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From the Colorado Bar Association - Department of Legislative Relations
Michael Valdez
Keeping you apprised of what the General Assembly and your state Bar Association are up to under the Gold Dome.
Follow the Colorado Legislature on their website: http://www.leg.state.co.us/
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Okay, it turns out that there are no "routine" weeks under the dome . . .
On Friday, Speaker Andrew Romanoff accepted the resignation of three term state representative Michael Garcia. Former Rep. Garcia?s resignation came under allegations that he exposed himself and made lewd comments to a female lobbyist at a local bar. A vacancy committee from House District 42 (Arapahoe County/Aurora) will meet to select a successor for Garcia. Additionally, House Democrats will meet this week to select a new Assistant Majority Leader to succeed Garcia. Speaker Romanoff will assign the bills that Garcia was carrying to other House members.
CBA Legislative Policy Committee (LPC) activity
This segment is a quick re-cap of positions taken by the CBA?s Legislative Policy Committee (LPC). The LPC meets weekly to consider requests from sections and committees to take positions on pending legislation. This section is a weekly feature of the e-legislative report.
Friday, Feb. 1.
The LPC voted to support HB 1119 - Review Studies of Disparity in the Criminal Justice System. The bill was brought to the attention of the LPC by the CBA?s Civil Rights Committee. The bill directs the Colorado Commission on Criminal and Juvenile Justice to include in its areas of study the reduction of racial and ethnic disparity in the criminal and juvenile justice systems. The substance of the bill will be added to the work taken on by the Commission on Criminal and Juvenile Justice in last year?s legislation that created the commission. We may have to run to catch the bill ? the bill is up for 3rd Reading in the House on Monday, Feb. 4.
In the Family Law arena, HB 1176 - Custody Orders Military Deployment, requires that any court orders that concern the modification of the allocation of parental responsibilities or parenting-time based upon a parent's active duty deployment be interim orders. The LPC voted to support the bill; members of the Family Law section?s legislative committee provided technical drafting assistance to Rep. Labuda in the drafting stage of the bill. The bill is scheduled in the House Judiciary Committee for a hearing the morning of Wednesday, February 6.
Finally, at the request of the Family Law Section the LPC voted to oppose SB 106 - Sex Offender Child Custody Cases. The bill involves child custody cases where there is some ?credible evidence? that one of the parties is a perpetrator of unlawful sexual behavior. The bill directs that a party?s sex offender management team be consulted: by a child and family investigator (when making recommendations); by the court (when determining parenting time and the allocation of decision making responsibilities) and the court appointed evaluator (when making recommendations.) The bill awaits its first hearing in the State Veterans and Military Affairs Committee.
20 BILLS OF INTEREST (and status):
In the House
1. HB 1127 - Concerning the income tax credit for taxpayers who hire employees with developmental disabilities. By Rep. Liston. Establishes an income tax credit for a taxpayer who hires a person with a developmental disability for a job in a specified county. Allows the credit only for new employees who are compensated in accordance with minimum wage laws. Sets the amount of the credit at:
- 50% of gross wages paid to the employee in the first 3 months of employment; and
- 30% of gross wages paid to the employee in the subsequent 9 months.
Allows the credit for income tax years 2009, 2010, and 2011. Assigned to the Finance Committee.
2. HB 1130 - Concerning court orders allowing the interception of communications. By Rep. Garza-Hicks and Sen. Tapia. Permits a district attorney's or the attorney general's designee to apply for a wiretap if the district attorney or attorney general is out of the jurisdiction. Removes the restriction that allows only one extension for an order of a wiretap. Passed out of the Judiciary Committee to the House floor for 2nd Reading.
3. HB 1131 - Concerning procedures required for the approval by the commissioner of insurance of changes in control of insurers. By Rep. McGihon and Sen. Hagedorn. Requires the commissioner of insurance (commissioner) to conduct an independent investigation to determine the impact on competition resulting from a proposed merger of insurers. Requires the commissioner to issue a public report on his or her findings within a certain period after the filing of the insurers' statements regarding the proposed merger. Specifies that all data and reports pertaining to the proposed merger and collected or used by the commissioner in his or her investigation and analysis shall be made available to the public, and sets forth the procedures and time frames for such independent investigation and for public hearings. If an insurer claims that certain information provided is proprietary, the insurer has the burden of proof to keep such information confidential.
