August 20, 2018

Forging New Writing Conventions: Treat Active and Passive Voice Equally

Seemingly everyone loves critiquing passive voice. Haters have to hate.

The common advice to “avoid passive voice” is wrong. Actually, it’s worse than wrong. It’s a pyramid of wrongs. The advice, as a conclusion, is wrong. So are its premises. Most advice-givers misunderstand what passive voice is. And they misunderstand its advantages and disadvantages. Much of the time, people heard this advice before, never thoughtfully considered it, and repeat it without much thought. So it’s closer to being a rumor than it is to being good writing advice. Open your mind for the next five minutes and let’s fix this.

Even if you know nothing about passive voice, “avoid passive voice” facially makes little sense. It can only have two effects. Some listeners apply it wholesale without discretion, mechanically searching and destroying passive voice. For them, the advice strips away judgment and any notion passive voice could ever help. To other listeners the advice makes no sense. You don’t have to be an evolutionary linguist to know the passive voice must exist for a reason, and we use it when we speak without any problems. These listeners ignore the advice, never develop judgment, and never learn when passive voice helps and when it hurts. Both outcomes are unfortunate and avoidable.

The best advice is much more complicated. Fortunately, as lawyers we specialize in complicated.

What is Active Voice and Passive Voice?

If you are confident you know the difference between active and passive voice then you should be equally confident you are probably wrong. Let’s start with the easy part.

English has two voices: active and passive. In the active voice, the subject performs the verb’s action.[1] In the passive voice, the verb’s action is performed on the subject.[2] These definitions are more clear when you compare sentences written in each voice:[3]

 

Active Passive
The teacher told us to use the active voice. We were told to use the active voice.
The police questioned the suspect. The suspect was questioned.
I made a mistake. Mistakes were made.

 

Critically, the passive voice is not the use of particular verbs. Many people try to spot the passive voice by looking for variations of the verb “to be” like “was,” “were,” “is,” “would,” or “had been.” Wrong. This sentence uses active voice: “He was unhappy the provision of services had been so slow.”[4] Don’t feel bad. Everyone does it. Take this example from the New Yorker describing Bernie Madoff’s sentencing:

Two sentences later, Madoff said, “When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients from the scheme.” As he read this, he betrayed no sense of how absurd it was to use the passive voice in regard to his scheme, as if it were a spell of bad weather that had descended on him.[5]

Where precisely is the passive voice here? “It would end” and “I would be able to” are active voice.

The best way to find the passive voice is to track the definition above: when the verb does not modify the doer. If you want to be more specific, look for variations of “to be” “to get” or “to have” plus a past-tense verb (a past-participle to be precise). [6]

The Classic “Advantages” of the Active Voice

Card-carrying members of the active voice fan club praise it as more concise, concrete and not abstract, lively, and the default expectation of readers.[7] None of these are always true. As a simple example “The motion was denied”(passive) is four words when “The court denied the motion” (active) is five.

What is true is that the active voice is, by definition, clear about who the actor is. When that feature is important to you, use it.

Which is Better: Active or Passive?

Neither. Neither is superior or inferior to the other. There is no rule favoring one, with delineated exceptions permitting the other. There is no presumption or preference.

Passive voice and active voice are two options. They serve different purposes. Use whichever serves your purposes.

When to Use Passive Voice

“If you always avoid the passive, you sacrifice one of the subtlest, most versatile tools the English language affords us.”[8] Sometimes passive voice is helpful, like in these somewhat overlapping scenarios:[9]

The actor is obvious: [10]

“The motion was denied.” We know a court denied it. “Defendants are entitled to summary judgment when . . .” We know the law is what entitles a party to summary judgment under certain circumstances. No one is confused.

The actor is irrelevant or distracting:[11]

“The subpoena was served January 19th.” By who? Phil, Barbara, Subpoena Services Inc.? Does it matter? If what matters is when the subpoena was served then there is no need to introduce a new and irrelevant character to your story.

The actor is unknown:[12]

“Stonehenge was built around 2200 BCE.” Or, if your defense is that the crime occurred but the defendant did not do it, “The victim was murdered later that night.”

To emphasize the action over the actor/To tell the story of the recipient of actions:[13]

In a suppression motion you write “Mr. Smith was ordered to freeze and hand over identification, then his suitcase was searched, and then he was handcuffed.” Who did these things? Government actors. Which government actors? The defense does not care. Whether it was Officer Jones or Agent Smith is irrelevant. The defense neither needs nor wants the court to keep track of that. Passive voice keeps the focus on the defendant and things being done to him.

For the same reason a tort plaintiff’s story might read “Stevens was told it was safe by the defendant. Stevens was told it was legal by the defendant. Stevens was told he could trust the defendant. Stevens was lied to by the defendant.”[14]

This concept can be a bit tricky. But it is perhaps the most important voice decision an author makes. Passive voice emphasizes different actors in your story than active voice. George Gopen provides this helpful illustration:

Smith had notified Jones on the morning of April 7 concerning the lost shipment. (emphasizes Smith’s actions)

On the morning of April 7, Jones had been informed of the lost shipment by Smith. (emphasizes Jones’s knowledge)

The lost shipment had been disclosed by Smith to Jones on the morning of April 7. (emphasizes moment of lost shipment)[15]

This principle can also help when one subject is the recipient of multiple unrelated actions. “Securities agreements are sophisticated contracts. They are usually drafted by specialized attorneys. They are subject to particular regulations. They should only be signed after a careful read.” The passive voice keeps the focus on securities agreements.

To connect one sentence with the next sentence:[16]

“The committee presented the award to Tom. Tom was arrested the next day.”[17] In this couplet the direct object of the first sentence becomes the subject of the next.

To emphasize the end of a sentence.

“When he walked through the door, the victim was already dead.”[18]

To create abstraction:

“In the eyes of the law, all persons are created equal.”[19]

For irony:

“The passive voice should not be used.”

Conclusion

Don’t prefer or avoid passive voice. Don’t prefer or avoid active voice. They have different effects. Choose the voice that suits your needs.


[1] “Active,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/active (last visited May 15, 2018).

[2] “Passive,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/passive (last visited May 15, 2018).

[3] These examples are from “5 Writing Rules Destroyed By The Dictionary,” Merriam-Webster Dictionary (last visited May 15, 2018), https://www.merriam-webster.com/words-at-play/5-writing-rules-destroyed-by-the-dictionary/never-use-the-passive-voice.

[4] Ross Guberman, “Are You Passive-Aggressive?,” Legal Writing Pro (last visited May 15, 2018), https://www.legalwritingpro.com/articles/are-you-passive-aggressive/.

[5] Nancy Franklin, “The Dolor of Money,” The New Yorker (March 23, 2009), https://www.newyorker.com/magazine/2009/03/23/the-dolor-of-money. See Jan Freeman, “What We Get Wrong About the Passive Voice,” The Boston Globe (March 22, 2009), http://archive.boston.com/bostonglobe/ideas/articles/2009/03/22/active_resistance/ (pointing out error in New Yorker article).

