July 22, 2019

e-Legislative Report: Week of April 11, 2016

legislationWelcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

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

Here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1211 – Marijuana Transporter License

The bill creates a retail marijuana transporter license and a medical marijuana transporter license. The license is valid for five years. A licensed marijuana transporter (transporter) provides logistics, distribution, and storage of marijuana and marijuana products. A transporter may contract with multiple businesses and may also hold another marijuana license. A transporter must be licensed by December 31, 2017, in order to continue to operate. The bill describes the circumstances under which a business can terminate a contract with a transporter.

The Bar’s Cannabis Law Committee is currently monitoring and preparing comments on this bill. The bill is working through its first chamber and has been greatly amended from its original form. The Legislative Policy Committee has not taken action on this bill.

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.”

This bill was postponed indefinitely (killed) in the House State, Veterans and Military Affairs Committee. The Colorado Bar Association had many concerns with the cost and operation of the bill.

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.

This bill, part of a four bill package of business entities clean up acts, was supported by the Bar and has passed the House and Senate and is on its way to be signed by the Governor.

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 their tax system operations, 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 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;
  • To use the resulting tax revenue to help fund elementary and secondary public school education; and
  • To 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).

The Tax Law section of the CBA voted to oppose this bill, which was postponed indefinitely (killed) by the Senate State Affairs Committee. The Bar had concerns over the cost of vague language in the bill as well as the impact on the courts and judicial system.

HB 16-1310 – Operators Liable For Oil And Gas Operations

Under current law governing relations between surface owners and oil and gas operators, to prevail on a claim the surface owner must present evidence that the operator’s use of the surface materially interfered with the surface owner’s use of the surface of the land. The bill amends this requirement to allow proof that the operator’s oil and gas operations harmed the surface owner’s use of the surface of the land, caused bodily injury to the surface owner or any person residing on the property of the surface owner, or damaged the surface owner’s property.

The Legislative Policy Committee voted to oppose this bill because it upends the burden of proof responsibility. The bill has passed the House and is moving on to the Senate, where it will be heard by the Agriculture Committee.

HB 16-1331 – Policies On Juvenile Shackling In Court

The bill requires restraints on a juvenile to be removed prior to any court proceeding, except when the court determines the restraints are necessary:

  • To prevent physical harm to the juvenile or another person;
  • To prevent disruptive courtroom behavior by the juvenile, evidenced by a history of behavior that created potentially harmful situations or presented substantial risk of physical harm; or
  • To prevent the juvenile from fleeing the courtroom, when there is evidence of an escape history or other relevant factors.

The prosecution, sheriff, or any other detention or pretrial personnel may request that an individual juvenile be restrained in the courtroom. The court shall provide the juvenile’s attorney an opportunity to be heard before the court allows the use of restraints on a juvenile. The court may conduct a hearing on the use of restraints without the juvenile being present.

The CBA supports this bill as good policy and an extension of the efforts the courts have made this past year. While the courts need discretion, we believe this bill strikes the right balance for outlining the policies on how and when juveniles should be subject to shackling.

HB 16-1346 – Open Records Subject To Inspection Denial

The bill allows a custodian to deny access to confidential personal information records and employee personal e-mail addresses. The provisions of the Colorado Open Records Act (CORA) that relate to civil or administrative investigations and trade secrets and other privileged and confidential information apply to the judicial branch.

The Bar Association opposed this bill because of constitutional and separation of powers concerns regarding the relationship between the judicial and legislative branches of government. In addition, we believe that the PAIRR rules issued by the Chief Justice, which closely mirror the text of CORA, are better suited to meet the information needs of requesters while maintaining the integrity of judicial records.

HB 16-1394 -Aligning Issues Around At-risk Persons

The bill implements the following recommendations of the at-risk adults with intellectual and developmental disabilities mandatory reporting implementation task force:

  • Standardizing statutory definitions among the Colorado Criminal Code, adult protective services in the department of human services, and the office of community living in the department of health care policy and financing;
  • Specifying that enhanced penalties for crimes against an at-risk person apply to all persons 70 years of age or older and to all persons with a disability; and
  • Clarifying and expanding the definitions of persons who are required to report instances of mistreatment of at-risk elders or at-risk adults with an intellectual and developmental disability (adults with IDD).

The bill also:

  • Reduces the time in which a law enforcement agency or county department is required to prepare a written report from 48 hours to 24 hours;
  • Specifies that a county department of human or social services is to conduct an investigation of allegations of mistreatment of an at-risk adult; and
  • Clarifies that the human rights committee is responsible for ensuring that an investigation of mistreatment of an adult with IDD occurred.

The Colorado Bar Association opposed the bill as written, but is working with stakeholders to review amendments from other stakeholder groups. We are working with and talking with the sponsors frequently.

SB 16-130 – Methods To Collect Consumer Use Tax

Consumer use tax is the complement to sales tax and is due on the purchases of goods where the retailer did not charge sales tax. For example, any time consumers make an Internet purchase and the out-of-state retailer does not charge sales tax, the purchaser should pay the equivalent amount of sales tax as consumer use tax directly to the Colorado Department of Revenue (department). The department has added a use tax line to the 2015 individual income tax return form in an effort to make self-reporting of use tax more convenient for consumers.

The bill specifies that after the 2015 income tax year the department is not allowed to add use tax reporting lines to the individual income tax return form for any reason. The bill also prohibits the department from auditing any taxpayer for any amount he or she reported on the use tax lines included in the 2015 individual income tax return form.

The CBA is monitoring this bill and has sought permission to make changes to the bill to ensure that collecting use taxes is efficient.

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 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.

This bill rearranges the existing responsibilities for fiduciaries managing assets. It is a cleanup and reorganization of these statutes and adds the right to legal counsel for wards and protected persons. The bill is scheduled for committee later this week.

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 has 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 amends provisions concerning determination-of-heirship proceedings, as follows:

  • 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.
This bill, the second part of the Colorado Bar Association’s probate reorganization bills, has passed the legislature and will be sent to the Governor shortly.

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

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.

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.

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.

e-Legislative Report: April 22, 2015

legislationCBA Legislative Policy Committee

For readers 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 on requests from the various sections and committees of the Bar Association.

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

HB 15-1327—Limit Proxy Marriages To Military & Contractors
Sponsors: Rep. Ginal (D), Rep. Roupe (R) & Sen. Cooke (R), Sen. Garcia (D)
The LPC reviewed this legislation (which had passed through its first committee hearing on Thursday, April 16). The consensus of Bar members and sections weighing in was that this bill was an important tool to fight trafficking and to restrain the statute to its original intent (marriage to military personnel and related contactors). The Bar will work with the sponsors to secure passage as the bill moves forward.

HB 15-1359—Savings Program For Persons With Disabilities
Sponsors: Rep. Danielson (D), Rep. Landgraf (R) & Sen. Kefalas (D), Sen. Martinez Humenik (R)
The LPC voted to support this legislation at the request and analysis of the Elder Law Section. The bill authorizes the Department of Higher Education to set up a 529 like savings program for individuals with disabilities—and parallels work that the section was already doing. This bill is supported by the department, and has a favorable path at this point in the session.

Bills that the LPC is monitoring, watching or working on can be found at this link on Priority Bill Track.

