the retail marijuana code until September 1, 2019; stating that regulation of labeling, packaging, and testing is a matter of statewide concern; and repealing the following provisions from the retail marijuana code: the requirement that a licensee post a surety bond as condition of licensure; the requirement that the executive director deny a license based on a previous denial at the same location; the proscription on the placement and sale of marijuana-themed magazines; and the authority to promulgate rules prohibiting misrepresentation and unfair practices. The bill creates two new retail marijuana licenses, a retail marijuana transport license and a retail marijuana operator license, and gives the state licensing authority rulemaking authority over those licenses. The bill conforms language in the retail marijuana code to language in the medical marijuana code related to mandatory testing, the confidentiality of licensee information, and limited access areas.

Colorado Court of Appeals: Trial Court Within Discretion to Terminate Parental Rights After Developing Treatment Plan

The Colorado Court of Appeals issued its opinion in People in Interest of Z.P.S. on Thursday, February 11, 2016.

A.M.H.’s one-month-old infant, O.S., was found unresponsive and flown to Children’s Hospital, suffering from malnutrition. O.S.’s twin, M.J.S., was admitted at the same time as O.S., and was also suffering malnutrition and failure to thrive. The Phillips County Department of Social Services filed a dependency and neglect petition and assumed temporary custody of the twins and their siblings, three-year-old Z.P.S. and one-year-old N.S. Later, O.S., who had suffered brain damage from malnutrition, died after she was removed from life support.

Mother and father filed written stipulations that the children lacked proper parental care through their actions or omissions. Based on the stipulation, the court entered an order adjudicating the children dependent and neglected. One week later, the court held a dispositional hearing and entered a treatment plan for mother, which was later amended. At a later permanency hearing, the Department asked the court to terminate Mother’s parental rights based on a finding that no appropriate treatment plan could be devised. The court held a contested dispositional hearing at which it found that no appropriate treatment plan could be devised, and it terminated Mother’s parental rights. It allowed Father to relinquish his parental rights to children at the same hearing. Following a termination hearing, the court found by clear and convincing evidence that no appropriate treatment plan could be crafted for Mother because she had an emotional illness that was likely to render her unable to care for the children, M.J.S. had suffered serious bodily injury, and O.S. had died due to parental abuse and neglect.

On appeal, Mother challenged the trial court’s “no appropriate treatment plan” finding, arguing that (1) it was error for the court to find that no appropriate treatment plan could be devised after it had already approved one, and (2) the trial court erred by modifying the dispositional order by relying on information that was already before the court. The Colorado Court of Appeals evaluated whether the trial court had authority to enter a “no appropriate treatment plan” order after approving a treatment plan, and found that it did. The court of appeals noted that allowing the trial court to modify or enter new dispositional orders comports with the Colorado Children’s Code because it protects the best interests of the children. The court also held that the trial court was not required to modify the existing parenting plan before terminating parental rights.

The court of appeals similarly rejected Mother’s argument that the trial court erred in terminating her rights based on evidence that was before it at previous dispositional hearings. The court of appeals held that a trial court’s ability to modify a dispositional order is not limited to situations in which circumstances have changed. Mother also contended her due process rights were violated because the “no appropriate treatment plan” order precluded her from offering evidence of her compliance with the existing treatment plan. The court found no error, holding that Mother was on notice that the Department sought to terminate her parental rights and she was afforded ample opportunity to defend against termination.

The court of appeals affirmed the trial court.

e-Legislative Report: 2/3/2016

Editor’s Note: Yesterday, we erroneously published an e-Legislative Report from 2015. The current e-Legislative Report is below. We apologize for the confusion.

e-Legislative Report

Hello loyal e-leg report readers, here is this week’s installment of the world under the Gold Dome; as always, we welcome your feedback, thoughts, comments and questions.  This news report is designed to keep you up to date on the activity of interest to the bar, and to lawyers across practice areas that are happening at the Capitol.

Things move pretty fast this time of year, and we’re off to a busy start – the legislature has released over 300 bills for consideration, committees are meeting and negotiations and amendments are happening hundreds of times a day.  The capitol is humming for sure!