[6] Guberman, supra n. 4; “Active and Passive Voice,” Wheaton College (2009), https://www.wheaton.edu/academics/services/writing-center/writing-resources/active-and-passive-voice/.

[7] See Bryan Garner, Legal Writing in Plain English 36 (2d ed. 2013); Richard Wydick, Plain English For Lawyers 27-31 (5th ed. 2005).

[8] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 153 (2004).

[9] See also id.; George Gopen, “Who Done It? Controlling Agency in Legal Writing- Part I,” 39 Litig. 2 (Spring 2013), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_7_controlling_agency_pt2.pdf; “Active and Passive Voice,” supra n. 6.

[10] See generally Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 144 (3d ed. 2016).

[11] Wydick, supra n. 7 at 31. Accord Goldstein & Lieberman, supra n. 10 at 144.

[12] Goldstein & Lieberman, supra n. 10 at 144.

[13] George Gopen, “Why the Passive Voice Should be Used and Appreciated- Not Avoided,” 40 Litig. 2 (Winter 2014), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_10_why_the_passive_should_be_used.pdf; Goldstein & Lieberman, supra n. 10 at 144-45.

[14] Gopen, supra n. 13.

[15] Id.

[16] Goldstein & Lieberman, supra n. 10 at 144-45; Gopen, supra n. 8 at 65-70.

[17] See Wydick, supra n. 7 at 31 (using a variation of this example).

[18] Id. (using a variation of this example).

[19] Id.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Rule Change 2018(07) Released, Amending Colorado Appellate Rules

On Friday, June 8, 2018, the Colorado State Judicial Branch released Rule Change 2018(07), adopted by the Colorado Supreme Court on June 7 and effective July 1, 2018. The rule change Form 8, “Designation of Transcripts,” in the Appendix to Chapter 32, and also amends Rules 21, 21.1, 49, 50, 51, 51.1, 52, 53, 54, 56 and 57.

While some of the changes are relatively minor, many of the rules were dramatically amended. A redline and a clean copy of the rule change is available here. Appellate practitioners are encouraged to familiarize themselves with the rule changes before their July 1 effective date.

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

Colorado Court of Appeals: Settlement Including Reduction for MedPay Amounts Enforceable Post-Calderon

The Colorado Court of Appeals issued its opinion in Arline v. State Farm Mutual Insurance Co. on Thursday, May 31, 2018.

Uninsured/Underinsured Settlement and Release Agreement—C.R.C.P. 12(b)(1) Dismissal.

Arline submitted claims to American Family Mutual Insurance Company (American) under insurance policies that provided $5,000 in MedPay coverage and $50,000 in individual underinsured motorist (UIM) coverage. American paid $5,000 in MedPay benefits on Arline’s behalf and negotiated Arline’s damages under her UIM coverage to be $27,000, after subtracting the $5,000 in MedPay benefits already paid. In November 2015, Arline, represented by counsel, accepted the $27,000 payment and signed a release agreement (Agreement) releasing American under the UIM policy.

In November 2016, the Colorado Supreme Court held for the first time in Calderon v. American Family Mutual Insurance Co., 2016 CO 72, that C.R.S. § 10-4-609(1)(c) prohibits insurers from reducing the UIM benefits paid on a claim by the amount of MedPay benefits paid on that claim, which the court deemed a “setoff.” (Counsel in that case now represents Arline.)  Arline then sued American for breach of contract and seeking class certification, asserting that American had unlawfully reduced UIM payments using a MedPay setoff. American responded that the Agreement was a complete bar to the cause of action and moved to dismiss. The district court found the Agreement enforceable and granted American’s motion to dismiss for lack of standing.

On appeal, Arline argued that the district court erred in dismissing her complaint because American’s payment pursuant to the Agreement caused her to suffer an injury-in-fact to a legally protected interest. Though the supreme court held that C.R.S. § 10-4-609(1)(c) prohibits policy provisions allowing a setoff from other coverage, it did not hold that the statute extended to settlement agreements. An insured may agree to a settlement and release as long as the terms do not violate statutory prohibitions or public policy. If a release agreement is valid, dismissal of claims encompassed by the agreement is proper. Here, Arline entered into the Agreement voluntarily while represented by counsel who was fully informed that certiorari had been granted in Calderon. She negotiated her damages benefits and agreed that the UIM benefit amount paid compensated her sufficiently to warrant releasing American from any further claims. In addition, Colorado public policy favors the settlement of disputes when the settlement is fairly reached. Arline signed a valid release agreement that is not void as against public policy or prohibited by statute. The district court properly dismissed her claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Single Notice Addressed to Married Homeowners Deemed Constitutionally Adequate

The Colorado Court of Appeals issued its opinion in Cordell v. Klingsheim on Thursday, May 31, 2018.

Tax Sale—Adequate Notice—Treasurer’s Deed—Due Process—Reinstatement Order.

The Cordells owned a tract of land in La Plata County. After they failed to pay taxes for several years, Heller purchased a tax lien for the property and assigned it to Klingsheim, who later requested a deed from the La Plata County Treasurer. Before issuing the deed, the Treasurer sent the Cordells a copy of the notice of application for a treasurer’s deed by certified mail. The notice was mailed to the Cordells in one envelope, using a New Mexico address listed for the Cordells in the county tax records. A return receipt was received indicating the notice had been received by Mr. Cordell’s mother. The Cordells did not redeem, and the Treasurer issued a treasurer’s deed to Klingsheim.

Sometime later the Cordells learned of the notice and filed suit seeking a declaratory judgment that they were the owners of the property and the treasurer’s deed was void. The trial court ruled that the Treasurer had not made a “diligent inquiry” in attempting to notify the Cordells that their land might be sold to satisfy the tax lien and voided the deed. The alternative basis for the decision was that the deed was void because no “separate notice” was mailed to Ms. Cordell. The Court of Appeals previously affirmed the voiding order but did not address the “separate notice” argument. On certiorari review, the Colorado Supreme Court concluded that the Treasurer fulfilled the diligent inquiry duty and the Treasurer’s transmission of the notice by certified mail satisfied due process, and the Court reversed and remanded the case. On remand to the Court of Appeals, the Cordells requested the division to consider the separate notice argument. The division declined to do so, and a mandate was issued reversing the voiding order and remanding the case to the trial court. On remand, the trial court issued a reinstatement order without substantive analysis of its own.

On appeal of the reinstatement order, the Cordells argued that the trial court was not required to reinstate the treasurer’s deed on remand because the Supreme Court’s holding reached only one of the two grounds on which the trial court rested the voiding order. Neither the Supreme Court nor the trial court reached the separate notice issue. Because the issue was not resolved, the Court of Appeals considered whether the trial court’s failure to consider the issue warrants reversal. Here, the Cordells were married and both were receiving mail at the same address. The Court concluded that notice mailed to both record owners in a single piece of mail is constitutionally adequate. Thus, the reinstatement of the treasurer’s deed on remand was proper.