At the Capitol—Week of April 10

HB 15-1218—No Contact With Defense-initiated Victim Outreach 
We reached out to the sponsors to communicate that the CBA supported the American Bar Association’s position on this (and similar bills in other states) Bill was amended and made better. No LPC action needed.

HB 15-1285—Law Enforcement Use Of Body-worn Cameras 

HB 15-1286—Police Misconduct Court Require Prosecution

HB 15-1290—Stop Police Interference Cop Incident Recording
The CBA supports these three bills and they are moving forward in the legislative process. The LPC discussed and reviewed the “police package” of legislation, ultimately taking a position in support of these bills as aligned with the advancement of the practice of law.

SB 15-129—Preserving Parent-Child relationships 
This bill was heard in committee on April 16. The bar, through its Family Law section and the LPC was opposed to the bill insofar as it turned the long standing “best interest of the child standard” on its head—substituting the rights of divorcing parents as the preeminent consideration in awarding parenting time. There wasa great deal of testimony (26 opponents and 17 proponents), and after 7 hours of testimony it was PI’d 9 to 4. The Bar was a key opponent and our testimony was very persuasive.

SB 15-181—Immediate Appeal Order Appointing Receiver
This bill has been calendared in the House. We continue to work to oppose the bill notwithstanding the many amendments that have carved out various constituencies and interests. The position of the Bar is that this is not well crafted legislation—and the wrong approach to addressing a legitimate problem.

New Bill of Interest

There are several new bills introduced each week of the session (even with only two weeks left). This is one that each lawyer will want to be aware of:

HB 15-1371—Exempt Lawyer Trust Acct Funds From Unclaimed Prop
Sponsors: Rep. Pabon (D), Rep. Willett (R) & Sen. Johnston

The bill creates an exemption from the “Unclaimed Property Act” for funds held in Colorado lawyer trust account foundation trust accounts, commonly known as lawyer COLTAF trust accounts.

e-Legislative Report: March 24, 2015

legislationCBA Legislative Policy Committee

For readers 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 on requests from the various sections and committees of the Bar Association.

The following bill was discussed as the only action item taken up at the meeting on Friday, March 20. Other bills of interest from that agenda are tracked and updated below.

HB 15-1272—Timely Filed Claims Not Barred By Laches
Sponsors: Rep. Daneya Esgar (D) & Sen. Chris Holbert (R)
The LPC voted to oppose this bill because Laches is an important equitable defense. Colorado has a long history with the Doctrine of Laches and this bill upsets that balance. We understand the specific nature of the concern addressed in the bill, but the approach to a solution was overbroad. Therefore we voted to oppose HB 1272.

SB 15-069—Repeal Job Protection Civil Rights Enforcement Act
Sponsors: Sen. Laura Woods (R) & Rep. Kevin Priola (R)
The Legislative Policy Committee voted to oppose this bill to maintain a consistent position with the CBA’s position on previous legislation (HB13-1136 which the CBA supported). SB 69 would have reversed the effect of that bill.

HB 15-1292—Resentence Juveniles Life Sentence No Parole
Sponsors: Rep. Daniel Kagan (D)
The LPC voted to support the Juvenile Law Section’s recommendation to support this bill. There was a great deal of discussion. The bill allows for Juveniles who were previously convicted to petition for resentencing. The bill takes into consideration many factors for both victims and offenders.

Bills that the LPC is monitoring, watching or working on can be found at this link on Priority Bill Track.

At the Capitol—Week of March 16

This past week was a slower week for Bar priority bills. A number of bills we are watching and working on have not been scheduled for hearings or debate. We are constantly watching to ensure we are represented and up to date on bills the LPC has taken action on, and expect that this section will be more full after the “Long bill” (the state budget) is passed over the next two weeks.

HB 15-1142—Public Trustee Conduct Electronic Foreclosure Sale
We successfully amended this bill per the Real Estate Sections requirements, working in conjunction with the Denver Public Trustee and Representative McCann.

SB 15-077—Parents Bill of Rights
This bill was Postponed Indefinitely by the House Committee on Public Health Care and Human Services.

New Bills of Interest

The pace of new bill introductions is now slowing down, but there are a few new bills introduced still introduced through the remainder of the session. We will highlight some of the bills we have identified for tracking or monitoring here:

SB 15-200—Private Student Loan Disclosure Requirements
Sponsors: Sen. Andrew Kerr (D) & Sen. Nancy Todd (D)

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 three business days after the date on which the loan is consummated.

SB 15-210—Title Insurance Commission
Sponsors: Sen. Laura Woods (R) & Rep. Jennifer Arndt (D)

The bill creates the title insurance commission (commission). The bill establishes the powers, duties, and functions of the commission and provides for the appointment of the members of the commission. With the exception of rate regulation and licensing, which will continue to be done by the insurance commissioner, the commission participates in the regulation of the title insurance business in Colorado by concurring in rules of the insurance commissioner, proposing rules for approval by the insurance commissioner, and reviewing and concurring in disciplinary actions related to the regulation of the title insurance business. The commission is scheduled to sunset Sept. 1, 2025, subject to continuation after a sunset review as provided by law.

e-Legislative Report: March 11, 2015

legislationWelcome to the “halftime” report for the 2015 Session of the Colorado Legislature. There are 120 days in each legislative session and this past Saturday marked day 60 of the current year. I wanted to use this eLeg report as an opportunity to let you know where things stood with the bills that have been considered by the Legislative Policy Committee (LPC).

We welcome your feedback. We welcome your questions. Or just drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

HB 15-1011 – Restrict Revealing How Person Votes
Sponsor: Rep. Paul Rosenthal (D)
CBA Positon: Support
For elections conducted under the “Uniform Election Code of 1992”, current law, which applies to any person, makes disclosing how or for whom an elector has voted a misdemeanor. The bill narrows this provision to those persons who, in the course of performing any elections-related duty or function, obtain any knowledge as to how a person has voted. Additionally, both the “Uniform Election Code of 1992” and the “Municipal Election Code” prohibit a voter from showing to anyone else his or her ballot in such way as to reveal its contents. The bill repeals this provision.
Status: (01/28/2015) House Committee on State, Veterans, & Military Affairs: Postpone Indefinitely

HB 15-1022 – Juvenile Petty Offense Contracts
Sponsors: Sen. John Cooke (R), Sen. Patrick Steadman (D) & Rep. Elizabeth H. McCann (D)
CBA Position: Support
For a juvenile 10 years of age or older alleged to have committed a petty offense, the bill allows a peace officer to issue a petty ticket requiring the juvenile to appear before a law enforcement officer, an assessment officer, or a screening team (screening entity). If the screening entity finds certain conditions have been met, the screening entity shall offer a petty offense contract to the juvenile and his or her parent or legal guardian. If the juvenile satisfies the conditions of the contract, the prosecuting attorney shall not file charges with the court.
Status: (03/09/2015) Sent to Gov. John Hickenlooper

HB 15-1025 – Competency To Proceed Juvenile Justice System
Sponsors: Rep. Paul Rosenthal (D) & Sen. Linda Newell (D)
CBA Position: Support
Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems. The bill establishes a juvenile-specific definition of “incompetent to proceed” for juveniles involved in the juvenile justice system, as well as specific definitions for “developmental disability”, “intellectual disability”, “mental capacity”, and “mental disability” when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.
Status: (02/26/2015) House Committee on Judiciary: Postpone Indefinitely

