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Jan. 27

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In this issue:   Jan. 27, 2014
eLegislative Report from Michael Valdez

Welcome to the 2014 edition of the CBA e-legislative report. This CBA member benefit will be delivered to your Inbox on Monday afternoons and will recap legislation from the current legislative session and the role the CBA plays at the State Capitol.

In addition to updates on the positions taken by the CBA through our Legislative Policy Committee the e-leg report will highlight legislation that is of interest to the practicing bar.

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 mavaldez@cobar.org.

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CBA 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.

At its Jan. 24 meeting, the LPC voted to make technical changes to UCC Article 9 “Bar Sponsored” legislation. The proposal, which is the product of the Business Law Section, is crafted to clarify the existing law as it related to restrictions on assignment, transfer or creation of security interests in owner interests in unincorporated entities. Also on Jan. 24, the LPC voted to adopt recommendations from the Business Law Section, Bankruptcy Subsection to modify limits on exemptions in a bankruptcy proceeding. These statutes were modified seven years ago in legislation sponsored by the CBA.

Finally, at the meeting the committee voted to support the Uniform Power of Appointment Act; with Colorado modifications. The support for the legislation stems from a study committee within the Trusts and Estates Section of the CBA. The uniform act was approved by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) at its annual meeting in July 2013. As a quick reference point—Powers of Appointment are routinely included in trusts drafted throughout the United States but there is little statutory law governing their use. A power of appointment is an estate planning tool that permits the owner of property to name a third party and give that person the power to direct the distribution of that property among some class of permissible beneficiaries. The bill will be sponsored by the Colorado Uniform Law Commissioners and will have CBA support once it is introduced.

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At the Capitol—Week of Jan. 13

A recap of the committee and floor work follows.

Both the Senate and the House did not meet on Monday, Jan. 20 in observance of the Martin Luther King, Jr. holiday.

In the House

Scorecard:

Tuesday, January 21

  • HB 14-1019. Concerning the enactment of Colorado Revised Statutes 2013 as the positive and statutory law of the state of Colorado. Passed 3rd Reading 63 yes, 0 no, 2 excused.
  • The House Public Health Care & Human Services Committee amended and approved HB 14-1042. Concerning access by birth parents to records relating to the relinquishment of parental rights. The bill was referred to the Finance Committee.

Wednesday, January 22

  • The Finance Committee gave initial approval to HB 14-1020. Concerning the consolidation of two reports on taxable property that county assessors submit to their boards of equalization and sent the bill to the full House for consideration on 2nd Reading.
  • The Finance Committee amended and sent HB 14-1074. Concerning payments that a nonprofit owner of a tax-exempt property may receive for reasonable expenses incurred without affecting the tax-exempt status of the property to the floor of the House for consideration on 2nd Reading.
  • The Local Government Committee amended and approved HB 14-1017. Concerning measures to expand the availability of affordable housing in the state, and, in connection therewith, making modifications to statutory provisions establishing the housing investment trust fund, the housing development grant fund, and the low-income housing tax credit. The bill now moves to the Finance Committee for review.
  • HB 14-1064. Concerning the distribution of severance tax revenue to a local government that limits oil and gas extraction was postponed indefinitely—PI’d—“killed” by the House Local Government Committee.

Thursday, January 23

  • The House Judiciary Committee amended and approved HB 14-1035. Concerning collection of restitution ordered pursuant to a deferred judgment. The bill moves to the floor of the House for consideration on 2nd Reading.

Friday, January 24

  • Passed on 2nd Reading—HB14-1020. Concerning the consolidation of two reports on taxable property that county assessors submit to their boards of equalization. Also passed on 2nd Reading, HB14-1074. Concerning payments that a nonprofit owner of a tax-exempt property may receive for reasonable expenses incurred without affecting the tax-exempt status of the property.

In the Senate

Scorecard:

Tuesday, January 21

The Senate approved on 2nd Reading:

  • SB14-19. Concerning the state income tax filing status of two taxpayers who may legally file a joint federal income tax return.
  • SB14-9. Concerning a disclosure of possible separate ownership of the mineral estate in the sale of real property.
  • SB 14-21. Concerning the treatment of persons with mental illness who are involved in the criminal justice systems was approved by the Judiciary Committee and sent to the Appropriations Committee.
  • The Local Government Committee gave initial approval to SB 14-7. Concerning authority for a board of county commissioners to transfer county general fund moneys to its county road and bridge fund after a declared disaster emergency in the county and sent the bill to the Senate 2nd Reading Consent Calendar.