The reinstatement order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Attorney Affidavit Did Not Put Privileged Information at Issue, Therefore Privilege Not Waived

The Colorado Supreme Court issued its opinion in In re State Farm Fire & Casualty Co. v. Griggs on Monday, June 4, 2018.

Attorney-Client Privilege—Implied Waiver.

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s determination that petitioner State Farm Fire and Casualty Company impliedly waived the attorney-client privilege protecting communications between it and its former counsel when it submitted an affidavit from that former counsel to rebut factual allegations of discovery misconduct. The court issued a rule to show to cause why the district court’s finding of implied waiver should not be reversed and now makes that rule absolute. The attorney affidavit submitted in this case did not put privileged information at issue by asserting a claim or defense that depends on privileged information or attorney advice. Rather, the affidavit contained only factual statements that were intended to rebut allegations of discovery misconduct. Accordingly, the court concluded that the district court erred in finding that State Farm impliedly waived its attorney-client privilege on the facts presented.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: “Suicide, Sane or Insane” Means Intentional Commission of Self-Injurious Act

The Colorado Supreme Court issued its opinion in Renfandt v. New York Life Insurance Co. on Monday, June 4, 2018.

Life insurance Policies—Suicide Exclusion Clauses.

In this opinion, the Supreme Court answered a question of state law certified by the U.S. District Court for the District of Colorado. The Court was asked to interpret the meaning of the words “suicide, sane or insane” when used in life insurance policies. The Court concluded that, under Colorado law, a life insurance policy exclusion for “suicide, sane or insane” excludes coverage only if the insured, whether sane or insane at the time, committed an act of self-destruction with the intent to kill himself.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Courts Must Review Claims in Amended Complaint to Evaluate Eligibility for Jury Trial

The Colorado Supreme Court issued its opinion in Mason v. Farm Credit of Southern Colorado on Monday, June 4, 2018.

ACA—C.R.C.P. 38—Right to a Jury Trial—Legal or Equitable—Basic Thrust Test.

This case concerns the right to a jury trial in a civil case. The supreme court considered whether trial courts must review the claims in a plaintiff’s amended complaint, as opposed to those in its original complaint, to determine whether a party is entitled to a jury trial under C.R.C.P. 38. The court concluded that its prior cases and the Colorado Rules of Civil Procedure require it to answer that question affirmatively. Accordingly, the court held that when a plaintiff amends its complaint and a party properly demands a jury trial under C.R.C.P. 38, the trial court should determine whether the case may be tried to a jury based on the claims in the amended complaint. The court further held that C.R.C.P. 38 permits a case to be tried to a jury when the claims in the plaintiff’s amended complaint are primarily legal, as opposed to equitable. Finally, after examining respondents’ amended complaint, the court concluded that respondents’ claims against petitioner are primarily legal. Thus, petitioner was entitled to a jury trial under C.R.C.P. 38.

The court of appeals’ judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: One-year Statute of Limitations Does Not Apply to Bad Faith Actions Under C.R.S. § 10-3-1116(1)

The Colorado Supreme Court issued its opinion in Rooftop Restoration, Inc. v. American Family Mutual Insurance Co. on Tuesday, May 29, 2018.

Unreasonable Delay and Denial of Insurance Benefits—Statute of Limitations—Statutory Interpretation.

The supreme court considered a certified question from the U.S. District Court for the District of Colorado. Specifically, the court determined whether the one-year statute of limitations in C.R.S. § 13-80-103(1)(d) governs actions under C.R.S. § 10-3-1116(1), which creates a cause of action to address the unreasonable delay or denial of insurance benefits. The court concluded that the one-year statute of limitations does not apply to actions brought under C.R.S. § 10-3-1116(1) because the legislature did not intend C.R.S. § 10-3-1116(1) to operate as a penalty within the context of the statutory scheme.

The certified question was answered in the negative and the case was returned to the district court for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Survivor Statute Does Not Allow Personal Injury Award to be Limited

The Colorado Supreme Court issued its opinion in Guarantee Trust Life Insurance Co. v. Estate of Casper on Tuesday, May 29, 2018.

Unreasonable Delay and Denial of Insurance Benefits—Abatement—Actual Damages.

The supreme court considered the operation of C.R.S. § 13-20-101, Colorado’s survival statute, and C.R.S. § 10-3-1116(1), a statutory cause of action for the unreasonable delay or denial of insurance benefits. The court also considered the scope of the trial court’s authority to enter a final judgment nunc pro tunc.

The original plaintiff in this case died after receiving a favorable jury verdict but before that verdict had been reduced to a written and signed entry of final judgment. Defendant then moved to substantially reduce the jury award, arguing that the survival statute barred certain damages. The court concluded that the survival statute does not limit the jury’s verdict in favor of the original plaintiff. The court further concluded that an award of attorney fees under C.R.S. § 10-3-1116(1) is a component of the “actual damages” of a successful claim under that section and that, although the survival statute did not limit the damages awarded by the jury, the trial court abused its discretion by entering a final judgment nunc pro tunc.

The court of appeals’ judgment was affirmed in part and reversed in part.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: C.R.S. § 10-3-1116(1) Does Not Require Reduction of Damages Award by Amount of Benefits Delayed but Ultimately Paid

The Colorado Supreme Court issued American Family Mutual Insurance Co. v. Barriga on Tuesday, May 29, 2018.

Unreasonable Delay and Denial of Insurance Benefits—Damages.

The supreme court considered the operation of a statutory scheme that prohibits the unreasonable delay or denial of insurance benefits. Specifically, the court considered whether an award of damages under C.R.S. § 10-3-1116(1) must be reduced by an insurance benefit unreasonably delayed but ultimately recovered by an insured outside of a lawsuit. The court held that an award under C.R.S. § 10-3-1116(1) must not be reduced by an amount unreasonably delayed but eventually paid by an insurer because the plain text of the statute provides no basis for such a reduction. The court further concluded that the general rule against double recovery for a single harm does not prohibit a litigant from recovering under claims for both a violation of C.R.S. § 10-3-1116(1) and breach of contract.

The court of appeals’ decision was affirmed.

Summary provided courtesy of Colorado Lawyer.

Bills Signed Regarding Civil Forfeiture Reform, Community Corrections Transition Placements, Electronic Vehicle Title Filing, and More

On Tuesday, May 29, 2019, Governor Hickenlooper signed 59 bills into law. To date, he has signed 315 bills into law and sent two to the Secretary of State without a signature. Some of the bills signed Tuesday include a bill reforming the civil asset forfeiture process, a bill enacting a community corrections transition placement program, a bill providing relief from collateral criminal consequences, a bill allowing vehicle titles to be transferred electronically, a bill changing the own-source requirements for medical marijuana sales, a bill expanding civil jurisdiction of county courts, and more. The bills signed Tuesday are summarized here.