HB 15-1034 – Add Judge In Twelfth Judicial District
Sponsors: Rep. Edward Vigil (D) & Sen. Larry Crowder (R)
CBA Position: Support
Effective July 1, 2015, the bill increases the number of district court judges in the twelfth judicial district from 3 to 4.
Status: (03/06/2015) Senate Third Reading Passed—No Amendments

HB 15-1041 – Protect Human Life at Conception
Sponsors: Rep. Stephen A. Humphrey (R)*, Rep. Kim Ransom (R) & Sen. Kevin Lundberg (R)
CBA Position: Oppose (if Necessary)
The bill prohibits abortion and makes a violation a class 3 felony. The following are exceptions to the prohibition: A licensed physician performs a medical procedure designed or intended to prevent the death of a pregnant mother, if the physician makes reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with conventional medical practice; and A licensed physician provides medical treatment to the mother that results in the accidental or unintentional injury or death to the unborn child. The pregnant mother upon whom an abortion is performed or attempted is not subject to a criminal penalty. The sale and use of contraception is not prohibited by the bill. A conviction related to the abortion prohibition constitutes unprofessional conduct for purposes of physician licensing.
Status: (02/26/2015) House Committee on Judiciary: Postpone Indefinitely

HB 15-1053 – Ages For Compulsory Education
Sponsor: Rep. Kim Ransom (R)
CBA Position: Oppose
Under current law, a child who is at least 6 years of age and under 17 years of age must attend school. The bill changes the ages of compulsory education to at least 7 years of age and under 16 years of age.
Status: (01/26/2015) House Committee on Education: Postpone Indefinitely

HB 15-1069 – Homestead Exemption Recorded Instrument Requirements
Sponsors: Rep. Su Ryden (D) & Sen. Chris Holbert (R)
CBA Position: Support
Colorado law requires that a document claiming a homestead exemption only include a legal description of the real property and not the name of the owner of the property. The indexing system for real property ownership in the land records of Colorado is based on the names of the grantor and grantee of real property. The bill adds a requirement that the name of the owner of real property be included in a recorded document claiming a homestead exemption.
Status: (03/09/2015) Sent to Gov. John Hickenlooper

HB 15-1071 – Surviving Entity Owns Attorney-client Privilege
Sponsors: Rep. Jon Keyser (R) & Sen. Owen Hill (R)
CBA Position: Support
Existing law specifies that when entities merge, all of the privileges of each of the merging entities vest as a matter of law in the surviving entity. The bill clarifies that the attorney-client privilege is among the privileges that vest in the surviving entity.
Status: (03/09/2015) Sent to Gov. John Hickenlooper

HB 15-1091 – Policies On Juvenile Shackling In Court
Sponsors: Rep. Susan Lontine (D) & Sen. Michael Merrifield (D)
CBA Position: Oppose
The bill requires each judicial district to develop and implement a policy regarding juvenile shackling by Dec. 31, 2015. The policy must be developed with input from the judicial department, law enforcement agencies, public defenders’ offices, and district attorneys’ offices and must consider research, legal precedent, and recognized best practices regarding shackling juveniles. The state court administrator shall report to the house and senate judiciary committees, or to any successor committees, by Jan. 31, 2016, regarding the policies developed by each judicial district.
Status: (02/25/2015) House Third Reading Passed—No Amendments

HB 15-1101 – Public Defender ADC Records Open Records
Sponsors: Rep. Rhonda Fields (D), Rep. Polly Lawrence (R)
CBA Position: Oppose
Current law exempts the judicial department from the Colorado open records act (act). The bill makes the records of the state public defender and office of alternate defense counsel in the judicial department subject to the act, except for records that are privileged attorney–client records.
Status: (02/12/2015) House Committee on Judiciary: Postpone Indefinitely

HB 15-1121 – Wind Energy Generation
Sponsors: Rep. Jon Becker (R) & Sen. Jerry Sonnenberg (R)
CBA Position: Support
Current law declares that the right to wind energy is a property right appurtenant to the surface estate and governs the creation of agreements between an owner of surface rights and a wind energy developer. The bill amends and adds relevant definitions, including the definition of a wind energy developer of record, which is the wind energy developer named in an agreement that is recorded in county land records. The bill also specifies that:

  • Like other agreements affecting the title to real property, until a wind energy agreement is recorded, it is not binding on anyone other than the parties and those with notice of the agreement.
  • Rights under a recorded wind energy agreement executed on or after July 1, 2012, expire after 15 years unless the agreement provides otherwise or unless wind-powered energy generation has occurred on the subject property.
  • Once a wind energy developer has determined to begin construction of generating facilities under a wind energy agreement, the developer may record an affidavit stating when construction will begin. If no affidavit is recorded, the developer’s rights will expire after 15 years unless the agreement provides otherwise.
  • A wind energy agreement, as well as any release due to the termination or expiration of rights under the agreement, must be recorded in both the grantor and grantee indices and under the names of all parties. If a recorded wind energy agreement expires or is terminated, the wind energy developer of record is required to record a release. If the developer fails to do so within a specified period, the developer and any transferee of the developer’s rights under the agreement are jointly and severally liable for any damages to the surface owner that result from the failure to record the release.

Status: (03/05/2015) Sent to Gov. John Hickenlooper

HB 15-1135 – Terminally Ill Individuals End-of-life Decisions
Sponsors: Rep. Lois Court (D), Rep. Joann Ginal (D) & Sen. Lucia Guzman (D)
CBA Position: No Position
The bill enacts the “Colorado Death with Dignity Act” (act), which authorizes an individual with a terminal illness to request, and the individual’s attending physician to prescribe to the individual for self-administration by ingestion, life-ending medication intended to hasten the individual’s death. The individual must: Be a Colorado resident; Be an adult who is able to make and communicate health care decisions; Have a terminal illness; and Voluntarily request life-ending medication to self-administer by ingestion. The act outlines the manner by which a terminally ill individual must request life-ending medication to self-administer by ingestion, which includes: A requirement to make the request orally on 2 separate occasions and by a written, signed, and witness-verified request; A waiting period between the oral requests, the written request, and the time the attending physician may write the prescription; and The individual’s right to rescind the request at any time and in any manner. Any person who participates in the life-ending process, including a physician who prescribes life-ending medication to an individual with a terminal illness, is protected from civil and criminal liability and professional disciplinary action if the physician or other person acts in good-faith compliance with the requirements of the act. The attending physician is required to: Determine that an individual is suffering from a terminal illness, is capable, is making the request voluntarily, and is a Colorado resident; Inform the individual of his or her medical diagnosis and prognosis, the potential risks and probable result of taking the medication, and feasible alternatives; Refer the individual to a consulting physician for medical confirmation of the diagnosis, prognosis, and a determination that the patient is capable and is acting voluntarily; Refer the individual for counseling, if appropriate; Inform the individual of his or her right to rescind the request for life-ending medication at any time; and Document in the individual’s medical record the procedures followed and related facts. The bill requires the physician to either dispense the medication directly to the patient or, with the patient’s consent, contact a pharmacist about the prescription and personally deliver, mail, or electronically transmit the prescription to the pharmacist, who can dispense the medication to the patient, the patient’s expressly identified agent, or the physician. A health care provider cannot discipline a physician, nurse, pharmacist, or other health care provider for actions taken in good-faith compliance with the act or for refusing to act; however, a provider that has a policy prohibiting other health care providers from participating under the act while on the provider’s premises and that notifies providers of that policy may sanction a provider who violates the policy. A person who is present when a terminally ill individual self-administers by ingestion life-ending medication is not subject to criminal or civil liability for failing to prevent the patient from self-administering the medication. Physicians, nurses, pharmacists, or other health care providers have no duty to participate in providing life-ending medication to a terminally ill individual. The bill specifies that life, health, or accident insurance or annuity policies cannot be affected by a terminally ill individual’s request for or ingestion of medication to end his or her life. The act does not authorize a health care provider to end an individual’s life by lethal injection, mercy killing, or active euthanasia and clarifies that a health care provider does not engage in those prohibited activities when he or she participates under the act to assist a terminally ill individual in obtaining life-ending medication. A person commits a class 2 felony if he or she: Without the permission of the terminally ill individual, willfully alters or forges a request for life-ending medication or conceals or destroys a rescission of the request; or Coerces or exerts undue influence on a terminally ill individual to request life-ending medication or to destroy a rescission of the request.
Status: (02/06/2015) House Committee on Public Health Care & Human Services: Postpone Indefinitely