Wednesday, January 22

  • Passed on 3rd and final reading in the Senate, SB14-19. Concerning the state income tax filing status of two taxpayers who may legally file a joint federal income tax return. The vote 18 yes, 16 no, and 1 excused.
  • The committee on Health and Human serviced approved and sent SB 14-67. Concerning aligning certain state medical assistance programs’ eligibility laws with the federal “Patient Protection and Affordable Care Act” to the full Senate for review on 2nd Reading.
  • The State, Veterans and Military Affairs Committee defeated SB 14-33. Concerning the creation of income tax credits for nonpublic education.
  • SB 14-5. Concerning alternative administrative remedies for the processing of certain wage claims, and, in connection therewith, amending the provisions for written notices of a wage claim was amended by the Judiciary Committee and referred to the Finance Committee.
  • The Judiciary Committee gave its unanimous support to SB 14-48. Concerning use of the most recent United States census bureau mortality table as evidence of the expectancy of continued life of any person in a civil action in Colorado. The bill was sent to the Consent Calendar for consideration on 2nd Reading.

Thursday, January 23

  • Passed, with amendments, on 2nd Reading, SB 14-9. Concerning a disclosure of possible separate ownership of the mineral estate in the sale of real property.

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10 Bills of Interest
House Bills

HB 14-1026. Concerning the authorization of flexible water markets.

By Rep. Fischer and Sen. Schwartz
Water Resources Review Committee

Under the anti-speculation doctrine, current water court proceedings governing an application to change the beneficial use of an irrigation water right require the applicant to designate a specific alternative beneficial use identified at the time of the application. The bill creates a more flexible change-in-use system by allowing an applicant who seeks to implement fallowing, regulated deficit irrigation, reduced consumptive use cropping, or other alternatives to the permanent dry-up of irrigated lands to apply for a change in use to any beneficial use, without designating the specific beneficial use to which the water will be applied.

The bill defines “flex use” to mean an application of the fully consumptive portion of water that has been subject to a water right change-in-use proceeding to any beneficial use. It also redefines “appropriation” to exclude flex use from the anti-speculation doctrine.

The bill describes the procedures for obtaining a flex use change-in-use decree and a flex use substitute water supply plan. The bill is assigned to the Agriculture, Livestock, & Natural Resources Committee.

HB 14-1030. Concerning the establishment of incentives for the development of hydroelectric energy systems.

By Rep. Coram and Sen. Schwartz
Water Resources Review Committee

In order to promote the construction and operation of hydroelectric energy facilities in Colorado, the bill provides the following incentives:

  • The bill requires the state electrical board to approve the installation of a motor as a generator for a hydroelectric energy facility if the installation would be approved but for the fact that the motor is not being used in a manner commensurate with its nameplate;
  • Authorizes the department of natural resources to serve as the coordinating state agency for obtaining and compiling state agency comments about an application for a license or license exemption from the federal energy regulatory commission; and
  • Incorporates community hydroelectric energy facilities into the community solar garden statute, so that a group of community members may jointly subscribe to and receive electricity from a small hydroelectric energy facility located in or near the community.

The bill is assigned to the Transportation & Energy Committee.

HB 14-1032. Concerning the provision of defense counsel to juvenile offenders.

By Rep. Kagan and Sen. Guzman
Juvenile Defense Attorney Interim Committee

A promise to appear in court served upon a juvenile and the juvenile’s parent, guardian, or legal custodian shall state, in clear language that is understandable and appropriate to a juvenile:

  • That the juvenile has the right to have counsel;
  • That counsel will be appointed for the juvenile if the juvenile or the juvenile's parent, guardian, or legal custodian lacks adequate resources to retain counsel or refuses to retain counsel for the juvenile;
  • That, if the juvenile chooses to retain his or her own counsel, then the juvenile and the juvenile’s parent, guardian, or legal custodian are advised to choose counsel that is experienced in representing juveniles in the juvenile justice system; and
  • The contact information for the local office of the state public defender (OSPD).

When a juvenile is placed in a detention facility, a temporary holding facility, or a shelter facility designated by the court, the screening team shall promptly so notify the court, the district attorney, and the local office of the OSPD.