  • HB 18-1019 – “Concerning Criteria Applied in Determining Performance Ratings for Entities in the Elementary and Secondary Public Education System, and, in Connection Therewith, Making an Appropriation,” by Rep. Kevin Priola and Rep. Mike Cooke. For purposes of determining the level of attainment for accreditation of each public high school, each school district, the state charter school institute, and the state as a whole on the postsecondary and workforce readiness performance indicator, the bill adds additional measures of the percentage of students who successfully complete certain courses.
  • HB 18-1020 – “Concerning Civil Forfeiture Reform, and, in Connection Therewith, Changing the Entity Required to Report on Forfeitures, Expanding the Scope of the Forfeitures to be Reported, Establishing Grant Programs, Changing the Disbursement of Net Forfeiture Proceeds, and Making an Appropriation,” by Rep. Leslie Herod and Sens. Daniel Kagan, Tim Neville, & Bob Gardner. During the 2017 session, the General Assembly enacted a bill involving civil forfeiture requiring seizing agencies to submit reports to the Department of Local Affairs The bill expands the scope of the reports to include seizures related to a local public nuisance law or ordinance. The 2017 act also prohibited seizing agencies from receiving forfeiture proceeds from the federal government unless the aggregate value of property seized in a case is over $50,000. The bill establishes the law enforcement assistance grant program in the Department of Public Safety to reimburse seizing agencies for revenue lost because of this prohibition.
  • HB 18-1057 – “Concerning the Collection of Debts, and, in Connection Therewith, Allowing Collection Agents to Add Certain Expenses to Amounts Due for Collection,” by Rep. Hugh McKean and Sen. Don Coram. The bill allows a private collection agency or privately retained attorney collecting on any debt arising from past-due orders, obligations, fines, or fees due to the state, or to any political subdivision within the state, to add to the amount due that has been placed for collection all fees, costs, and costs of collection, including designated contractual attorney fees and costs that are awarded by a court of competent jurisdiction.
  • HB 18-1060 – “Concerning a State Income Tax Deduction for Military Retirement Benefits for an Individual who is Under Fifty-five Years of Age,” by Reps. Jessie Danielson & Lois Landgraf and Sens. Larry Crowder & Angela Williams. The bill allows an individual who is under 55 years old and whose military retirement benefits are less than $40,000 to claim a federal income tax deduction.
  • HB 18-1108 – “Concerning the Colorado Commission for the Deaf and Hard of Hearing, and, in Connection Therewith, Renaming the Commission the Colorado Commission for the Deaf, Hard of Hearing, and Deafblind; Creating the Colorado Deafblind Citizens Council to Advise the Commission on Deafblind Issues; Clarifying and Expanding the Commission’s Duties to Provide Services to the Deaf, Hard of Hearing, and Deafblind; and Changing the Membership of the Committee Charged with Reviewing Grant Applications,” by Rep. Jessie Danielson and Sen. Nancy Todd. The bill changes the name of the ‘Colorado commission for the deaf and hard of hearing’ to the ‘Colorado commission for the deaf, hard of hearing, and deafblind’. The bill expands the commission’s duties to include establishing a community access program for one-on-one system navigation and changes the membership on the committee reviewing grant applications under the act.
  • HB 18-1128 – “Concerning Strengthening Protections for Consumer Data Privacy,” by Reps. Cole Wist & Jeff Bridges and Sens. Kent Lambert & Lois Court. Except for conduct in compliance with applicable federal, state, or local law, the bill requires covered and governmental entities in Colorado that maintain paper or electronic documents that contain personal identifying information to develop and maintain a written policy for the destruction and proper disposal of those documents.
  • HB 18-1135 – “Concerning the Extension of the Advanced Industries Export Acceleration Program, and, in Connection Therewith, Making an Appropriation,” by Reps. Traci Kraft-Tharp & James Wilson and Sen. Jack Tate. The bill extends the advanced industries export acceleration program that is currently managed by the office of economic development.
  • HB 18-1152 – “Concerning Making Certain Records of the State Judicial Department Relating to Sexual Harassment Investigations Subject to the Colorado Open Records Act,” by Rep. Polly Lawrence and Sen. John Cooke. Under the Colorado open records act (CORA), records related to sexual harassment complaints are not open records; except that those records are available to a person making a sexual harassment complaint and the subject of the complaint. The bill makes the judicial department subject to the sexual harassment provision of CORA until May 1, 2021.
  • HB 18-1155 – “Concerning the Continuation of the Physical Therapy Board, and, in Connection Therewith, Implementing the Recommendations Contained in the 2017 Sunset Review and Report by the Department of Regulatory Agencies,” by Reps. Larry Liston & Jonathan Singer and Sen. Beth Martinez Humenik. The bill extends the licensing of physical therapists and physical therapist assistants to 2024 and makes several other changes.
  • HB 18-1174 – “Concerning the Continuation Under the Sunset Law of the Board of Mortgage Loan Originators, and, in Connection Therewith, Adopting the Legislative Recommendations of the Department of Regulatory Agencies as Contained in the Department’s Sunset Report,” by Reps. Jeni James Arndt & Matt Gray and Rep. Kevin Priola. The bill implements the recommendations of the Department of Regulatory Agencies in its sunset review of the board of mortgage loan originators.
  • HB 18-1184 – “Concerning the Creation of a Report on 911 Service in Colorado, and, in Connection Therewith, Requiring Consideration of Issues Related to the Implementation of Next Generation 911,” by Reps. Tony Exum & Polly Lawrence and Sens. Irene Aguilar & Bob Gardner. The bill requires the public utilities commission to annually publish a ‘state of 911’ report. The report must address the commission’s activities related to 911 service, the current statewide architecture and operations related to 911 service, 911 network reliability and resiliency, any identified gaps or vulnerabilities in 911 service, national trends and activities, funding, and the implementation of next generation 911.
  • HB 18-1202 – “Concerning an Income Tax Credit for an Employer Related to an Employee’s Paid Leave of Absence for the Purpose of Making an Organ Donation, and, in Connection Therewith, Enacting the ‘Living Organ Donor Support Act,'” by Rep. Alec Garnett and Sen. Bob Gardner. Beginning January 1, 2020, an employer is allowed an income tax credit that is an amount equal to 35% of the employer’s expenses incurred while the employee is on paid leave or for paying a temporary employee.
  • HB 18-1217 – “Concerning a Temporary Income Tax Credit for Employers that Make Contributions to 529 Qualified State Tuition Program Accounts Owned by their Employees, and, in Connection Therewith, Enacting the “Working Families College Savings Act,'” by Reps. Kevin Van Winkle & Alec Garnett and Sen. Bob Gardner. The bill creates a temporary income tax credit for income tax years commencing on or after January 1, 2019, but prior to January 1, 2022, for employers that make contributions to 529 qualified state tuition program accounts owned by their employees in an amount equal to 20% of the contribution, not to exceed $500.
  • HB 18-1224 – “Concerning the Process that is Due for the Imposition of Discipline that Affects a Person’s Ability to Practice an Occupation, and, in Connection Therewith, Requiring the Parties to Submit to Mediation and Making an Appropriation,” by Rep. Yeulin Willett and Sen. Bob Gardner. Current law requires state agencies to give notice to a licensee of certain facts that may lead to discipline or suspension. The bill makes certain changes to these requirements.
  • HB 18-1251 – “Concerning Measures to Improve the Efficiency of the Community Corrections Transition Placements, and, in Connection Therewith, Making an Appropriation,” by Reps. Pete Lee & Cole Wist and Sens. Daniel Kagan & Bob Gardner. The bill requires the state board of parole to submit a list of offenders for community corrections transition placement referrals to the department of corrections staff. The staff shall inform the board when the referral is made or the reason for not making the referral.