HB 15-1142 – Public Trustee Conduct Electronic Foreclosure Sale
Sponsors: Rep. Beth McCann (D) & Sen. Lucia Guzman (D)
CBA Position: Support (if Amended)
The bill authorizes the public trustee of a county to conduct foreclosure sales through the internet or another electronic means, and allows for the collection of a specific fee for sales that are conducted electronically. The trustee shall publish information related to such sales electronically as well as through traditional means such as posting a physical document.
Status: (02/24/2015) House Committee on Business Affairs and Labor Refer Amended to Finance

HB 15-1161 – Public Accommodation First Amendment Rights
Sponsors: Rep. Gordon Klingenschmitt (R)
CBA Position: Oppose
The bill specifies that neither the civil rights division, the civil rights commission, nor a court with jurisdiction to hear civil actions brought under the public accommodations laws may compel involuntary speech or acts of involuntary artistic expression or involuntary religious expression by a person when such speech or acts of artistic or religious expression would lead to that person directly or indirectly participating in, directly or indirectly supporting, or endorsing or impliedly endorsing an ideology, ceremony, creed, behavior, or practice with which the person does not agree.
Status: (03/09/2015) House Committee on State, Veterans, & Military Affairs: Postpone Indefinitely

HB 15-1171 – State Freedom Of Conscience Protection Act
Sponsors: Rep. Stephen Humphrey (R), Rep. Patrick Neville (R) & Sen. Tim Neville (R)
CBA Position: Oppose
The bill: Specifies that no state action may burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to a person’s exercise of religion is essential to further a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest; Provides a claim or defense to a person whose exercise of religion is burdened by state action; and Specifies that nothing in the bill creates any rights by an employee against an employer unless the employer is a government employer.
Status: (03/09/2015) House Committee on State, Veterans, & Military Affairs: Postpone Indefinitely

HB 15-1174 – Information Protections Domestic Violence Victims
Sponsors: Rep. Terri Carver (R) & Sen. Laura Woods (R)
CBA Position: Amend
The bill extends the protections related to confidentiality of personal information on the internet that are currently in place for law enforcement officials and their immediate family to participants in the address confidentiality program for victims of domestic violence, sexual assault, or stalking (participants). The bill clarifies the term “actual address” to include any unique identifying information related to a participant’s residential, work, or school address. Private business entities are encouraged to accept a participant’s substitute address. Disclosure of unique identifying information of a participant in criminal and civil proceedings is limited to those circumstances where the potential harm to the participant is substantially outweighed by the public interest in the disclosure and when no other alternative would satisfy the necessity for disclosure.
Status: (03/06/2015) Senate Third Reading Passed—No Amendments

HB 15-1189 – Uniform Fiduciary Access to Digital Assets
Sponsors: Rep. Jonathan Keyser (R) & Sen. Patrick Steadman (D)
CBA Position: No Position
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Fiduciary Access to Digital Assets Act”, as amended, as Colorado law. The bill sets forth the conditions under which certain fiduciaries may access:

  • The content of an electronic communication of a principal or decedent;
  • A catalog of electronic communications sent or received by a decedent or principal; and
  • Any other digital asset in which a principal has a right or interest or in which a decedent had a right or interest at death. As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor may access the property and any digital asset stored in it and is an authorized user for purposes of computer fraud and unauthorized computer access laws. “Fiduciary” means a personal representative, a conservator, an agent, or a trustee. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good-faith compliance with the provisions of the bill.

Status: (02/19/2015) House Committee on Judiciary Witness Testimony and/or Committee Discussion Only

HB15-1216 Basis For Expert Opinion Testimony
Sponsors: Rep. Kevin Priola (R) & Sen. John Cooke (R)
CBA Position: Oppose
The bill prohibits a person from testifying concerning the person’s expert opinion unless certain conditions are met.
Status: (02/10/2015) Introduced In House—Assigned to Judiciary

HB 15-1246 – Crowdfund Intrastate Securities On-line
Sponsors: Rep. Pete Lee (D), Rep. Dan Pabon (D)*
CBA Position: Support
Current securities law restricts businesses’ ability to raise capital through crowdfunding, which is the raising of money on-line through small contributions from a large number of investors. The bill enacts the “Colorado Crowdfunding Act” to facilitate crowdfunding by authorizing on-line intermediaries to match a Colorado investor with a Colorado business that wishes to sell securities (an “issuer”) pursuant to a simplified regulatory regime, including the following:
During any 12-month period:

  • The aggregate amount sold to any single investor cannot exceed $5,000 unless the investor is an “accredited investor” as defined by the federal securities and exchange commission; and
  • The sum of all consideration paid for an issuer’s securities cannot exceed $1 million unless the issuer submits audited financial statements to the securities commissioner, in which case the cap is $2 million;

Issuers must:

  • Inform investors, in plain, nontechnical language, that the securities have not been registered pursuant to federal or state securities law and that the securities are subject to limitations on resale, and the investor must acknowledge the risks associated with the purchase; and
  • Provide a free quarterly report to investors that includes an analysis of the business operations and financial condition of the issuer and compensation to officers and directors, which report can simply be posted on the on-line intermediary’s web site;

On-line intermediaries cannot offer investment advice or handle investor funds or securities, and must:

  • Maintain records of securities transactions, which are subject to inspection by the division of securities; and Be compensated only by a fixed amount for each offering, a variable amount based on the length of time that the securities are offered by the on-line intermediary, or a combination of the fixed and variable amounts. Crowdfunding cannot begin until the securities commissioner adopts rules to implement the Act.