Specifies that the commissioner shall approve any merger or acquisition of control only after making certain findings. Specifies that, if the procedures set forth in the act are not followed, an aggrieved party may seek a preliminary injunction in a court of competent jurisdiction to stop the merger. Assigned to the Business Affairs and Labor Committee.
4. HB 1132 - Concerning treatment for offenders in the youthful offender system. By Rep. Stafford and Sen. Keller. Allows a sex offender 18 years of age or older in the youthful offender system to receive adult sex offender treatment. Adds mental health treatment as an available treatment option that offenders in the youthful offender system can receive without parental consent. Passed 2nd Reading in the House.
5. HB 1135 - Concerning common interest communities, and, in connection therewith, invalidating covenants that prohibit building modifications to accommodate persons with disabilities, requiring due process in penalty assessment procedures, and providing for alternative dispute resolution. By Rep. M. Carroll and Sen. Hagedorn. Invalidates covenants, rules, or policies of common interest communities (CICs) that prohibit reasonable as necessary to allow access by persons with disabilities in accordance modifications of a structure with federal law.
Requires CICs to adopt and follow written policies for the imposition of fines on unit owners that, at a minimum:
- Create a fair and impartial method for determining whether a violation of the covenants actually occurred and whether the unit owner is responsible for the violation; and
- Provide the unit owner notice and an opportunity to be heard before an impartial decision maker.
In existing law encouraging alternative dispute resolution (ADR), adds specific statutory references to available public and private ADR resources, including the office of dispute resolution established by the Colorado judicial branch. Passed the House and has been assigned to the Senate Local Government Committee.
6. HB 1140 - Concerning the repeal of statutory provisions prohibiting local governments from enacting rent controls on private residential property. By Rep. Weissmann and Sen. Schwartz. Repeals statutory provisions prohibiting counties and municipalities from enacting any ordinance or resolution that would control rents on private residential property. Assigned to Local Government Committee.
7. HB 1142 - Concerning the determination of a juvenile's competency to proceed in judicial proceedings. By Rep. Jahn. Revises the standard for when a juvenile is incompetent to proceed to include immature development as a condition for incompetence. Requires the juvenile court and the district court to apply the standard to competency determinations in cases involving defendants who are under 18 years of age. Assigned to the Judiciary Committee.
8. HB 1148 - Concerning the sufficiency of the assertion of a claim for title to real property by adverse possession under Colorado law. By Rep. Witwer and Sen. Tupa. On or after the effective date of the act, in addition to any other requirements specified in current law, specifies that a person may acquire fee simple title to real property by adverse possession only upon satisfaction of each of the following conditions:
- The person and any predecessors in interest of the person, as applicable, have satisfied all of the elements of a claim.
- The person claiming by adverse possession, or the person's predecessor in interest, had a good faith belief that the person was the actual owner of the property, and the belief was reasonable under the circumstances.
In order to prevail on a claim asserting a claim of title to real property by adverse possession, requires the person asserting the claim to prove each of the elements of the claim by clear and convincing evidence. Exempts certain provisions of the act from a claim for adverse possession for the purpose of establishing a prescriptive easement. Prohibits a person from maintaining an adverse possession claim under circumstances where the claim would deprive certain charitable organizations of title to undeveloped land.
Where the person asserting a claim of title to real property by adverse possession prevails on such claim, authorizes the court to determine, based upon the facts and circumstances of the case, whether to award the nonprevailing party an amount representing the fair market value of the property that is the subject of the claim as well as an amount representing any property taxes or other assessments levied on the subject property the nonprevailing party has paid from the commencement of the limitation period. Assigned to the Judiciary Committee.
9. HB 1153 - Concerning the oversight of fiduciaries under the provisions of the Colorado Probate Code. By Rep. Roberts. CBA sponsored legislation. Adds a new part to the Colorado probate code concerning oversight of fiduciaries in decedents' estates, guardianships and conservatorships, and trusts. Assigned to the Judiciary Committee.
10. HB 1161 - Concerning an increase in the regulatory authority of the mined land reclamation board over mining, and, in connection therewith, ensuring the protection of ground water and public health. By Rep. Kefalas and Sen. Johnson. Defines "in situ mining" and "in situ leach mining". Requires the reclamation of lands affected by in situ leach mining. Specifies that uranium mining is a type of designated mining operation. Requires all in situ leach mining of uranium to restore all affected ground water to its premining quality for all constituents. In the case of in situ leach mining, requires restoration of ground water to begin immediately upon any cessation of extraction or production. Requires all operators to reclaim all affected surface and ground water. Requires applicants for in situ leach mining permits to notify the owners of record of lands within 3 miles of the affected land.