A juvenile who is detained shall be represented at the detention hearing by counsel. If the juvenile has not retained his or her own counsel, he or she shall be represented by the OSPD or, in the case of a conflict, by the office of alternate defense counsel (OADC). This representation shall continue unless:

  • The juvenile retains his or her own counsel; or
  • The juvenile is charged with an offense for which the juvenile may waive counsel and the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel.

The scheduled time for a detention hearing must allow a juvenile’s defense counsel sufficient time to consult with the juvenile before the detention hearing. This consultation may be performed by secure electronic means if the conditions under which the electronic consultation is held allow the consultation to be confidential. The law enforcement agency that arrested the juvenile shall promptly provide to the court and to defense counsel the affidavit supporting probable cause for the arrest and the arrest report, if the arrest report is available, and the screening team shall promptly provide to the court and to defense counsel any screening material prepared pursuant to the juvenile’s arrest.

A detention hearing shall not be combined with a preliminary hearing or a first advisement. Due to the limited scope of a detention hearing, the representation of a juvenile by appointed counsel at a detention hearing does not, by itself, create a conflict in the event that such counsel is subsequently appointed to represent another individual whose case is related to the juvenile’s case.

A summons issued by a court to a juvenile shall:

  • Explain that the court will appoint counsel for the juvenile if the juvenile does not retain his or her own counsel; and
  • State the contact information for the OSPD that serves the jurisdiction of the court.

At a juvenile’s first appearance before the court, after the detention hearing or at the first appearance if the juvenile appears on a summons, the court shall advise the juvenile of his or her constitutional and legal rights, including the right to counsel. The court shall appoint the OSPD or, in the case of a conflict, the OADC for the juvenile unless the juvenile has retained his or her own counsel or the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel.

Any decision to waive the right to counsel shall be made by the juvenile himself or herself after consulting with his or her defense counsel. The court may accept a waiver of counsel by a juvenile only after finding that:

  • The juvenile is of a sufficient maturity level to make a voluntary, knowing, and intelligent waiver of the right to counsel;
  • The juvenile has consulted with counsel and understands the sentencing options that will be available to the court in the event of an adjudication or conviction;
  • The juvenile has not been coerced into making the waiver;
  • The juvenile understands that the court will provide counsel if the juvenile’s parent, guardian, or legal custodian is unable or unwilling to obtain counsel for the juvenile; and
  • The juvenile understands the possible consequences that may result from an adjudication or conviction of the offense with which the juvenile is charged.

The court shall not accept a juvenile’s waiver of his or her right to counsel in any proceeding relating to a case in which the juvenile is charged with:

  • A sexual offense;
  • A crime of violence;
  • An offense for which the juvenile will receive a mandatory sentence upon his or her conviction of the offense; or
  • An offense for which the juvenile is being charged as a repeat juvenile offender, as an aggravated juvenile offender, or as a mandatory sentence offender.

The court shall not accept a juvenile’s attempt to waive his or her right to counsel if the prosecuting attorney is seeking direct file proceedings or a transfer proceeding or if the juvenile is in the custody of the state department of human services or a county department of social services.

For purposes of applying for court-appointed counsel, the indigence of a juvenile is determined only by considering the juvenile’s assets and income.

The appointment of counsel for a juvenile offender shall continue until the court’s jurisdiction is terminated, the juvenile or the juvenile’s parent, guardian, or legal custodian retains counsel for the juvenile, or the juvenile makes a knowing, intelligent, and voluntary waiver of his or her right to counsel.

A court shall not deem a guardian ad litem who is appointed by the court for a child in a delinquency proceeding to be a substitute for defense counsel for the juvenile.

The OSPD, before determining indigency, may provide limited representation to juveniles in detention hearings or adult defendants in custody who cannot post or are not allowed bond.

The OSPD, the OADC, and the judicial branch shall annually report certain data concerning juvenile delinquency proceedings.

The bill is assigned to the Judiciary Committee. The summary above relates to the bill as introduced; the sponsor is seeking input from various stakeholders to develop amendments.

HB 14-1033. Concerning state agency requirements for the enforcement of new regulatory requirements on small businesses, and, in connection therewith, enacting the “Regulatory Reform Act of 2014.”