Status: (02/24/2015) Introduced In House—Assigned to Business Affairs and Labor

HB 15-1253 – Uniform Voidable Transactions Act
Sponsors: Rep. Pete Lee (D)
CBA Position: Oppose
Uniform Law Commission approved a set of amendments to the “Uniform Fraudulent Transfer Act” (act). The amendments changed the title of the act to the “Uniform Voidable Transactions Act”. The amendment project was instituted to address a small number of narrowly defined issues and was not a comprehensive revision. The principal features of the amendments are:
Choice of law. The amendments add a new provision that sets forth a choice of law rule applicable to claims for relief of the nature governed by the act.
Evidentiary matters. New provisions add uniform rules allocating the burden of proof and defining the standard of proof with respect to claims for relief and defenses under the act.
Deletion of the special definition of “insolvency” for partnerships. The act as originally written set forth a special definition of “insolvency” applicable to partnerships. The amendments delete the original language, with the result that the general definition of insolvency now applies to partnerships. One reason for this change is that the original provision gave a partnership full credit for the net worth of each of its general partners. That makes sense only if each general partner is liable for all debts of the partnership, but such is not necessarily the case under modern partnership statutes. A more fundamental reason is that the general definition of insolvency does not credit a nonpartnership debtor with any part of the net worth of its guarantors. To the extent that a general partner is liable for the debts of the partnership, that liability is analogous to that of a guarantor. There is no good reason to define insolvency differently for a partnership debtor than for a nonpartnership debtor whose debts are guaranteed by contract. Defenses. The amendments refine in relatively minor respects several provisions relating to defenses available to a transferee or obligee, as follows:
As originally written, the act created a complete defense to an action for a fraudulent transfer (which renders voidable a transfer made or obligation incurred with actual intent to hinder, delay, or defraud any creditor of the debtor) if the transferee or obligee takes in good faith and for a reasonably equivalent value. The amendments add to the act the further requirement that the reasonably equivalent value must be given to the debtor.
The act created, in a provision derived from the federal “Bankruptcy Code”, a defense for a subsequent transferee (that is, a transferee other than the first transferee) that takes in good faith and for value, and for any subsequent good-faith transferee from a person. The amendments clarify the meaning of the defense by rewording it to follow more closely the wording of the federal “Bankruptcy Code”, which is substantially unchanged as of 2014. Among other things, the amendments make clear that the defense applies to recovery of or from the transferred property or its proceeds, by levy or otherwise, as well as to an action for a money judgment. The act as originally written created a defense to an action for a fraudulent transfer or to avoid a transfer if the transfer results from enforcement of a security interest in compliance with the secured transactions provisions of the “Uniform Commercial Code”. The amendments exclude from that defense acceptance of collateral in full or partial satisfaction of the obligation it secures (a remedy sometimes referred to as “strict foreclosure”). Series organizations. A new provision of the act provides that each “protected series” of a “series organization” is to be treated as a person for purposes of the act, even if it is not treated as a person for other purposes. This change responds to the emergence of the series organization as a significant form of business organization. Medium neutrality. In order to accommodate modern technology, the references in the act to a “writing” have been replaced with “record” and related changes made. Style. The amendments make a number of stylistic changes that are not intended to change the meaning of the act. For example, the amended act consistently uses the word “voidable” to denote a transfer or obligation for which the act provides a remedy. As originally written, the act sometimes inconsistently used the word “fraudulent”. No change in meaning is intended. Likewise, the retitling of the act is not intended to change its meaning.
Status: (03/02/2015) Introduced In House—Assigned to Business Affairs and Labor

SB 15-016 – Marriages By Individuals In Civil Union
Sponsors: Sen. Patrick Steadman (D)
CBA Position: Support
The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who will enter into a civil union after recent court decisions have declared same-sex marriage bans, such as section 31 of article II of the state constitution, unconstitutional. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same 2 parties. The executive director of the department of public health and environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between 2 individuals who are the same sex. The construction statute for the act is amended to clarify that it must not be construed to create a marriage, including a common law marriage, between the parties to a civil union. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in this state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act”. Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act”. If a civil union is merged into marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2015, to include a person who, while married, marries, enters into a civil union, or cohabits in this state with another person and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in this state with another person.
Status: (01/21/2015) Senate Committee on State, Veterans, & Military Affairs: Postpone Indefinitely

SB 15-031 – Reciprocity To Practice Occupation Or Profession
Sponsors: Sen. Owen Hill (R)*
CBA Position: Oppose
Current law allows a military spouse to practice an occupation or profession during the person’s first year of residence in Colorado if the person is authorized to practice in another state, there is no basis to disqualify the person from practice, and the person consents to the jurisdiction of the disciplinary authority of the appropriate agency. The bill expands this practice to all persons during their first year of residence in Colorado.
Status: (01/28/2015) Senate Committee on Business, Labor, & Technology: Postpone Indefinitely

SB 15-042 – Mandatory Reports Of Animal Abuse
Sponsors: Sen. Jerry Sonnenberg (R) & Rep. Jon Becker (R)
CBA Position: Oppose
The bill specifies persons who are required to report abandonment, mistreatment, or neglect of an animal to the owner or law enforcement. It creates a class 3 misdemeanor for such a person who: Fails to report abandonment, mistreatment, or neglect of an animal within 48 hours after seeing the incident; or Knowingly files a false report of abandonment, mistreatment, or neglect of an animal.
Status: (02/09/2015) Senate Committee on Judiciary: Postpone Indefinitely

SB 15-049 – Real Estate Title Vests Once the Entity is Formed
Sponsors: Sen. Beth Martinez Humenik (R) & Rep. Jonathan Keyser (R)
CBA Position: Support
Current law specifies that when a grantee of a deed is a corporation whose incorporation papers have not yet been filed, title to the real estate vests in the corporation once the papers are filed. The bill expands this law to apply to all entities, specifying that title vests once the entity is formed.
Status: (03/09/2015) House Third Reading Passed—No Amendments

SB 15-059 – Concerning the Use of Unmanned Aerial Vehicles in Limited Circumstances
Sponsors: Sen. Newell, Sen. Lundberg, Sen. Guzman, Sen. Lambert
CBA Position: Amend
The bill permits law enforcement to use an unmanned aerial vehicle (UAV) under the following circumstances:

  • When it receives a search warrant authorizing the use prior to the use;
  • When it is needed to prevent imminent harm to life or to forestall the imminent escape of a suspect or the destruction of evidence; and
  • When there is a high risk of a terrorist attack determined by the department of homeland security. A law enforcement agency must receive federal aviation administration authority prior to using a UAV, and the UAV may not exceed 25 pounds. The bill creates parameters for individual, recreational, civil, and industrial use of UAVs.

Status: (02/25/2015) Senate Committee on Judiciary Postpone Indefinitely

SB 15-060 – Preventing Multiple Voter Registrations
Sponsors: Sen. Chris Holbert (R) & Rep. Justin Everett (R)
CBA Position: Oppose
In an effort to eliminate multiple voter registrations by the same elector, the bill permits the secretary of state to forward any information obtained from the division of motor vehicles in the department of revenue to the appropriate county clerk and recorder who shall then update an elector’s voter registration record in the master list of registered electors.
Status: (02/10/2015) Introduced In House—Assigned to State, Veterans, & Military Affairs

SB 15-077 – Parents’ Bill of Rights
Sponsors: Sen. Tim Neville (R) & Rep. Patrick Neville (R)
CBA Position: Oppose
The bill establishes a parent’s bill of rights that sets forth specific parental rights related to education, health care, and mental health care of minor children.
Status: (02/17/2015) Introduced In House—Assigned to Public Health Care & Human Services