  • HB 18-1252 – “Concerning Unlawful Sale of Academic Materials for Submission to an Institution of Higher Education,” by Reps. Dylan Roberts & James Wilson and Sen. Kevin Priola. Under existing law, a person is not permitted to prepare, offer to prepare, cause to be prepared, sell, or distribute any term paper, thesis, dissertation, or other written material for another person for compensation if he or she knows or should reasonably have known, that it is to be submitted by any other person for academic credit at a public or private college, university, or other institution of higher education, or to advertise the same. A court may issue an injunction to prevent these practices. The bill defines ‘assignment’ to include any specific written, recorded, pictorial, artistic, or other academic task; maintains the existing offenses related to preparing or selling assignments, or advertising the same; and prohibits a person from preparing, selling, or offering to sell a document or service that provides answers for, or completes on behalf of a student, an online exam that is administered pursuant to a course of study at any institution of higher education, or advertising the same.
  • HB 18-1269 – “Concerning Notification to Parents of Charges Brought Against Public School Employees for Alleged Felony Offenses that would Result in the Revocation of an Educator License Pursuant to title 22, Colorado Revised Statutes,” by Reps. Paul Lundeen & Brittany Pettersen and Sens. Owen Hill & Rhonda Fields. The bill requires school districts, district charter schools, institute charter schools, and boards of cooperative services to notify parents of students enrolled in a local education provider of charges brought against an employee or former employee, if the employee was employed at any time within 12 months before an offense is charged, who has or had contact with students, if the charges are for one of the felony offenses that requires the denial, suspension, or revocation of a teacher license if the employee were a teacher.
  • HB 18-1277 – “Concerning a Requirement that an Application for a “Building Excellent Schools Today Act” Grant of Financial Assistance for Public School Capital Construction Include a Plan for the Future Use or Disposition of any Existing Public School Facility that the Applicant will Stop Using for its Current Use if it Receives the Grant,” by Reps. Jon Becker & Daneya Esgar and Sens. Randy Baumgartner & John Kefalas. Beginning with the state fiscal year 2019-20 grant cycle, the bill requires an application made to the public school capital construction assistance board under the ‘Building Excellent Schools Today Act’ for a grant of financial assistance that is for either the construction of a new public school facility that will replace one or more existing public school facilities or the reconstruction or expansion of an existing public school facility to include a plan for the future use or disposition of any existing public school facility that the applicant will stop using for its current use if it receives the grant.
  • HB 18-1283 – “Concerning the Classification of Residential Land for Property Tax Purposes Resulting from a Significant Change in the Residential Improvements Located Upon the Land,” by Rep. Adrienne Benavidez and Sen. Tim Neville. When residential improvements are destroyed, demolished, or relocated on or after January 1, 2018, that, were it not for their destruction, demolition, or relocation, would have qualified the land upon which the improvements were located as residential land for the following property tax year, the bill requires the residential land classification to remain in place for the year in which the improvements were destroyed, demolished, or relocated and one subsequent property tax year if the assessor determines that evidence is present that the owner intends to rebuild or locate a residential improvement on the land.
  • HB 18-1285 – “Concerning Parking for People with Certain Disabilities, and, in Connection Therewith, Making an Appropriation,” by Rep. Dan Pabon and Sens. Jim Smallwood & Nancy Todd. The bill creates a remuneration-exempt identifying placard that exempts an individual with a disability from paying for parking if the disability limits the individual’s fine motor skills, ability to grow above 48 inches, or ability to reach or access a parking meter.
  • HB 18-1291 – “Concerning the Continuation of the Conservation Easement Oversight Commission, and, in Connection Therewith, Implementing the Recommendations of the 2017 Sunset Report by the Department of Regulatory Agencies,” by Reps. Faith Winter & Dan Thurlow and Sen. Jerry Sonnenberg. The bill implements the recommendations of the department of regulatory agencies in its sunset review of the conservation easement oversight commission by extending the repeal date of the commission for 7 years until 2025 and modifies the composition of the commission.
  • HB 18-1294 – “Concerning the Continuation of the Regulation of Nursing Home Administrators by the Board of Examiners of Nursing Home Administrators in the Division of Professions and Occupations in the Department of Regulatory Agencies, and, in Connection Therewith, Requiring the Board to Record by Board Member Each Vote Regarding Licensee Discipline,” by Reps. Susan Longtine & Janet Buckner and Sen. Larry Crowder. The bill partially implements the recommendations of the department of regulatory agencies, as contained in the department’s sunset review of nursing home administrators by continuing the regulation of nursing home administrators by the board of examiners of nursing home administrators in the division of professions and occupations for 5 years, until September 1, 2023.
  • HB 18-1296 – “Concerning an Expansion of the Ability to Leave a Motor Vehicle Unattended in Certain Circumstances,” by Reps. Jovan Melton & Justin Everett and Sens. Vicki Marble & Dominick Moreno. Currently, if a person’s motor vehicle has a remote starter system and adequate security measures, he or she may leave the motor vehicle unattended while the engine is running. The bill provides that a motor vehicle may be left unattended if either a remote starter system or adequate security measures are in place.
  • HB 18-1299 – “Concerning Electronic Documents Related to the Ownership of a Vehicle that is Regulated by the Department of Revenue, and, in Connection Therewith, Making an Appropriation,” by Reps. Jeff Bridges & Patrick Neville and Sens. Ray Scott & Rachel Zenzinger. The bill creates a framework for the department of revenue to establish electronic processing for issuing certificates of title, filing or releasing liens, or registering vehicles and special mobile machinery. This is subject to the department promulgating rules.
  • HB 18-1300 – “Concerning Granting Authority for Local District Colleges to Provide a Bachelor of Science Degree in Nursing Program as a Completion Degree to Students who Have or Are Pursuing an Associate Degree in Nursing,” by Reps. Dave Young & Perry Buck and Sens. Vicki Marble & John Cooke. The bill allows a local district college, such as Aims community college, to offer a bachelor of science degree in nursing program as a completion degree in nursing to students who have or are pursuing an associate degree in nursing, provided that the college’s board of trustees determines it is appropriate to address the needs of the communities within its service area, as approved by the Colorado commission on higher education based on existing criteria.
  • HB 18-1309 – “Concerning Programs Addressing Educator Shortages, and, in Connection Therewith, Making an Appropriation,” by Reps. James Coleman & James Wilson and Sen. Owen Hill. The bill requires the Colorado department of education and the Colorado department of higher education to create the framework for a grow your own educator program and specifies required provisions.
  • HB 18-1344 – “Concerning Relief from Collateral Consequences of Criminal Actions,” by Reps. Mike Weissman & Lang Sias and Sens. Dominick Moreno & Don Coram. Current law has separate collateral relief sections for when a court orders an alternative sentence, probation, or community corrections. The bill combines collateral relief provisions into one section and authorizes a court to enter an order for collateral relief at the time of conviction of a defendant or any time thereafter. The bill requires a fingerprint-based criminal history record check only if the hearing is held after sentencing.