By Rep. Szabo and Sen. Tochtrop

This bill enacts the “Regulatory Reform Act of 2014”. The bill makes legislative declarations about the importance of businesses with 100 or fewer employees to the Colorado economy and the difficulty these types of businesses have in complying with new administrative rules that are not known or understood by these businesses. The bill defines “new rule” as any regulatory requirement in existence for less than one year prior to its enforcement by a state agency, and “minor violation” as any violation of a new rule by a business of 100 or fewer employees where the violation is minor in nature, involving record-keeping and issues that do not affect the life safety of the public or workers. The bill provides exceptions from the definition of “minor violation” for certain types of rules.

For the first minor violation of a new rule by a business of 100 or fewer employees, the bill requires a state agency to issue a written warning and engage the business in educational outreach as to the methods of complying with the new rule. The bill requires state agencies to make information on new rules available and allows this information to be made available in electronic form. The bill is assigned to the State, Veterans, & Military Affairs Committee.

HB 14-1035. Concerning collection of restitution ordered pursuant to a deferred judgment.

By Rep. Gardner and Sen. Johnston

The bill clarifies that an order of restitution that is part of a deferred judgment can be collected by the court after the deferred judgment is dismissed until the judgment is satisfied. The bill has passed out of the Judiciary Committee—with amendments—and has been referred to the floor for consideration on 2nd Reading.

Senate Bills

SB 14-27. Concerning criminal history background checks for professionals who have the authority to appear in court

By Sen. Guzman

The bill requires a fingerprint-based criminal history background check for a law license applicant and a child and family investigator. The bill updates the license to practice law statute. The bill cleared the Judiciary and the Finance Committees on Jan. 15 and 23 respectively; it now goes to the full Senate for consideration on 2nd Reading. The CBA LPC voted to support the background checks for a law license applicant at the December 13 committee meeting.

SB 14-34. Concerning strengthening the protection of the press.

By Sen. Herpin

Current law requires a party seeking to enforce a subpoena against a newsperson to establish 3 elements by a preponderance of the evidence. As introduced, the bill changes the standard to clear and convincing evidence and requires the party to show the following four elements:

  • The information was not obtained in confidence;
  • The information is highly material and relevant;
  • The information is critical to a material issue; and
  • The information is not obtainable from another source.

On Jan. 15 the bill was heard by the Senate Judiciary Committee; action on the bill was delayed to allow the sponsor to draft amendments.

SB 14-38. Concerning eliminating the governor’s authority to restrict the distribution of firearms during a state of disaster emergency.

By Sen. Renfroe and Rep. Everett

The bill eliminates the governor’s authority to suspend or limit the sale, dispensing, or transportation of firearms during a state of disaster emergency. The bill is assigned to the State, Veterans, & Military Affairs Committee.

SB 14-42. Concerning the elimination of the limit on the term of a business incentive agreement that a local government enters into with a taxpayer who pays business personal property tax.

By Sen. Scheffel

A county, municipality, or special district (local government) is currently authorized to negotiate an incentive payment or credit with a taxpayer that pays business personal property tax and that establishes a new business facility, expands an existing business facility, or if there is a substantial risk that the taxpayer will relocate an existing facility out of state. These payments or credits are included in agreements that are commonly known as business incentive agreements.

The bill eliminates a 10-year limit on the term of a business incentive agreement and grants the governing body of the local government the discretion to determine the term of the agreement. The bill is assigned to the State, Veterans, & Military Affairs Committee.

SB 14-44. Concerning an alternative to required payments to register a motor vehicle for older Coloradans.

By Sen. Hill

Currently, owners of motor vehicles pay specific ownership tax and several registration fees, some of which are based on the age and weight of the vehicle. The bill authorizes people who are 65 years of age or older and who have lived in Colorado for five years to pay a flat registration fee of $34.10 and specific ownership tax of $15.90, instead of the normal fees and tax. The fees are apportioned as follows:

  • The department or county clerk who issues the registration may retain $2 for costs;
  • $1.50 is for the county road and bridge fund;
  • 50¢ is for the Colorado state titling and registration account in the highway users tax fund;
  • $2.50 is for the license plate cash fund;
  • 50¢ is for the AIR account in the highway users tax fund;
  • 10¢ is for the motorist identification account in the highway users tax fund;
  • $13 is for the statewide bridge enterprise special revenue fund;
  • $2 is for the emergency medical services account in the highway users tax fund;
  • $12 is for the highway users tax fund.

The bill is assigned to the State, Veterans, & Military Affairs Committee.