SB 15-087 – Foster Care & Kin Care Placement Background Checks
Sponsors: Sen Linda M. Newell (D) & Jonathan Singer (D)
CBA Position: Support (if Amended)
The bill reorganizes statutes regarding the regulation of foster care homes, kinship foster care homes, and noncertified kinship care to clarify the responsibilities for background checks between the state department of human services (state department) and county departments of human or social services (county departments) and licensed child placement agencies. The bill defines “kin”, “kinship foster care home”, “noncertified kinship care”, and “informal kinship care”. “Kin” is a relative or a person who has a family-like relationship or significant relationship with a child. A “kinship foster care home” is a foster care home certified by a county department or licensed child placement agency where the foster care is provided by kin and the kin is eligible for foster care reimbursement. “Noncertified kinship care” is where care of the child is provided by a relative or kin who has not met the foster care certification requirements for a kinship foster care home or has chosen not to pursue certification and the relative or kin is not eligible for foster care reimbursement but may apply for temporary aid to needy families. “Informal kinship care” is an arrangement made within the family or with friends to care for a child in cases that do not involve child welfare services or foster care. The bill revises the definition of “foster care” to clarify that it includes a kinship foster care home and does not include informal kinship care or noncertified kinship care. The bill revises the definition of “county department” to reflect that county departments are referred to as county departments of human or social services. The bill repeals the definition of salaried foster parent related to a pilot program repealed in 2009. A county department or child placement agency shall not certify or recertify a foster care home until a thorough background check is performed on the applicant or any person residing with the applicant to determine whether he or she has been convicted of certain specified crimes, is a registered sex offender in the state’s sex offender registry, has been identified as having been directly involved in a confirmed report of child abuse or neglect through a check of the automated TRAILS system, or has been determined by a court to be insane or mentally incompetent. While some of these requirements are in existing law, the bill consolidates the requirements into one place. The requirement to check the applicant and any person residing with the applicant against the state’s sex offender registry is a new requirement. The bill requires that the background checks be performed for any adult residing in the foster care home, not just those who reside in the home and are acting as a caregiver for the child. The bill requires that the county department or child placement agency perform and document that the following 5 types of background checks have been performed of the applicant or any adult residing in the foster care home prior to placing a child in a foster care home: A fingerprint-based criminal history record check with the CBI; A fingerprint-based criminal history record check with the FBI; A comparison check of the criminal history record on the ICON system at the state judicial department or any other source; A check that the individual is not a registered sex offender on the state’s sex offender registry; and A check through the TRAILS system that the individual has not been found to have been directly involved in a confirmed report of child abuse or neglect. The bill requires the county department to perform the same 5 types of background checks that are required for a certification for a foster care home prior to placing a child in a home with a relative or kin in noncertified kinship care. This requirement does not apply to informal kinship care, which does not involve child welfare services or foster care. The state board of human services (state board) shall adopt rules governing the background checks and documentation for foster care homes and for persons providing noncertified kinship care and concerning what the county department or child placement agency must do if the background checks expose a negative history. The rules must also specify sanctions that the state department may place upon a county department or child placement agency that fails to perform or document background checks for foster care homes or for persons providing noncertified kinship care. The bill locates the rule-making provisions relating to foster care homes in one place. The rules do not apply to informal kinship care. Under current law, when a child is taken into temporary custody by a local law enforcement agency and placed in an emergency placement with a relative, a county department may elect to collaborate with the local law enforcement agency to conduct an initial criminal history record check prior to placing the child in temporary custody followed by a requirement that the relative self-report to a local law enforcement agency within a certain number of days for a fingerprint-based criminal history record check. The bill amends this provision to mandate that the county department must request that the local law enforcement agency perform the initial criminal history record check prior to placing the child in temporary custody with the relative and perform a fingerprint-based criminal history record check to determine if the child may remain in that placement. The bill imposes a requirement upon the county department to confirm within 15 days that the relative has self-reported to a law enforcement agency to obtain a fingerprint-based criminal history record check and, if the relative is found to have committed certain crimes, the county department or law enforcement agency must remove the child from the relative’s care. The bill requires the county department to conduct other background checks of the relative and any person residing with the relative and to remove the child from the relative’s care if any negative history is found from those checks. The bill directs the court to inquire whether there is documentation that a foster care provider or family member who is seeking to care for a child and any person residing with the foster care provider or family member have had the required 5 types of background checks when a child is in out-of-home placement and the court is placing a child in the legal custody of a family member or, after termination of the parent-child legal relationship, when the court is placing the child in the legal custody of a county department for placement in a foster care home, or when a family member requests that a child be placed with the family member.
Status: (03/03/2015) Introduced In House—Assigned to Public Health Care & Human Services

SB 15-129 – Preserving Parent-child Relationships
Sponsor: Sen. Kevin Lundberg
CBA Position: Oppose
The bill amends provisions relating to best interests of a child in domestic relations actions and certain other actions in the juvenile code. With respect to such actions, the bill: Amends the legislative declaration to emphasize the fundamental liberty interest of both parents and children in maintaining the parent-child relationship; With respect to temporaryorders hearings, if there has been a temporary or permanent protection order entered against one or both parties either prior to or in conjunction with the domestic relations action, requires the court to grant an expedited hearing at the request of either party for purposes of modifying provisions in the protection order relating to parenting time, communication, and access to a child. The court shall order substantially equal parenting time and access to the child unless it finds that such orders are clearly not in the child’s best interest. The court shall also enter any orders necessary for the safety of the protected party relating to the restrained party’s parenting time with the child. Changes the nature of an investigation by a court-appointed child and family investigator (CFI) from evaluation and recommendations to investigation and fact-finding. CFIs will conduct an objective investigation of issues as specifically directed by the court and will provide written factual findings to the court that are supported by credible evidence. A CFI’s report will not make recommendations regarding the allocation of parental responsibilities but will provide the court with the factual findings the court deems necessary to make such determinations. Amends language in the legislative declaration regarding the allocation of parental rights and responsibilities relating to the best interests of the child. Also, the bill requires the court to allocate substantially equal parenting time unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall award mutual decision-making responsibilities with respect to the child unless the court finds that such an order is clearly not in the child’s best interest. For purposes of temporary orders in a domestic relations action, requires the court to award substantially equal parenting time to the parties unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall order mutual decision-making responsibilities unless mutual decision-making is clearly not in the child’s best interest. Changes the nature of an evaluation by a court-appointed parental responsibilities evaluator to an investigation by a mental health professional. The mental health investigation is limited to mental health diagnoses, assessments of relevant addictions, or other mental health-related issues that are relevant to the court’s allocation of parental responsibilities for the child. The investigator’s report shall contain findings of fact but shall not contain conclusions or recommendations relating to the allocation of parental rights and responsibilities. Clarifies that the 2-year restriction on filing motions that request a substantial change in parenting time and that also change the party with whom the child resides the majority of the time do not apply to moderate changes to parenting time when the existing parenting time order awarded substantially equal parenting time to the parties; and Amends the provisions relating to modification of decision-making responsibility for a child from requiring the court to retain the prior decision-maker unless certain criteria are met to permitting the court to change the decision-maker after considering certain criteria, including whether an award of mutual decision-making responsibilities is now in the child’s best interest.
Status: (02/11/2015) Senate Committee on Judiciary Refer Amended to Appropriations

SB 15-174 – Uniform Substitute Decision Making Documents Act
Sponsors: Sen. Patrick Steadman (D)
CBA Position: Oppose
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Substitute Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute decision-making document (document) executed outside this state 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 substitute 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 substitute document under certain described conditions.
Status: (02/24/2015) Senate Committee on Judiciary: Postpone Indefinitely

e-Legislative Report: February 17, 2015

legislationCBA 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.