  • HB 18-1351 – “Concerning Signage for the Old Spanish Trail,” by Reps. Donald Valdez & Phil Covarrubias and Sens. Leroy Garcia & Larry Crowder. The bill recognizes the significance of the old Spanish national historic trail as a historic resource in Colorado. Subject to the availability of funding from gifts, grants, or donations, the bill requires the executive director of the department of transportation to erect signs marking portions of the trail that travel along or cross highways in Colorado.
  • HB 18-1362 – “Concerning the Membership Expansion of the Colorado Task Force on Drunk and Impaired Driving,” by Rep. Jeni James Arndt and Sen. Jack Tate. The bill adds 3 members to the Colorado task force on drunk and impaired driving. The executive director of the department of transportation, or the director’s designee, shall appoint a community-based representative from the substance use disorder prevention field and a representative from the retail or medical marijuana industry who is an owner or manager of a retail dispensary. The executive director of the department of revenue, or the director’s designee, shall appoint a representative from the marijuana enforcement division.
  • HB 18-1371 – “Concerning Capital Construction Budget Items, and, in Connection Therewith, Codifying the Three-year Period that Capital Construction Budget Items Remain Available and Clarifying the Deadlines for the Submission of Capital Construction Budget Requests, Budget Request Amendments, and Budget Request Amendments that are Related to a Request for a Supplemental Appropriation,” by Reps. Daneya Esgar & Jon Becker and Sens. John Kefalas & Randy Baumgardner. The bill codifies the 3-year period that capital construction appropriations remain available and clarifies the deadlines for the submission of capital construction budget requests, budget request amendments, and budget request amendments that are related to a request for a supplemental appropriation.
  • HB 18-1372 – “Concerning an Exemption of the Regional Center Depreciation Account in the Capital Construction Fund from the Definition of Cash Fund for Purposes of the Requirements under the Automatic Cash Fund Funding Mechanism for Payment of Future Costs Attributable to Certain of the State’s Capital Assets,” by Reps. Daneya Esgar & Jon Becker and Sen. John Kefalas. The bill exempts the Department of Human Services’ regional center depreciation account in the capital construction fund from the definition of ‘cash fund’ for purposes of the requirements under the automatic cash fund funding mechanism for payment of future costs attributable to certain of the state’s capital assets.
  • HB 18-1375 – “Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law,” by Reps. Yeulin Willett & Pete Lee and Sen. Bob Gardner. To improve the clarity and certainty of the statutes, the bill amends, repeals, and reconstructs various statutory provisions of law that are obsolete, imperfect, or inoperative.
  • HB 18-1381 – “Concerning Operations Related to the Sale of Medical Marijuana in the Regulated Medical Marijuana Market, and, in Connection Therewith, Moving from the Seventy Percent Own Source Requirement to a One-year Transition Period of Fifty Percent Own Source Requirement to an Elimination of the Own Source Requirement,” by Reps. Matt Gray & Kevin Van Winkle and Sens. Tim Neville & Cheri Jahn. The bill creates a transition period between the current limited sourcing model that begins July 1, 2018. For one year from that date, medical marijuana centers and optional premises cultivation facilities can purchase and sell 50% of their inventory as a wholesale transaction, and medical marijuana trim is not included in the calculation of the percentage.
  • HB 18-1388 – “Concerning an Exemption from the Requirement to Register a Security if the Security is Subject to a Notice Filing as Permitted under Federal Law,” by Rep. Alec Garnett and Sen. Jack Tate. Existing law generally requires that, for a person to issue a security, either the security or the person must be exempt or the person must register the security with the securities commissioner. The bill eliminates the registration requirement, and substitutes a notice filing requirement.
  • HB 18-1393 – “Concerning Measures to Support Effective Implementation of the ‘Colorado Reading to Ensure Academic Development Act’ for all Students who Receive Services Pursuant to READ Plans, and, in Connection Therewith, Making an Appropriation,” by Reps. Millie Hamner & Tony Exum and Sen. Bob Gardner. Under existing law, the state board of education is required to adopt an approved list of reading assessments, and the department of education is required to adopt advisory lists of literacy programming and professional development in literacy. With regard to the list of approved assessments and the advisory lists, the bill makes several changes.
  • HB 18-1431 – “Concerning Updating Managed Care Provisions in the Medical Assistance Program, and, in Connection Therewith, Aligning Managed Care Provisions with new Federal Managed Care Regulations, Removing Obsolete or Duplicative Statutory Language and Programs, and Updating and Aligning Statutory Provisions to Reflect the Current Statewide Managed Care System,” by Rep. Joann Ginal and Sen. Jim Smallwood. The bill amends, repeals, and relocates provisions of part 4 of article 5 of title 25.5, C.R.S., relating to managed care provisions under the medical assistance program to align with the federal ‘Medicaid and CHIP Managed Care Final Rule of 2016’, and to reflect the implementation of the accountable care collaborative as the statewide managed care system.
  • HB 18-1433 – “Concerning Modifications to the ‘Naturopathic Doctor Act,’ and, in Connection Therewith, Requiring a Naturopathic Doctor to Disclose that the Naturopathic Doctor is Registered and Updating the Terms that a Naturopathic Doctor May Use,” by Rep. Matt Gray and Sens. Jack Tate & Don Coram. As it relates to naturopathic doctors, the bill makes changes to terminology they may use.
  • SB 18-012 – “Concerning Including Military Enlistment as Part of the Postsecondary and Workforce Readiness Performance Indicator for Public Schools,” by Sen. Owen Hill and Rep. Brittany Pettersen. For purposes of determining the level of attainment of each public high school, each school district, the state charter school institute, and the state as a whole on the postsecondary and workforce readiness performance indicator for accreditation, the bill adds enlistment in the military within a year of graduation as a measure of performance.
  • SB 18-013 – “Concerning Expanding the Grades Eligible for the Child Nutrition School Lunch Protection Program, and, in Connection Therewith, Making an Appropriation,” by Sens. Rhonda Fields & Bob Gardner and Rep. Dafna Michaelson Jenet. Current law creates an annual appropriation to provide lunches at no charge to children in state-subsidized early childhood education programs administered by public schools or in kindergarten through fifth grade who would otherwise have to pay for a reduced-price lunch. The bill extends the grade of eligibility to eighth grade in schools that elect to participate in the expanded program.
  • SB 18-031 – “Concerning an Extension of the Title 12 Recodification Study Being Conducted by the Office of Legislative Legal Services, and, in Connection Therewith, Making an Appropriation,” by Sen. Bob Gardner and Rep. Mike Foote. Current law directs the office of legislative legal services to study the organizational recodification of title 12 of the Colorado Revised Statutes. The law authorizing the study repeals on September 1, 2018. The bill extends the title 12 recodification study for one additional year, through September 1, 2019.
  • SB 18-033 – “Concerning the Continuation of the Animal Feeding Operation Permit Program under the Department of Public Health and Environment, and, in Connection Therewith, Making an Appropriation,” by Sen. Jerry Sonnenberg and Reps. Jeni James Arndt & Jon Becker. The bill replaces the July 1, 2018, repeal date for the department of public health and environment’s animal feeding operation permit program with a repeal date of July 1, 2025. The bill also extends the fees associated with the program at their current levels.
  • SB 18-056 – “Concerning Monetary Amounts in Civil Actions,” by Sen. Cheri Jahn and Reps. Pete Lee & Yeulin Willett. Under current law, a person may file a civil action in county court if the value of the claim is $15,000 or less. The bill increases that limit to $25,000 or less. The bill also changes the filing fees.