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.  Members are welcome to attend the meetings – please RSVP if you are interested.

LPC Meeting held Friday, January 29, 2016

The following bills were discussed at the LPC last week.  Other bills of interest from that agenda are tracked and updated below.

SB 16-013 Concerning Statutory Changes Related to the Office of the Child Protection

The bill addresses several items in the statutes relating to the office of the child protection ombudsman (office), including:

Clarifying that the child protection ombudsman board’s (board) duties are advisory only;  Shifting the responsibility for accountability in policies and procedures from the board to the office; Clarifying that the ombudsman cannot be subpoenaed by independent parties to testify in personal custody proceedings; and Removing the statutory requirement for an audit of the office by the office of the state auditor but leaving it at the discretion of the legislative audit committee to request such an audit at a future date.

The CBA – through the Legislative Policy Committee is seeking to amend this bill to restore the ability to subpoena the Ombudsman.  This is an important part of the process, and a vital step to access to data that might be otherwise unavailable.

HB 16-1085 Concerning Simplifying the Process for Returning to a Proper Name after Decree of Dissolution

Under current law, a party to a divorce or legal separation may request in the petition that his or her prior name be restored as part of the decree of dissolution or legal separation. This process to restore a prior name does not involve a background check or publication of the name. However, if the party does not change his or her name at the time the decree of dissolution or legal separation is entered, he or she must follow the procedures for a name change under civil law that include a fingerprint-based background check and publication of the name.

Subject to certain conditions, the bill permits a party to a dissolution or legal separation action to request the restoration of his or her prior full name by filing a motion in the court that granted the divorce or legal separation. The ex-parte motion does not require notice to the other party to the divorce or legal separation. The bill includes the requirements for filing the motion and the conditions under which the court must grant the motion.
The bill also clarifies that the provisions of the adult name change statute do not apply to a party to a dissolution or legal separation action who requests restoration of a prior name pursuant to the new statute.

The CBA supports this legislation. We are working with the sponsor with respect to an amendment that would require notice be given to the other party in the dissolution.

Bills that the LPC is monitoring, watching or working on can be found at this link:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

@ the Capitol – These are the bills we are focused on:

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death

On and after the effective date of the bill, the department of revenue (department) shall make available a beneficiary designation form (form) that allows the owner or joint owners of a vehicle to arrange to transfer ownership of the vehicle to a named beneficiary upon the death of the owner or upon the death of all joint owners of the vehicle. Upon the death of the owner or of the last surviving joint owner, the beneficiary may present the form to the department and request a new title of ownership of the vehicle in the beneficiary’s name. The request must be accompanied by: Proof of the death of the vehicle’s owner or proof of the death of the last surviving joint owner of the vehicle; and the statutory fee for an application for a certificate of title.

Upon the presentation of a properly executed and notarized form and the accompanying documents and fee, the department, subject to any security interest, shall issue a new certificate of title to the beneficiary.

The transfer of ownership of a vehicle via a form is not considered testamentary and is not subject to the provisions of the “Colorado Probate Code”.
The CBA is working with the sponsor and other attorneys to ensure that the intent of the bill is harmonized with existing laws, and that it will work well once enacted into law.

HB 16-1077 Recreate Statutory Revisions Committee

The statutory revision committee created in 1977 and repealed in 1985, was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. The bill recreates the committee.  The recreated committee is comprised of 8 members, with the majority and minority party leaders of each chamber of the general assembly appointing 2 members of those bodies. The committee is staffed by the office of legislative legal services, and is charged with: Making an ongoing examination of the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms; Receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and anachronisms in the law; Recommending legislation, from time to time, to effect such changes in the law as it deems necessary in order to modify or eliminate antiquated, redundant, or contradictory laws; and Reporting its findings and recommendations from time to time to the committee on legal services and annually to the general assembly.

The CBA is working with the Sponsors to offer amendments to shape the scope and membership of this committee.  We believe that the members and expertise of the Bar Association can provide value to the committee upon enactment, and into the future, should the bill pass.