Meeting held Friday, February 13

SB 15-129 — Preserving Parent-child Relationships
Sponsor: Senator Kevin Lundberg (R)
The LPC voted to oppose this bill in part because of the fundamental way that it changed the presumption of parenting time away from the “best interest of the child” to a different standard more focused on the parents in divorce proceedings. The bill was heard in committee on Wednesday the 11th and was passed on a party line vote after substantial amendments. SB-129 was referred to the Appropriations Committee for consideration of the bill’s fiscal impact.

SB 15-174 — Uniform Substitute Decision Making Documents Act
Sponsor: Senator Patrick Steadman (D)
The LPC voted to oppose this bill. The committee felt that the bill conflicts with existing statute, was unnecessary in many respects and that it potentially created more gaps and questions with existing law than its adoption would solve.

HB 15-1091 — Policies On Juvenile Shackling In Court
Sponsors: Representative Susan Lontine (D), Senator Michael G. Merrifield (D)
The LPC was concerned that while this bill was very well intentioned, it raised significant potential problems with separation of power between the legislative and judicial branches.

At the Capitol: Week of February 9

SB 15-049 — Real Estate Title Vests In Entity Once Formed
Sponsors: Senator Beth Martinez Humenik (R), Representative Jon Keyser (R)
This bill, supported by the Bar, passed through the Senate this past week. It has been assigned to the House Business Affairs and Labor Committee and has not yet been calendared for a hearing.

HB 15-1121 — Wind Energy Generation
Sponsors: Representative Jon Becker (R), Senator Jerry Sonnenberg (R)
The bill, supported by the Bar, also passed through its first chamber (the House) last week. It will next be heard in the Senate, where it has been assigned to the Agriculture, Natural Resources & Energy Committee. It will be heard by that committee on February 19.

SB 15-077 — Parents’ Bill of Rights
Sponsors: Senator Tim Neville (R), Representative Patrick Neville (R)
The bill passed out of the Senate committee hearing on a party line vote, and was debated on the floor. The bill was passed with amendments, and now moves to the House for consideration. It has not been calendared for consideration.

SB 15-042 — Mandatory Reports Of Animal Abuse
Sponsors: Senator Jerry Sonnenberg (R), Representative Jon Becker (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1101 — Public Defender ADC Records Open Records
Sponsors: Representatives Rhonda Fields (D), Polly Lawrence (R)
This bill was Postponed Indefinitely (killed) in committee. It will not be considered again this year. The CBA was opposed to the legislation.

HB 15-1174 — Information Protections Domestic Violence Victims
Sponsors: Representative Terri Carver (R), Senator Laura Woods (R)
The CBA has not taken a position on this bill—though we are working with the sponsors to ensure that the program will work as intended and not harm the real estate transaction process as a result of its adoption or implementation. It is likely that the CBA and its sections will participate in stakeholder groups and work sessions this summer.

New Bills of Interest

Senate

SB 15-177 — HOA Construction Defect Lawsuit Approval Timelines
Sponsors: Brian DelGrosso (R), Mark Scheffel (R), Jonathan Singer (D), Jessie M. Ulibarri (D)
The bill states that when the governing documents of a common interest community require mediation or arbitration of a construction defect claim and the requirement is later amended or removed, mediation or arbitration is still required for a construction defect claim. These provisions are in section 2 of the bill.

Section 2 also specifies that the mediation or arbitration must take place in the judicial district in which the community is located and that the arbitrator must:

  • Be a neutral third party;
  • Make certain disclosures before being selected; and
  • Be selected as specified in the common interest community’s governing documents or, if not so specified, in accordance with the uniform arbitration act.

Section 1 adds definitions of key terms. Section 3 requires that before a construction defect claim is filed on behalf of the association:

  • The parties must submit the matter to mediation before a neutral third party; and The board must give advance notice to all unit owners, together with a disclosure of the projected costs, duration, and financial impact of the construction defect claim, and must obtain the written consent of the owners of units to which at least a majority of the votes in the association are allocated.

Section 4 adds to the disclosures required prior to the purchase and sale of property in a common interest community a notice that the community’s governing documents may require binding arbitration of certain disputes.

House

HB 15-1025 — Competency To Proceed Juvenile Justice System
Sponsors: Representative Paul Rosenthal (D), Senator Linda M. Newell (D)
The bill establishes a juvenile-specific definition of “incompetent to proceed” for juveniles involved in the juvenile justice system, as well as specific definitions for “developmental disability”, “intellectual disability”, “mental capacity”, and “mental disability” when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency.

HB 15-1216 — Basis For Expert Opinion Testimony
Sponsors: Representative Kevin Priola (R), Senator John Cooke (R)
The bill prohibits a person from testifying concerning the person’s expert opinion unless certain conditions are met.

e-Legislative Report: February 10, 2015

legislationCBA 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.

Meeting held Friday, February 6
The following bills were discussed for action during last Friday’s LPC meeting.  Other bills of interest from that agenda are tracked and updated below.

SB 15-042 – Mandatory Reports Of Animal Abuse
(Senator Sonnenberg & Representative J. Becker)
The intent of the sponsors was to criminalize the recording of undercover videos showing animal cruelty in farming practices.  The Bar sections could not support the bill, or a subsequent “strike below”* amendment, because the language was overly broad, potentially unconstitutional and would lead to unintended consequences.  The LPC voted to oppose this bill at the recommendation of the Animal Law and Agricultural Law Sections.

HB 15-1101 – Public Defender ADC Records Open Records
(Representatives Field and Lawrence)
The LPC voted to oppose this bill as well.  The committee was concerned about the impact of Rule 1.6 and the financial impact of the bill to the State.  There was also concern that this bill would open the door for CORA requests of the Judicial Branch – and the potential impact that would have.  The LPC voted unanimously to oppose this bill.

HB 15-1037 – Freedom of Conscience Higher Ed
(Representative Priola & Senator Neville)
This bill was considered at the request of the Civil Rights Committee who presented that the bill was intended to “protect religious freedom and the right of association.”  After some discussion, the LPC voted to take no position on this bill.

At the Capitol: Week of February 2

HB 15-1135 – Terminally Ill Individuals End-of-life Decisions
(Representatives Court and Ginal & Senator Guzman)
HB 1135 was the big bill last week at the capitol.  Testimony began a little after 9:30am and concluded shortly before 10pm!  The emotional level of testimony was compelling.  There were approximately 120 people that signed up to testify for the bill ranging from all types of organizations and all walks of life. Many made passionate testimony on both sides of the bill which was a true indicator that our group made the correct policy decision to fix the issues and then maintain our neutrality. It is an issue that people either feel at a core level to support or they don’t.  The Committee voted to send the bill to the next committee Appropriations.  That motion failed 8-5.  There was a motion to Postpone the bill indefinitely, (passing 9-4) killing the bill for the remainder of the session.

Many Bar sections weighed in on the bill, its technical merits, and the drafting problems of the bill.  While individual sections had vigorous debates on the policy of “death with dignity” or physician assisted suicide, the LPC took no position on the bill itself.