Requires the mined land reclamation board (board) to:
- Require, as a condition of permit issuance, that the applicant for an in situ leach mining operation pay for an initial site characterization and ongoing monitoring of the affected land and affected surface and ground water;
- Deny a permit if the applicant fails to demonstrate that reclamation can and will be accomplished; and Deny a permit for in situ leach mining unless the applicant submits competent evidence of at least 5 similar mining operations that did not result in ground water contamination.
Authorizes the board to deny a permit:
- Based on uncertainty about the feasibility of reclamation;
- If the existing or reasonably foreseeable potential future uses of the affected ground water include domestic or agricultural uses;
- If the applicant has previously violated the reclamation laws and any violation remains unabated; or
- If the applicant has demonstrated a pattern of willful violations of environmental protection requirements.
Requires notification to the office of mined land reclamation of any failure or imminent failure of certain listed mining structures within 24 hours after such failure or the discovery of an imminent failure. Expands the list of such mining structures. Assigned to the Agriculture, Livestock, & Natural Resources Committee.
11. HB 1165 - Concerning an increase in the regulatory authority of the mined land reclamation board over mining. By Rep. Fischer and Sen. Shaffer. Requires the mined land reclamation board (board) to:
- Take human health and environmental risks into consideration in the permitting process;
- Regulate mining operations so as to prevent and mitigate significant adverse environmental impacts;
- Recognize the established principle of reasonable accommodation; and
- Protect public health, safety, and welfare, including protection of the environment and wildlife resources.
Increases the board to 9 members, including the executive director of the department of public health and environment (department) and one member representing local governments. Gives the department an opportunity to comment during the board's decision-making process. Specifies that construction materials mining operations that also extract other minerals are subject to the board's jurisdiction. Makes all information submitted to the board a public record other than information relating to the location, size, or nature of an ore deposit. Increases the time to object to or support an application for a permit to 45 days, and increases the time for filing of an appeal to 60 days.
Establishes that the funding to ensure that reclamation is achieved should be established as a requirement for permit approval and should be borne by the operator. Requires reclamation costs to be calculated based on when the reclamation is anticipated to occur rather than current costs. Limits the types of proof of financial responsibility that a foreign entity formed under a statute or common law of a jurisdiction outside of the United States may provide.
Defines and establishes fees for in situ leach mining. Authorizes the board to take emergency action when an operator fails or refuses to respond to a board order requiring corrective actions for any measure used for in situ leach mining designed to detect, prevent, minimize, or mitigate any adverse impacts on human health, wildlife, or the environment. Assigned to the Agriculture, Livestock, & Natural Resources Committee.
12. HB 1166 - Concerning clarification of provisions authorizing an administrative revocation of a driving privilege. By Rep. Judd and Sen. Hagedorn. Repeals and reenacts, with amendments, the statute authorizing the department of revenue to revoke a person's driver's license due to the presence of alcohol or drugs in the person's system or the person's refusal to take a test to determine whether there is alcohol or drugs in the person's system. Relocates definitions relating to drug- and alcohol-related offenses. Assigned to the Transportation and Energy Committee.
13. HB 1173 - Concerning the enactment of the "Uniform Prudent Management of Institutional Funds Act". By Rep. McGihon and Sen. Shaffer. Supported by the CBA LPC Committee. Replaces the "Uniform Management of Institutional Funds Act" with the "Uniform Prudent Management of Institutional Funds Act", drafted by the national conference of commissioners on uniform state laws. Establishes the same standards for managing and investing institutional funds regardless of whether a charitable organization is organized as a trust, a nonprofit corporation, or some other entity. Imposes additional duties on those who manage and invest charitable funds to provide additional protections for charities and also protects the interests of donors who want to see their contributions used wisely. Establishes stricter guidelines on spending from endowment funds. Updates the provisions governing the release and modification of restrictions on charitable funds to permit more efficient management of these funds. Authorizes a court to modify the purposes to which a hospital foundation's funds are dedicated if the foundation proves that continued dedication of the funds to the purposes originally specified is impractical or wasteful. Directs the revisor of statutes to publish, as nonstatutory matter, the official comments to the uniform act. Passed the House and awaiting committee assignment.