  • SB 18-108  – “Concerning the Issuance of Identification Documents under the ‘Colorado Road and Community Safety Act’ to Persons who are Not Lawfully Present in the United States, and, in Connection Therewith, Making an Appropriation,” by Sens. Larry Crowder & Don Coram and Reps. Jeni James Arndt & Jonathan Singer. Currently, a person who is not lawfully present in the United States may obtain a driver’s license or identification card if certain requirements are met. One of the requirements is that the person present a taxpayer identification card. The bill allows a person to present a social security number as an alternative to a taxpayer identification card. The bill allows the license or identification card to be reissued or renewed in accordance with the process used for other licenses and identification cards.
  • SB 18-119 – “Concerning False Imprisonment of a Minor, and, in Connection Therewith, Making an Appropriation,” by Sens. Bob Gardner & Terri Carver and Rep. Adrienne Benavidez. The bill states that a person commits class 5 felony false imprisonment if he or she confines or detains another person less than 18 years of age by means of tying, locking, caging, chaining, or otherwise restricting that person’s freedom of movement by any instrumentality for an unreasonable amount of time under the circumstances.
  • SB 18-141 – “Concerning Voluntary Contribution Designations on the Colorado Individual Income Tax Return Form,” by Sen. Lois Court and Reps. James Wilson & Chris Hansen. The bill creates the donate to a Colorado nonprofit fund in the state treasury. A voluntary contribution designation line for the fund will appear on the state individual income tax return form.
  • SB 18-150 – “Concerning Measures to Facilitate Voter Registration of Individuals in the Criminal Justice System, and, in Connection Therewith, Making an Appropriation,” by Sens. Stephen Fenberg & Kevin Lundberg and Reps. Hugh McKean & Pete Lee. The bill allows a person on parole to preregister to vote. A person who preregisters is required to meet all the requirements of a person who registers.
  • SB 18-191 – “Concerning the Local Government Limited Gaming Impact Fund, and, in Connection Therewith Making an Appropriation,” by Sen. Bob Gardner and Reps. Terri Carver & Edie Hooten. The bill annually increases the amount of money credited to the limited gaming impact fund by an amount equal to the growth of the state share from the previous fiscal year.
  • SB 18-205 – “Concerning the Regulation of Industrial Hemp as an Agricultural Product, and, in Connection Therewith, Identifying the Unprocessed Seeds of Industrial Hemp as a Commodity under the ‘Commodity Handler Act’ and Industrial Hemp as a Farm Product under the ‘Farm Products Act,'” by Sens. Vicki Marble & Don Coram and Reps. Marc Catlin & Barbara McLachlin. The bill includes the unprocessed seeds of industrial hemp in the definition of ‘commodity’ within the ‘Commodity Handler Act’, thus subjecting a person who acts as a commodity handler with respect to the unprocessed seeds of industrial hemp to the licensing requirements set forth in the ‘Commodity Handler Act’.
  • SB 18-208 – “Concerning the Creation of the Governor’s Mansion Maintenance Fund,” by Sen. Randy Baumgartner & John Kefalas and Reps. Daneya Esgar & Chris Hansen. The bill creates the governor’s mansion maintenance fund, which is comprised of the money generated from the mansion’s operation, such as rental fees.
  • SB 18-209 – “Concerning Modifications to the Government Data Advisory Board Created in the Office of Information Technology,” by Sens. Beth Martinez Humenik & Nancy Todd and Reps. Dan Thurlow & Dan Pabon. The government data advisory board (board) was created in the office of information technology to advise and provide recommendations to the chief information officer regarding interdepartmental data protocol and best practices in sharing and protecting data in state government. The bill modifies the definition of interdepartmental protocol to reflect current practice. The bill also modifies the composition of the board to include a representative from each state agency and to remove members of the education data subcommittee from the board.
  • SB 18-210 – “Concerning the Regulation of Real Estate Appraisal Management Companies, and, in Connection Therewith, Aligning State Law with Current Federal Law and Regulations,” by Sen. Jack Tate and Reps. Jeni James Arndt & Edie Hooten. The bill amends the definition of ‘appraisal management company’ to contain all of the elements specified in recent amendments to Title XI of the federal ‘Financial Institutions Reform, Recovery, and Enforcement Act of 1989’ (FIRREA) and regulations adopted in furtherance of FIRREA. Section 1 also adds a definition of ‘appraiser panel’ to include appraisers working as independent contractors.
  • SB 18-213 – “Concerning Requiring Local School Districts to Recognize Academic Credits Earned by Students in the Custody of the Division of Youth Services,” by Sen. Beth Martinez Humenik and Rep. Leslie Herod. Under current law, when a student in out-of-home placement transfers from one school to another school, the sending school must certify to the receiving school or school district the course work that the student has fully or partially completed while enrolled at the school. The bill requires receiving schools and school districts to follow the same procedures for a student who transfers to a school or school district from a division of youth services placement.
  • SB 18-233 – “Concerning Technical Modifications to Miscellaneous Provisions of the ‘Uniform Election Code of 1992,’ and, in Connection Therewith, Making an Appropriation,” by Sens. Vicki Marble & Stephen Fenberg and Reps. Mike Foote & Patrick Neville. The bill makes several technical modifications to miscellaneous provisions of the ‘Uniform Election Code of 1992.’
  • SB 18-235 – “Concerning the Creation of the Colorado Industrial Hemp Research and Development Authority,” by Sen. Don Coram and Rep. Jeni James Arndt. The bill creates the Colorado industrial hemp research and development task force to study whether to develop an industrial hemp research and development authority to develop, fund, and promote educational, research, and development programs and collaborative efforts concerning industrial hemp.
  • SB 18-239 – “Concerning a Licensed Chiropractor’s Ability to Perform Animal Chiropractic on an Animal Patient,” by Sen. Vicki Marble and Reps. Jeni James Arndt & James Wilson. Under current law, a licensed chiropractor must obtain a veterinary medical clearance from a licensed veterinarian before performing an animal chiropractic act that falls within the chiropractor’s scope of practice on an animal patient. The bill removes the veterinary medical clearance requirement for licensed chiropractors who have successfully completed 9 hours of course work related to contagious, infectious, and zoonotic diseases.
  • SB 18-253 – “Concerning the Effective Date to Transition the Department of Revenue’s CSTARS Account to the Department of Revenue’s DRIVES Vehicle Services Account,” by Sen. Kent Lambert and Rep. Dave Young. The bill establishes a uniform date of July 1, 2019, to transition the department of revenue’s Colorado state titling and registration (CSTARS) account to the department of revenue’s DRIVES vehicle services account. The bill also delays for one year the corresponding statutory repeal dates.
  • SB 18-262 – “Concerning Targeted Funding for Public Institutions of Higher Education to Help Achieve the Colorado Commission on Higher Education Master Plan Goals, and, in Connection Therewith, Making an Appropriation,” by Sen. Bob Gardner and Reps. Crisanta Duran & Jeff Bridges. The bill makes appropriations to the department of higher education for need-based grants, student stipends, fee-for-service contracts with institutions of higher education, local district college grants, and area technical colleges.
  • SB 18-266 – “Concerning Controlling Costs under the ‘Colorado Medical Assistance Act, and, in Connection Therewith, Using Data and Technology, Creating a Hospital Review Program, and Making and Reducing an Appropriation,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill directs the Department of Health Care Policy and Financing to provide information to providers participating in the accountable care collaborative.
  • SB 18-268 – “Concerning the Scope of the Authority of the Department of Transportation to Award a Design Bid Build Highway Project Contract in an Amount that Exceeds the Estimate of the Department on the Project,” by Sens. Ray Scott & Dominick Moreno and Reps. Barbara McLachlin. If there are fewer than 3 bidders on a design bid build highway project, a provision of current law generally prohibits the department of transportation (CDOT). The bill authorizes a designee of the executive director to award such a contract.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Practice of Billing Foreclosure Clients for Costs Not Incurred Violates CCPA