SB 15-077 – Parents’ Bill of Rights
(Senator Neville & Representative Neville)
This Senate Bill sponsored by the father-son legislative team from Jefferson County was heard and passed out of the Senate committee last week.  The bill is set for its key second reading on Wednesday. Senate Bill 77, the so-called “Parents’ Bill of Rights” sponsored by Sen. Tim Neville and Rep. Patrick Neville, would give parents certain rights over the health care, education and mental health care of minor children.  The Bar Association voted to oppose this legislation at its LPC meeting on January 30.

SB 15-049 – Real Estate Title Vests In Entity Once Formed
(Senator Martinez Humenik & Representative Keyser)
This bill – supported by the bar – continues through the legislature on a straightforward course. It has now passed the Senate and will be heard in the Hose Business Affairs and Labor Committee, where Rep. Keyser will be the key sponsor.

HB 15-1121 – Wind Energy Generation
(Representative J. Becker & Senator Sonnenberg)
This Bar supported bill is also progressing through the legislative process.  Representative Becker has successfully completed the House process, and the bill passes to Senator Sonnenberg for the final leg of its legislative journey.

New Bills of Interest

Senate

SB 15-129 – Preserving Parent-child Relationships
(Senator Lundberg)
The bill amends provisions relating to best interests of a child in domestic relations actions and certain other actions in the juvenile code. With respect to such actions, the bill:

Amends the legislative declaration to emphasize the fundamental liberty interest of both parents and children in maintaining the parent-child relationship;

With respect to temporary orders hearings, if there has been a temporary or permanent protection order entered against one or both parties either prior to or in conjunction with the domestic relations action, requires the court to grant an expedited hearing at the request of either party for purposes of modifying provisions in the protection order relating to parenting time, communication, and access to a child. The court shall order substantially equal parenting time and access to the child unless it finds that such orders are clearly not in the child’s best interest. The court shall also enter any orders necessary for the safety of the protected party relating to the restrained party’s parenting time with the child.

Changes the nature of an investigation by a court-appointed child and family investigator (CFI) from evaluation and recommendations to investigation and fact-finding. CFIs will conduct an objective investigation of issues as specifically directed by the court and will provide written factual findings to the court that are supported by credible evidence. A CFI’s report will not make recommendations regarding the allocation of parental responsibilities but will provide the court with the factual findings the court deems necessary to make such determinations.

Amends language in the legislative declaration regarding the allocation of parental rights and responsibilities relating to the best interests of the child. Also, the bill requires the court to allocate substantially equal parenting time unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall award mutual decision-making responsibilities with respect to the child unless the court finds that such an order is clearly not in the child’s best interest.

For purposes of temporary orders in a domestic relations action, requires the court to award substantially equal parenting time to the parties unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall order mutual decision-making responsibilities unless mutual decision-making is clearly not in the child’s best interest.

Changes the nature of an evaluation by a court-appointed parental responsibilities evaluator to an investigation by a mental health professional. The mental health investigation is limited to mental health diagnoses, assessments of relevant addictions, or other mental health-related issues that are relevant to the court’s allocation of parental responsibilities for the child. The investigator’s report shall contain findings of fact but shall not contain conclusions or recommendations relating to the allocation of parental rights and responsibilities.

Clarifies that the 2-year restriction on filing motions that request a substantial change in parenting time and that also change the party with whom the child resides the majority of the time do not apply to moderate changes to parenting time when the existing parenting time order awarded substantially equal parenting time to the parties; and

Amends the provisions relating to modification of decision-making responsibility for a child from requiring the court to retain the prior decision-maker unless certain criteria are met to permitting the court to change the decision-maker after considering certain criteria, including whether an award of mutual decision-making responsibilities is now in the child’s best interest.

SB 15-174 – Uniform Substitute Decision Making Documents Act
(Senator Steadman)
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Substitute Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute decision-making document (document) executed outside this state 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 substitute 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 substitute document under certain described conditions.

House

HB 15-1043 – Felony Offense For Repeat DUI Offenders
(Senators Cooke and Johnson & Representatives McCann and Saine)
Under current law, a DUI, DUI per se, or DWAI is a misdemeanor offense. The bill makes such an offense a class 4 felony if the violation occurred: (1) After 3 or more prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof; or (2) not more than 7 years after the first of 2 prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof, if the violation included at least one of the following circumstances: One or more persons less than 18 years of age were present in the person’s vehicle at the time of the violation;  In committing the violation, the person caused damage or injury to any property or persons;  After committing the violation, the person fled the scene; or At the time of the violation, or within 2 hours after the violation, the person’s BAC was 0.15 or higher. Under current law, aggravated driving with a revoked license is a class 6 felony. The bill changes the penalty to a class 1 misdemeanor but requires a sentencing court to ensure that an offender spends a minimum of 60 days in the custody of a county jail. Under current law, a person whose privilege to drive was revoked for multiple convictions for any combination of a DUI, DUI per se, or DWAI must hold an interlock-restricted license for at least one year following reinstatement prior to being eligible to obtain any other driver’s license. The bill expands this period to a minimum of 2 years and a maximum of 5 years. The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. The bill makes conforming amendments.

HB 15-1161 – Public Accommodation First Amendment Rights
(Representative Klingenschmitt)
The bill specifies that neither the civil rights division, the civil rights commission, nor a court with jurisdiction to hear civil actions brought under the public accommodations laws may compel involuntary speech or acts of involuntary artistic expression or involuntary religious expression by a person when such speech or acts of artistic or religious expression would lead to that person directly or indirectly participating in, directly or indirectly supporting, or endorsing or impliedly endorsing an ideology, ceremony, creed, behavior, or practice with which the person does not agree.

HB 15-1189 – Uniform Fiduciary Access to Digital Assets Act
(Representative Keyser & Senator Steadman)
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Fiduciary Access to Digital Assets Act”, as amended, as Colorado law. The bill sets forth the conditions under which certain fiduciaries may access: The content of an electronic communication of a principal or decedent; A catalog of electronic communications sent or received by a decedent or principal; and  Any other digital asset in which a principal has a right or interest or in which a decedent had a right or interest at death. As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor may access the property and any digital asset stored in it and is an authorized user for purposes of computer fraud and unauthorized computer access laws.

“Fiduciary” means a personal representative, a conservator, an agent, or a trustee. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good-faith compliance with the provisions of the bill.

HB 15-1203 – Concerning earned time for certain offenders serving life sentences as habitual offenders
(Representative Rosenthal & Senator Steadman)
Under current law, an offender who was sentenced to a habitual offender 40-calendar-year life sentence before July 1, 1993, is not accruing earned time. The bill permits those sentenced under those circumstances to accrue earned time.

HB 15-1212 – Authority To Sell State Trust Lands To Local Gov
(Representative KC Becker & Senator Kerr)
In 2010, a law was enacted that allowed the state board of land commissioners (board) to convey land to units of local government if the conveyance would add value to adjoining or nearby state trust property, benefit board operations, or comply with local land use regulations. When enacted, the authority was set to repeal on July 1, 2015. The bill repeals that automatic repeal and makes the board’s authority permanent.

 

*a “Strike Below” amendment essentially replaces the entire bill below the title with an entirely different bill.  In practice this changes almost everything about the bill – but addresses the same topic, allowing for the sponsor to retain his/her bill and to continue working on the topic.  It is generally used when interested parties and stakeholders need a complete rewrite of the bill as originally introduced in ordrr to try and reach consensus.