In the Senate
14. SB 99 - Concerning extending Medicaid eligibility for persons who are in the foster care system immediately prior to emancipation. By Sen. Sandoval and Rep. Stafford. Allows a person younger than 21 years of age for whom the state made subsidized adoption payments but who did not meet certain federal requirements and who attained 18 years of age or otherwise became emancipated to continue to be eligible for Medicaid. Assigned to the Health and Human Services Committee.
15. SB 100 - Concerning the creation of the "Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act". By Sen. Morse and Rep. Riesberg. Colorado Commission on Uniform State Laws. Enacts the "Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act" drafted by the national conference of commissioners on uniform state laws. Incorporates the jurisdictional rules and the rules relating to cooperation and communication between courts of different states as provided in the uniform act. Assigned to the Judiciary Committee.
16. SB 103 - Concerning a requirement that a portion of the property tax revenues collected by an urban renewal authority in connection with tax increment financing be shared with other local governments. By Sen. Tochtrop. Commencing with the first property tax year in which any payment of property taxes are allocated and paid into a special fund to pay off indebtedness incurred by an urban renewal project, requires an urban renewal authority to make an annual payment to the other public bodies that share in the revenues produced by the property tax levy, including counties, school districts, and special districts, in an amount that is not less than a specified percentage of the amount of revenues from the property tax levy paid into the special fund in that year. Specifies how the amount paid by an urban renewal authority pursuant to the act is to be divided among the other public bodies. Assigned to the Local Government Committee.
17. SB 110 - Concerning technical modifications to statutory provisions governing insurance. By Sen. Kester and Rep. Looper. Allows the commissioner of insurance (commissioner) to adopt rules establishing monthly premium payments, in addition to quarterly, semiannual, and annual premium payments, for insureds under an automobile insurance policy.
Requires the commissioner to survey small group health benefit plan carriers biennially, rather than annually, for purposes of determining the range of health benefit plans available in the small group market. Assigned to the Business, Labor and Technology Committee.
18. SB 112 - Concerning the preservation of a person's exercise of religion. By Sen. Renfroe. Restricts a governmental entity from substantially burdening a person's exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity demonstrates that the application of the burden to the person is both essential to furthering a compelling governmental interest and is the least restrictive means of doing so.
Specifies that the grant of permissible state moneys, benefits, or exemptions is not a violation of the act.
Specifies that a person whose exercise of religion has been burdened by a government entity may assert that violation as a claim or defense in any judicial or administrative proceeding and may obtain such declaratory relief or monetary damages as may be properly awarded by a court. Establishes that if a person prevails in a proceeding to enforce the act, he or she may recover reasonable costs and attorney fees.
Specifies that if a court finds a person abused the protections of this section by filing a frivolous or fraudulent claim, that person may be assessed the governmental entity's court costs and may be enjoined from filing further claims. Assigned to the State Veterans and Military Affairs Committee.
19. SB 114 - Concerning required acts of employee leasing companies by the department of labor and employment. By Sen. Veiga. Requires an employee leasing company to pay wages and unemployment taxes for all covered employees. Specifies that the contract provisions of the "Workers' Compensation Act of Colorado" apply to employee leasing companies and work-site employers equally. Requires an employee leasing company to annually file a renewal of its certification along with evidence that the employee leasing company meets specified financial criteria and to remit a fee as determined by the executive director of the department of labor and employment(department).
Authorizes the department to reduce or waive the bonding requirement for an employee leasing company. Prohibits a person from acting as an employee leasing company without certification from the department. Authorizes the department to take disciplinary action against an employee leasing company and to impose a fine or rescind the ability to make unemployment insurance contributions. Assigned to the Business, Labor and Technology Committee.
20. SB 115 - Concerning a civil action for damages suffered in a gun-free zone. By Sen. Brophy and Rep. Stephens. Creates a civil action to enable a person who is injured in a gun-free zone to recover damages as a result of criminal conduct in the zone if a reasonable person would believe the possession of a firearm in the zone could have helped the person defend himself or herself. Waives sovereign immunity for a claim based on criminal conduct in a gun-free zone. Assigned to the State, Veterans and Military Affairs Committee.
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