The Colorado Court of Appeals issued its opinion in State of Colorado ex rel. Coffman v. Robert J. Hopp & Associates, LLC on Thursday, May 17, 2018.

Foreclosure Commitments—Colorado Consumer Protection Act—Colorado Fair Debt Collection Practices Act—Deceptive Trade Practices—Statute of Limitations—Title Insurance Policy—Cancellation Fee—Civil Penalties—Evidence.

Hopp is an attorney whose law firms provided legal services for mortgage defaults, including residential foreclosures, in Colorado. Hopp also owned businesses that supported the law firms’ foreclosure services, including National Title, LLC and First National Title Residential, LLC, which provided foreclosure commitments for the law firms. National Title and First National Title Residential issued title commitments and policies through an underwriter, Fidelity National Title Insurance Company (Fidelity). Fidelity had a Division of Insurance (DOI)-approved manual that set forth rates and charges for foreclosure commitments.

While representing loan servicers, the law firms typically ordered foreclosure commitments from Hopp’s title companies. National Title invoiced the law firms a charge of 110% of the schedule of basic rates upon the delivery of a foreclosure commitment. As a routine practice, within 10 days of filing a foreclosure action, the law firms passed this cost on to the servicers by billing and seeking reimbursement from them for the charge of 110% of the schedule of basic rates, even though this cost may not have actually been incurred.

The State of Colorado ex rel. Cynthia H. Coffman, Attorney General for the State of Colorado, and Julie Ann Meade, Administrator, Uniform Consumer Credit Code (collectively, plaintiffs) sued Hopp, his law firms, his affiliated title companies, and his business that provided accounting and bookkeeping services for the law firms and title companies (collectively, defendants), alleging that defendants violated the Colorado Consumer Protection Act (CCPA) and the Colorado Fair Debt Collection Practices Act (CFDCPA) by engaging in the billing practices described above. The district court found in favor of plaintiffs and imposed penalties of $624,000.

On appeal, defendants contended that the trial court erred by imposing penalties under the CCPA and the CFDCPA because they were barred by the one-year limitation period in C.R.S. § 13-80-103(1)(d) and C.R.S. § 5-16-113(5) (CFDCPA claims), and C.R.S. § 6-1-115 (CCPA claims). Because the CCPA contains a statute of limitations specifically addressing cases brought under its provisions, the three-year statute of limitations controls over the more general C.R.S. § 13-80-103(1)(d). Further, because the CFDCPA did not contain a clear statute of limitations applying to government enforcement actions at the times relevant to this action, a catch-all provision applies requiring the government to file any claims within one year of discovery, which was done in this case. Therefore, the trial court did not err in concluding that the CFDCPA claims were timely filed.

Defendants next contended that the trial court erred when it concluded that they violated the CCPA and the CFDCPA by charging 110% of the schedule of basic rates for foreclosure commitment required by Fidelity’s rates on file with the DOI. This was the same amount that Fidelity’s manual listed as the charge for a completed title insurance policy, even in cases where the policy would never be issued because the foreclosure was cured or cancelled. Defendants did not charge amounts in compliance with Fidelity’s filed rates because they required payment from servicers even when a title insurance policy was never issued. The evidence supported the trial court’s finding that defendants misrepresented the premium charges as actually incurred costs. Therefore, the trial court did not err.

Defendants also contended that the trial court erred when it concluded that they knowingly engaged in a deceptive trade practice. Here, the trial court’s finding that defendants acted knowingly was supported by evidence in the record.

Defendants next argued that the trial court abused its discretion when it admitted plaintiffs’ Exhibit 103 and relied on it in assessing civil penalties against defendants. Exhibit 103 is a 1,114-page spreadsheet compiling electronic invoicing data submitted by Hopp’s law firms through a billing software to the servicers from 2008 until the time of trial. The trial court did not abuse its discretion when it admitted Exhibit 103 as a business record under CRE 803(6).

Plaintiffs contended on cross-appeal that the trial court abused its discretion when it admitted defendants’ Exhibit 1093 to rebut plaintiffs’ Exhibit 104. At times, servicers directed the law firms to order foreclosure commitments from LSI Default Title and Closing (LSI), instead of from one of Hopp’s affiliated title companies. Plaintiffs amended their complaint to add claims for defendants’ violation of the CCPA and CFDCPA through conduct regarding the LSI transactions. Exhibit 104 reflected that LSI appeared to charge defendants only $350 for title commitments ordered, which was representative of a cancellation fee. Exhibit 1093 was an email from an LSI representative to Hopp’s wife, which included an attached spreadsheet showing charges for full policy premiums rather than outstanding charges of $350. There were “unusual and unexplained adjustments” to Exhibit 104, and the trial court declined to place any weight on the exhibit in its final order and concluded that plaintiffs failed to prove their claim based on the LSI transactions. Here, there was a proper foundation for admitting Exhibit 1093, and given the late addition of the LSI claim and the parameters of the claim set forth in the plaintiffs’ written notice, the trial court did not abuse its discretion in declining to exclude Exhibit 1093 as a sanction for defendants’ failure to supplement their mandatory disclosures at a late point in litigation.

Both parties requested an award of attorney fees and costs incurred in this appeal. Plaintiffs, but not defendants, are entitled to an award.

The judgment was affirmed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.