HB 16-1145 Documentary Fee For Residential Real Property

Currently, a person filing a real property conveyance document with a county clerk and recorder must pay a documentary fee if the consideration for the conveyance is more than $500. The amount of the fee is based on the consideration paid, which is the total sales price to the purchaser, unless there is evidence of a separate consideration paid for personal property.

For purposes of the documentary fee, the bill changes the determination of the consideration paid for the grant or conveyance of residential real property as follows: Eliminates any reduction for a separate consideration paid for personal property from the total sales price; Generally requires the consideration amount listed on the grant or conveyance document to be used to determine the documentary fee; and If there is no consideration amount or the amount listed on the grant or conveyance document is $500 or less, and there is a related declaration filed, then the total sales price listed on the declaration is used to determine the documentary fee.  The bill also specifies that, unless indicated as commercial or industrial real property at the time of recording, a grant or conveyance is deemed to be of residential real property for the purpose of determining the documentary fee.

The CBA has significant concerns about this bill and the effects it will have upon real property transactions across the state.  We have been working with the stakeholders and sponsors to try and improve the bill, and to try and find a solution to the documentary fee challenges, but without harming other important aspects of property transactions.

SB 16-026 Personal Rights Of Protected Persons

A guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order.  A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors.  An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person’s right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person’s access to the protected person; Modify the guardian or conservator’s duties; or Remove the guardian or conservator.
A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person’s closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person’s residence for more than 7 days; Is admitted to a medical facility for acute care or
emergency care; or Dies.

The CBA supports the intent and purpose of this legislation.  We offered testimony that outlined our belief that this was a significant bill, outlined some concerns we had for how the bill might not work well with existing statute, and reaffirmed our commitment to continuing our work with the sponsor.

New Bills of Interest

These are a few of the new bills.  They have been sent to our Sections for review and comment.  If you have any questions about these – or any other bills at the legislature, please drop me a line and I’m happy to help you however I can.

HB 16-1115 Prohibition of Sealing Municipal Domestic Violence Convictions

Under current law, conviction records related to municipal offenses are eligible for record sealing. The bill prohibits sealing a municipal assault or battery conviction or any other municipal conviction, if the conviction involves the underlying factual basis of domestic violence.

HB 16-1117 Electronic Recording for Certain Custodial Interrogation

The bill requires all law enforcement agencies to have audio-visual recording equipment available and policies and procedures in place for preserving custodial interrogations by January 1, 2017. A peace officer must record custodial interrogations occurring in a permanent detention facility if the peace officer is investigating a class 1 or 2 felony or a felony sexual assault. A peace officer does not have to record the interrogation if: the defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing; The recording equipment fails; The recording equipment is unavailable, either through damage or extraordinary circumstances; Exigent circumstances related to public safety prevent recording; or The interrogation takes place outside of Colorado.

The court may admit evidence from a custodial interrogation that is not recorded. When offering evidence from an unrecorded interrogation, if the prosecution shows by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, the court shall issue a cautionary instruction to the jury after admitting the evidence.

HB 16-1154 Employer Definition Clarify Franchisee Status

The bill clarifies that the definition of “employer” only includes a person that possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

Comment Period Open for Proposed Changes to Colorado Appellate Rules

The Colorado Supreme Court is soliciting comments regarding proposed changes to the Colorado Appellate Rules. The changes affect Rule 3.4, “Appeals from Proceedings in Dependency and Neglect,” and the corresponding forms, JDF 545 through 549. The proposed changes to Rule 3.4 include minor changes, such as changing the word “record” to “transcript” in some places, and major changes, including the court’s continued jurisdiction over the case, composition of the record on appeal, inclusion of information about the Indian Child Welfare Act, and more. A redline of the proposed changes is available here.

Comments regarding the proposed changes may be submitted in writing to Christopher Ryan, Clerk of the Colorado Supreme Court, via email or via U.S. mail to 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 6, 2016. Comments will be posted on the State Judicial website after the comment period has closed.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.